Apex Global Management Ltd & Anor v FI Call Ltd & Ors

Where a statement of case is struck out under an unless order, judgment may be entered under CPR 3.5 for a qualifying monetary claim even though unrelated claims remain in the same pleading. Claims outside the rule may be abandoned without formal discontinuance or amendment if the result clearly confines the judgment application to the qualifying claim.

Relief from sanctions will not ordinarily be granted where the defaulting party has not complied with the underlying order, particularly where personal responsibility for disclosure is essential and the proposed alternative gives weaker accountability. Case-management provisions and the proximity of a later trial do not undermine a judgment regularly entered under CPR 3.5.

The judgment concerned two applications in conjoined unfair-prejudice proceedings concerning Fi Call Ltd. Prince Abdulaziz applied to set aside or stay a judgment entered after his defence was struck out for failing to comply with an order requiring him personally to sign a disclosure statement. The judgment related to a monetary claim of approximately US$5.984 million plus interest and costs.

The Apex parties also applied to strike out or clarify parts of the Global Torch parties’ amended defence and counterclaim, including alleged proxy pleadings, historic allegations concerning Mr Almhairat, and assertions of fiduciary duties and duties of good faith.

1. Application to set aside or stay judgment. The judgment entered under CPR 3.5 was not irregular. Although the pleading originally contained non-monetary relief, the claims in the relevant prayer were properly construed as claims against Fi Call Ltd alone. The reference to Prince Abdulaziz was descriptive. The separate prayer concerned a distinct section 994 claim and was irrelevant to the availability of judgment on the monetary claim.
2. Abandonment was sufficient to remove the additional claims for the purposes of CPR 3.5. Requiring formal discontinuance or amendment would frustrate the rule’s objective of providing a quick and efficient route to judgment after non-compliance with an unless order.
3. There was no sufficient compliance with the order requiring Prince Abdulaziz personally to sign the disclosure statement. Communicating his answers through his solicitor did not place him in the same position as other individuals, who were directly exposed to cross-examination and contempt or analogous sanctions. The proposed approach would also amount to an impermissible variation or indirect appeal from the earlier order.
4. The continuing trial, the possibility that related issues might be decided against other parties, case-management considerations under CPR 1.4(2)(i), and the avoidance of multiplicity of proceedings under section 49(2) of the Senior Courts Act 1981 did not justify relief. The availability of a substantive defence was largely irrelevant after the relevant default. The asserted royal protocol was a matter of choice and did not engage protected characteristics under sections 4, 9 or 10 of the Equality Act 2010. The applications to set aside or stay were refused.
5. Pleadings. An equivocal pleading capable of being controlled at trial should not necessarily be struck out at an interlocutory stage. Paragraph 151 was allowed to stand only if qualified to make clear that it was advanced for the participating parties. Other alleged proxy pleadings were left for the trial judge. A new claim for repayment of personal loans was struck out because it had been introduced contrary to the order permitting fresh pleadings.
6. Historic allegations were allowed to proceed in substantial part. They were potentially relevant to the parties’ relationship and trust and confidence, but further particulars were ordered concerning wrongly drawn cheques, the circumstances in which matters were discovered, and the party discovering them. One broad allegation was restricted to two identified documents, and an inadequately particularised fraud allegation was struck out.
7. Assertions that the parties owed each other fiduciary duties and duties of good faith were not struck out, but particulars were ordered identifying their source, the facts relied upon, and their significance for the defence and counterclaim.

The proceedings had generated earlier applications and appeals, including decisions by Vos J and Norris J. The present judgment determined the applications to set aside or stay the judgment entered against Prince Abdulaziz and the applications concerning the amended pleadings.