Prince Abdulaziz v Apex Global Management Ltd & Anor

An appellate court should give a generous margin of discretion to case-management decisions. It may intervene where the judge misdirected himself in law or reached a perverse decision. A court may require a party personally to sign a disclosure statement, or an analogous statement, where bespoke measures are needed to secure full disclosure and preserve electronic evidence. A foreign social protocol is relevant but may carry little weight if it is not binding in the United Kingdom and is supported by uncertain evidence. Non-compliance may justify an unless order and default judgment. A later solicitor’s statement or changed intention about giving evidence is not a material change if the circumstances were foreseeable. A counterclaim outside the statutory unfair-prejudice jurisdiction may be determined in the same proceedings under the High Court’s general jurisdiction.

These consolidated appeals arose from cross-petitions concerning the affairs of Fi Call Limited and relief under sections 994 to 996 of the Companies Act 2006. In July 2013 Vos J ordered Prince Abdulaziz personally to sign statements concerning disclosure of electronic accounts, devices and communications.

After non-compliance, Norris J made an unless order, struck out the Prince’s defence and entered judgment for Apex under CPR 3.5. Mann J refused to vary the personal signature order, stay the judgment or grant relief from sanctions. The central issues were whether the Prince’s asserted Saudi royal protocol affected the order, whether the procedural consequences were valid and proportionate, and whether judgment should await trial of related claims against other parties.

The Court of Appeal unanimously dismissed all five consolidated appeals.

1. Personal signature order. Case-management decisions attract a generous margin of appellate discretion. Applying Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743, the court would intervene only for legal misdirection or perversity. Vos J had been entitled to make a bespoke order because the proceedings involved serious allegations, disputed electronic communications and a risk of evidence being lost. The interests of the litigants and the public interest in efficient trials were relevant: see Marcan Shipping London v Kefalas [2007] 1 WLR 1864.
2. The asserted foreign protocol was a relevant factor, but Vos J was entitled to give it little weight because it was not binding in the United Kingdom, its evidential basis was uncertain and the allegations made full disclosure particularly important. Requiring compliance with English procedural rules did not infringe the right to a fair trial. CPR 31.10 ordinarily requires personal signature of a disclosure statement, and non-compliance is not merely technical: Arrow Trading v Edwardian Group [2005] 1 BCLC 696. The analogous statements therefore properly required personal signature.
3. Unless order and variation. Striking out is a powerful sanction, but Norris J had carefully concluded that non-compliance jeopardised the fairness of the proceedings and that an agent’s statement would place the other parties at a disadvantage. Under CPR 3.1(7), variation ordinarily requires a material change, material misrepresentation or some other exceptional circumstance. The proposed solicitor’s statement and the later decision not to give evidence arose from foreseeable circumstances and did not justify variation: Tibbles v SIG Plc [2012] 1 WLR 2591.
4. Default judgment and stay. Norris J had jurisdiction to enter judgment on Apex’s counterclaim. The counterclaim did not have to seek relief under sections 994 to 996 of the Companies Act 2006, and any required permission to pursue it was implied. CPR 3.5 permitted judgment on the separate specified-money claim even though related proceedings continued. The court was not required to hold the ring merely because inconsistent outcomes were possible. This was not an exceptional case for reopening judgment following new factors: The Ampthill Peerage case [1977] AC 547, 568. The merits need not be considered in every relief-from-sanctions application, particularly where they depend on disputed facts: CIBC Mellon Trust Co v Stolzenberg [2004] EWCA Civ 827.

1. Court of Appeal (Civil Division): consolidated appeals dismissed on 31 July 2014.
2. High Court, Chancery Division (Companies Court): Vos J made the personal signature order; Norris J made the unless order and entered judgment; Mann J refused variation, a stay and relief from sanctions.