Prince Abdulaziz v Apex Global Management Ltd & Anor

The Court of Appeal dismissed consolidated appeals against a series of interim orders of the Companies Court concerning (i) an order requiring personal signature to witness statements dealing with disclosure, (ii) an unless order for non-compliance, (iii) entry of judgment under CPR 3.5, and (iv) refusal to vary or stay those orders. The court held that the first instance judges had acted within the generous case-management discretion accorded by the Civil Procedure Rules and had not made any reviewable error.

The court treated the disputed orders as bespoke measures directed at securing full and timely disclosure of electronic evidence in complex cross-petition unfair prejudice proceedings under sections 994–996 of the Companies Act 2006. The judges were entitled to attach limited weight to a claimed Saudi “protocol” preventing members of the Saudi Royal Family from signing court documents or giving evidence in England and to require personal statements where necessary to preserve evidence and enable expert forensic examination. The entry of default judgment under CPR 3.5 was held to be regular and within the court’s power where a party had been subject to an unless order and failed to comply.

Background and parties:

• These consolidated appeals arise from cross-petitions brought under the statutory jurisdiction to remedy unfairly prejudicial conduct in sections 994–996 of the Companies Act 2006. Apex Global Management Ltd and Global Torch Limited were joint venturers in Fi Call Limited. The Apex parties alleged serious misconduct, relying on emails and recorded conversations; Global Torch and its controllers alleged forgery and misappropriation.
• The appellant, HRH Prince Abdulaziz, was a shareholder in Global Torch and said to be a de facto or shadow director of Fi Call. He and other members of the Saudi royal family invoked a claimed social protocol preventing them from personally participating in litigation or signing court documents.

Procedural history:

• At a case management conference Vos J ordered that specified parties, including the Prince, personally sign statements about disclosure of servers, email accounts and mobile devices (the "personal signature order").
• On non-compliance an unless order was made by Norris J directing that the Prince’s defence be struck out unless he complied. The Prince did not provide a personally signed statement and his defence was struck out.
• A judgment was entered under CPR 3.5 for an identified sum following the default. Applications to vary the personal signature order, for relief from sanctions and to stay or set aside the judgment were refused by Mann J.

Issues framed by the court:

• Whether Vos J erred in requiring personal signature despite the asserted Saudi protocol.
• Whether Norris J’s unless order and the entry of judgment under CPR 3.5 were disproportionate or irregular.
• Whether Mann J should have varied the order or granted relief from sanctions or a stay pending trial.

Court’s reasoning and conclusions:

• The Court of Appeal emphasised the wide appellate deference owed to case-management decisions and concluded Vos J had not misdirected himself or reached a perverse conclusion. The personal signature order was a tailored measure aimed at preserving fragile electronic evidence and ensuring credible disclosure where credibility of emails and recordings was central to the trial.
• The court accepted that the claimed protocol was a material consideration but had been given appropriate weight; it was not binding in the United Kingdom and the evidence for it was uncertain and late. The existence of other devices (for example agents signing statements of truth under CPR) did not render Vos J’s bespoke order inappropriate in the circumstances.
• Norris J’s unless order and the subsequent entry of judgment under CPR 3.5 were lawful, proportionate and properly explained: striking out and entering judgment are proper sanctions for non-compliance with a disclosure-related order that threatened the fairness of proceedings.
• Mann J was correct to refuse variation, relief from sanctions and a stay: there had been no material change in circumstances and reopening the judgment would undermine the effective operation of case management and sanctions.

The court therefore dismissed the appeals, upholding the case management and sanctioning decisions below.

The appeals were dismissed. The Court of Appeal held that the first-instance judges had not made any reviewable error in making a bespoke personal-signature disclosure order, in imposing an unless order for non-compliance, in entering judgment under CPR 3.5, or in refusing variation/relief from sanctions or a stay. The judges had acted within their wide case-management discretion; the claimed Saudi protocol was not binding in the United Kingdom and carried limited weight, and the sanctions for non-compliance were justified to protect the fairness and practical conduct of the trial.

Appeal from the High Court, Chancery Division (Companies Court) (orders of Vos J, Norris J and Mann J in the period July–November 2013), consolidated and determined in the Court of Appeal: [2014] EWCA Civ 1106. High Court proceedings were cross-petitions under sections 994–996 Companies Act 2006 (case no. 10850OF2011 before Vos, Norris and Mann JJ).