Gharavi-Nakhjavani v Pelagias

Procedural orders in long-running litigation must be construed in the context of the court’s active case management and the sequence of orders made. A later order identifying particular accounts, or revoking one account, does not necessarily revoke an earlier order requiring determination of matters identified in a witness statement. The question is whether the earlier order was actually revoked, overtaken or replaced. A party who has long known of claims, has been directed to respond, has cross-examined on them, and has had an opportunity to file further evidence cannot ordinarily complain of procedural unfairness after failing to use those opportunities. Finality is a legitimate consideration where litigation has become disproportionately prolonged.

The claimant appealed from decisions of Master Teverson in the Chancery Division concerning a long-running partnership and property accounting dispute. The Master had determined an account relating to the property and awarded the defendant sums on five claims labelled STP1, STP7, STP8, STP9 and STP11. The claimant argued that the Master lacked jurisdiction because an order for an account of the ABL Estates business had later been revoked, and that he had not had a fair opportunity to adduce documentary evidence in response.

The central issues were whether the earlier order of 18 July 2012 remained operative in relation to the STP claims, and whether the conduct of the proceedings made their determination unfair.

The appeal was dismissed.

1. Jurisdiction. The orders of 7 September 2012 and 23 April 2013 had to be read in the context of the Master’s active case management and the complete sequence of procedural orders. The order of 18 July 2012 required the defendant’s account, as contained in and exhibited to his witness statement of 22 March 2012, to be taken. That order was not revoked. The later order of 7 September 2012 did not subsume, overtake or replace it, particularly because the earlier order covered matters outside the ABL Estates account, including STP1.
2. The consent order of 23 April 2013 revoked the order for a general account of ABL Estates. It did not revoke the separate and still-subsisting order of 18 July 2012 concerning the matters in the defendant’s witness statement. The Master therefore had jurisdiction to determine the STP claims.
3. Fairness. The claimant had known for years that the claims were advanced. He had been given directions requiring responses, his counsel cross-examined on the claims, and he had an opportunity to file further evidence during the adjourned hearing. He could also have sought an adjournment when it became clear that the Master would determine the claims. In those circumstances, the hearing was not unfair.
4. The claimant’s agreement to dispense with the complete ABL Estates account, and his failure to present his full case on the STP claims, meant that he could not later complain of the consequences. The court emphasised that finality was long overdue in the unusually prolonged litigation.

• Court of Appeal (Civil Division): The appeal was dismissed unanimously.
• High Court of Justice, Chancery Division: Master Teverson determined the property account and the STP claims, giving judgment for the defendant on the successful STP claims. The Court of Appeal held that the relevant procedural orders authorised that determination and that the hearing was fair.