Jemai v Otkritie International Investment Management Ltd & Ors

Permission to appeal may be granted despite the usual reluctance to reopen factual findings after a lengthy trial where the trial judge saw and assessed the witnesses. The threshold is met where identified errors give the proposed appeal a real prospect of success, particularly in relation to a defendant whose alleged involvement was materially limited. A separate arguable legal issue may also justify permission, including whether equitable compensation should credit substantial recoveries from traceable funds. Permission may be refused for a ground based on orders in proceedings that did not involve, or directly affect, the applicant.

Ms Jemai, the 15th defendant in a substantial Commercial Court fraud action, applied for permission to appeal orders made by Eder J on 14 March and 29 April 2014. The High Court held her liable for knowing receipt and dishonest assistance in US$20,740,000 and CHF 32,205. The alleged dishonest assistance concerned a subsequent money-laundering exercise through Vantax Ltd, although she personally received approximately £6,000.

The application raised whether the trial judge had made errors in analysing the evidence concerning her involvement and, alternatively, whether any equitable compensation should be reduced by sums recovered from funds traceable to the Vantax account. A further ground relied on subsequent orders in the action.

Permission to appeal was granted, except in relation to ground 9.

1. The court recognised that it will usually not entertain an appeal challenging careful factual findings made after a lengthy trial where the judge saw the witnesses and considered their evidence. That reluctance did not prevent permission here. The proposed grounds identified obvious errors in the judge’s treatment of the evidence relating to Ms Jemai, and there was a real prospect that the conclusions concerning her involvement were wrong. Her alleged role was materially more limited than that of the other defendants.
2. Even if the findings supporting liability for dishonest assistance were sustained, there was an arguable point of law concerning the equitable compensation order. The issue was whether Ms Jemai should receive credit for substantial sums recovered by the claimants from funds apparently traceable to the Vantax account through which she was alleged to have assisted in laundering the fraud proceeds.
3. Permission was refused on ground 9. That ground relied on subsequent orders in the action to which Ms Jemai was not a respondent and which did not directly purport to affect her.
4. The court indicated that it would have granted permission on the papers had the application been referred to it in that way.

• Court of Appeal (Civil Division): On 16 June 2015, Lady Justice Gloster granted permission to appeal except in relation to ground 9. The judgment is reported at [2015] EWCA Civ 766.
• High Court, Queen’s Bench Division, Commercial Court: Eder J made the substantive orders dated 14 March and 29 April 2014, finding Ms Jemai liable for knowing receipt and dishonest assistance.