Asia Islamic Trade Finance Fund Ltd v Drum Risk Management Ltd & Ors

Committal proceedings may proceed in a respondent’s absence only in exceptional circumstances. The court must consider fairness to the respondent and the applicant, including whether the absence was deliberate, whether an adjournment may secure attendance, the likely delay, representation, the disadvantage caused by absence, and the public interest in timely determination.

Proof of serious contempt in the respondent’s absence does not ordinarily justify immediate sentence. The court should consider an adjournment, particularly where imprisonment is possible, so that the respondent may attend, purge the contempt, or present mitigation.

The claimant sought declarations that Arex LLP, ASD Enerji Madencilik Petrol Ürünleri Sanayi ve Dış Ticaret Anonim Şirketi, and Mr Atilla Doğan were in contempt for failing to comply with disclosure obligations in worldwide freezing orders. The defendants did not attend or provide compliant sworn disclosure. The application raised whether the court should proceed in their absence, whether the disclosure failures constituted contempt, whether Mr Doğan was personally liable for corporate breaches, and whether sentence should be imposed immediately.

1. Proceeding in absence. The proceedings were quasi-criminal and engaged Article 6. Applying the approach summarised in JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch), the court proceeded in the defendants’ absence. They had been properly served, repeatedly informed of the seriousness of the proceedings and given ample opportunities to attend, obtain representation and comply. Their absence was deliberate, and a further adjournment was unlikely to secure attendance or materially improve the fairness of determining the straightforward allegations.
2. Contempts proved. To the criminal standard, Arex, ASD and Mr Doğan had deliberately and wilfully failed to provide the information and sworn affidavits required by paragraphs 11 and 12 of the freezing orders. The material supplied did not provide complete accounts of assets, did not state the position at the relevant date, and did not adequately address the coal or any sale proceeds.
3. Personal liability. Mr Doğan was an officer of ASD for the purposes of CPR 81.4(3), but the evidence did not establish that he was a director or officer of Arex LLP. He was nevertheless personally liable for the corporate contempts because he had procured or assisted the breaches and had caused the companies’ refusal to comply.
4. Sentence. Following the approach in JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch), the court adjourned sentence and indicated that a significant term of imprisonment was realistically possible. Mr Doğan was to have an opportunity to remedy the defaults, purge the contempt and present mitigation. A bench warrant was to issue for his attendance at the sentencing hearing.