Otkritie International Investment Management Ltd & Ors v Jemai

An appellate court deciding whether to discharge or overturn a committal order must determine whether the lower court was wrong. It should not conduct a fresh trial where the first-instance judge heard the relevant evidence and understood the underlying litigation.

Additional evidence will justify reopening the factual findings only where compelling reasons show that the original conclusions are fatally undermined or that refusal would cause injustice. The 21-day period for appealing runs from pronouncement of the decision, not from drawing up or sealing the order. Applications for extensions of time require the rigorous approach applicable to relief from sanctions, and an applicant must satisfy the relevant criteria in all the circumstances.

The defendant appealed against orders made in complex fraud-related litigation. Eder J committed her to prison for contempt, including false statements and failures to comply with disclosure orders. Flaux J later dismissed her application to discharge that committal order: [2015] EWHC 2251 (Comm).

She also sought permission to appeal out of time against orders concerning jurisdiction, costs and alternative service. The Court of Appeal therefore considered whether she had received proper notice, whether the contempts were proved beyond reasonable doubt, whether the appellate court should reconsider the factual findings, and whether extensions of time and permission to appeal should be granted.

Lady Justice Gloster gave the leading judgment, with which Lord Justice Lewison agreed. The Court dismissed the appeal against Flaux J’s order, the appeal against the committal order, and all applications for extensions of time and permission to appeal.

1. Notice and appellate review. Under the Civil Procedure Rules 1998, the question on the appeal against Flaux J was whether his decision was wrong. No case was advanced that it was unjust because of serious procedural or other irregularity. Flaux J had only to be satisfied on the balance of probabilities that Mrs Jemai had proper notice of the committal hearing. He was entitled to rely on the history of the litigation, the email correspondence, notice given to her Swiss lawyer, and her inconsistent evidence. The alternative-service orders were properly made and there was no basis for setting aside the committal order.
2. Merits of the contempt findings. Once proper notice was established, the appeal against Eder J’s findings had to be considered principally on the evidence before him. The Court of Appeal was not well placed to conduct a factual retrial of issues determined after a lengthy trial. Additional documents would justify intervention only if they compellingly undermined the conclusions or showed that refusal to reconsider them would cause injustice. The approach was consistent with the guidance in Summers v Fairclough Homes Ltd [2012] 1 WLR 2004. Mrs Jemai’s further material did not meet that threshold.
3. Time and permission to appeal. Under rule 52.4(2), the 21-day period ran from pronouncement of the relevant decision, not from drawing up or sealing the order. The principles governing extensions required the rigorous approach identified in R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472 and Denton v TH White Ltd (De Laval Ltd, Part 20 defendant) (Practice Note) [2014] EWCA Civ 906; [2014] 1 WLR 3926. Mrs Jemai had not shown a sufficient reason for the delays or that an extension was justified in all the circumstances. The size of the costs order did not create a prospect of success, and the proposed appeals disclosed no discernible substantive point.

• Court of Appeal (Civil Division): dismissed the appeals against Flaux J’s order and Eder J’s committal order, and refused the applications for extensions of time and permission to appeal: [2016] EWCA Civ 1316.
• High Court, Queen’s Bench Division, Commercial Court: Eder J made the committal and related orders. Flaux J dismissed the application to discharge the committal order: [2015] EWHC 2251 (Comm).