Workman v Forrester & Ors

A court may enforce an order by making an unless order which, upon non-compliance, debars a defendant from contesting quantum and directs judgment for a specified sum. The jurisdiction is not confined by the ordinary rule that, following judgment for damages to be assessed, the claimant must prove the loss and the defendant may contest all quantification issues consistent with the determination of liability.

That ordinary process may be withheld where persistent non-compliance is calculated to frustrate the proceedings. The appropriate sanction is a matter for the court’s discretion. A claimant obtaining a freezing order without notice customarily bears primary responsibility for facilitating an inter partes return hearing, but a court may refuse a substantially delayed request to relist after considering all intervening circumstances.

The appellant had been convicted of murdering his former wife while financial relief proceedings between them remained pending. Her executrix and two sons brought civil proceedings, including claims under the Fatal Accidents Act 1976 and a novel claim based by analogy on the forfeiture rule. They obtained a worldwide freezing order without notice and subsequently obtained default judgment on liability.

Following the appellant’s persistent failure to disclose his assets, a district judge made an unless order debarring him from defending quantum and directing judgment for £1,503,579.50 upon further non-compliance. The appellant also sought, more than two years after the freezing order, to secure the return hearing which had not taken place.

The appeals concerned whether the quantified judgment was a permissible sanction without evidence of loss and whether the original freezing-order application should be relisted.

1. Both appeals dismissed. The district judge had jurisdiction to make an unless order directing entry of judgment for a quantified sum upon continued non-compliance. The judge did not err in principle when exercising that discretion.

2. Ordinarily, a judgment for damages to be assessed determines liability but leaves questions of quantification open. The claimant must prove the loss by evidence, whether or not the defendant participates. That principle was established by Lunnun v Singh [1999] CPLR 587 and Strachan v The Gleaner Co Ltd [2005] 1 WLR 3204.

3. The ordinary assessment process did not restrict the court’s power to impose an effective sanction for persistent breach. The disclosure order was relevant both to policing the freezing order and to quantifying the claim. The appellant’s flagrant and prolonged non-compliance could frustrate the assessment of damages. JSC BTA Bank v Ablyasov (No 8) [2013] 1 WLR 1331 confirmed the jurisdiction to make a debarring unless order in response to non-compliance with asset-disclosure obligations.

4. The district judge could instead have debarred the appellant while requiring the respondents to prove their loss. He was not obliged to adopt that lesser sanction. Nothing in the rules or authorities prevented an unless order specifying quantified judgment as the consequence of default. A litigant may be deprived of the ordinary assessment process where his conduct is calculated to frustrate the proceedings for his own advantage.

5. The court declined to decide whether the pleaded claim was for a “specified amount of money” within CPR 12.4(1)(a). That issue had not been considered below and was unnecessary to the confined appeal. There was no procedural error capable of engaging CPR 3.1(7).

6. A claimant benefiting from a freezing order obtained without notice customarily bears primary responsibility for facilitating reconsideration at a return hearing. That responsibility continued after default judgment. Nevertheless, the appellant could also have sought a hearing and delayed for more than two years. By then judgment had been entered, disclosure remained inadequate, there was evidence of dissipation, and questions concerning legal expenses could be addressed under the order’s exceptions. Carr J was entitled to refuse relisting.

1. Court of Appeal (Civil Division): Dismissed both appeals in [2017] EWCA Civ 73. It upheld the quantified unless-order sanction and the refusal to relist the freezing-order application.

2. High Court: Carr J dismissed the appellant’s application to relist the original freezing-order application on 3 October 2014.

3. High Court: HH Judge Butler, sitting as a judge of the High Court, dismissed the appeal from District Judge Rouine on 1 July 2014 and also dismissed a separate application to set aside the freezing order.

4. County court proceedings: District Judge Rouine dismissed the application to set aside the default and consequential judgments on 12 November 2013. District Judge Anson had made the unless order on 21 December 2012, and District Judge Knifton entered quantified judgment on 29 January 2013.