Moke International Ltd & Anor v Ming International Holdings Ltd & Ors

Where a mandatory order has not been complied with, the court may appoint another person to perform the required act under section 39 of the Senior Courts Act 1981 and CPR r.70.2A. The power is not confined by the type of document or the purpose for which the order is made. The court must be satisfied that the conditions in CPR r.70.2A are met and that the proposed step is practicable and likely to achieve compliance. A default judgment is not a judgment on the merits. Correspondence from persons without authority to represent the relevant parties, which does not address the substance of the application, may be given no weight.

The claimants obtained a default judgment from Snowden J under CPR r.12.42. The order declared that the first claimant owned shares in a Monaco company and required the second and third defendants to transfer their shares to it.

The order was not complied with. The claimants applied for a Master of the Chancery Division to be authorised to sign the necessary share-transfer documents and for related costs orders. The defendants were absent and had not taken steps to acknowledge service or set aside the default judgment. The court also considered correspondence and an attempted application made by a person who was not authorised to represent the defendants.

1. The application was granted. The court appointed a Master to sign the necessary share-transfer documents so that Snowden J’s order could be complied with.

2. Section 39 of the Senior Courts Act 1981, reflected in CPR r.70.2A, permits the court, where a mandatory order has not been complied with, to direct that the required act be performed by another person appointed by the court. The power is not restricted by the nature of the document or the purpose for which the order is sought. Astro Exito Navegacion SA v Chase Manhattan Bank NA [1983] 2 AC 787 provided an example of a Master being appointed to perform such an act.

3. The conditions in CPR r.70.2A were satisfied. The proposed appointment was practicable and was likely to achieve the objective of securing final compliance with the existing order.

4. The defendants’ failure to engage with the proceedings did not justify postponing the hearing. They had been substantially out of time to file an acknowledgment of service and had offered no apparent good reason. The court considered it highly unlikely that a late acknowledgment could be accepted under the Denton principles, referring to Taylor v Giovani Developers [2015] EWHC 328 (Comm).

5. A default judgment is not a judgment on the merits: Football Dataco Ltd v Smoot Enterprises Ltd [2011] 1 WLR 1978. The correspondence received did not address the substance of the application. The material from Mr Peters was given no weight because he was not authorised to act for any relevant defendant, and the attempted application was directed at parties whom he could not represent.