Rahman v Rahman & Ors

A party seeking to vary a consent restraint order must make the application promptly and provide evidence addressing the grounds relied upon. A liberty to apply permits an application to the court; it does not guarantee that the requested variation will be granted. A proposed variation must provide adequate protection against enforcement of the opposing party’s potential judgment. A general release permitting distributions, followed only by notification after payment, may be inadequate. New factual assertions or financial evidence should not ordinarily be relied upon where the opposing party has had no fair opportunity to respond. Unsupported assertions of financial need, particularly where the applicant’s evidence is unreliable or incomplete, will not justify variation.

The judgment concerned an application by Mr Azizur Rahman and the Icon companies to vary restraint injunctions contained in a consent order made by Mr Justice Arnold on 15 September 2017. The injunctions restricted payments by Icon College of Technology and Management Ltd to Azizur Rahman and Dr Nabi, subject to specified salary and business-expense exceptions.

The application was made after the dismissal of a related liability appeal, recorded at [2019] EWHC 1011 (QB). The applicants sought either a general release allowing distributions subject to notice and a balancing retention, or permission for a one-off dividend. The central issues were whether the application was made too late, whether the evidence established a genuine financial need, and whether the proposed safeguards adequately protected the claimant’s prospective damages and costs claim.

The variation application was dismissed.

1. Promptness and procedural fairness. The applicant knew from the draft appeal judgment that substantial financial consequences would follow and should have identified and pursued any necessary variation promptly. The application was made only at a late stage, despite recognising that an urgent court application was required. The delay itself weighed against granting relief and cast doubt on whether the asserted need was genuine.
2. Effect of liberty to apply. The liberty to apply in the Arnold order merely enabled either party to bring a proposed variation before the court. It was not a guarantee that the court would grant the application. The correspondence did not establish any mutual assumption that future payments would be permitted.
3. Adequacy of the proposed release. A general release allowing any distribution, with notification only within seven days after payment, would not adequately protect the claimant. Even if financial need had been established, it could justify no more than consideration of a limited, defined variation such as the alternative one-off dividend proposal.
4. Evidence of need and sufficient funds. The applicants did not provide a sufficient funds assurance, personal financial information, or a proper explanation of substantial earlier withdrawals. The late assertion that sufficient assets remained to meet any judgment was first made in reply evidence and could not fairly be relied upon because the claimant had no opportunity to respond. The asserted financial need was therefore unsubstantiated.
5. The court found no basis for the allegations that the claimant’s procedural stance amounted to an abuse of process or obstruction of justice. The variation application failed on the grounds addressed, making it unnecessary to determine other contentions, including the argument based on Chanel v Woolworth [1981] 1 WLR 485.

The judgment records that a related Queen’s Bench appeal by Mr Azizur Rahman had previously been dismissed by the same judge: [2019] EWHC 1011 (QB). This judgment determined the subsequent variation application in the Business List.