Aspinall's Club Ltd v Lim

An unless order requiring disclosure takes effect where the ordered affidavit materially fails to answer a clear question. A requirement to identify the source of funds may require the respondent specifically to deny that he provided the funds, or to explain how he transferred them to a third party. Confirmation of earlier disclosure is itself a continuing obligation where the order requires correction of previous evidence. Relief from sanctions may be refused where the breaches are serious and significant, unexplained, and the unless order was properly imposed.

Aspinall’s Club claimed approximately £1.995 million from Mr Lim in respect of gambling-related lending. Freezing orders required disclosure of assets and the source of funds used for living and legal expenses.

Following an earlier committal judgment, the court imposed fines and an unless order requiring Mr Lim to file a sworn affidavit addressing specified disclosure matters and confirming or correcting his earlier affidavits. Mr Lim applied for a declaration that he had complied, or alternatively for relief from sanctions under CPR 3.9. The central issues were whether his affidavit complied with the order and whether relief should be granted.

1. The application was refused. Mr Lim had not complied with the Murray Order. The unless order therefore took effect, his Defence was struck out, judgment was to be entered for Aspinall’s Club, and the balance of the fine became payable.
2. Paragraph 3(d)(iii) of Schedule 2 required more than identification of Mr Lim’s wife as the immediate source of payments to his solicitors. In the context of the freezing orders, it required Mr Lim to state clearly that he had not provided the funds, or, if he had, to identify how the funds passed to his wife. The question was sufficiently clear, and the omission was deliberate and material.
3. Paragraph 4 of Schedule 2 required Mr Lim to confirm or correct his earlier disclosure of assets exceeding £20,000 in value. On the balance of probabilities, the evidence established that he had failed to disclose at least one such shareholding. His failure to correct that evidence was a further material breach.
4. The court rejected the submission that the asset issue had been raised too late. The issue concerned whether the affidavit contained false or incomplete confirmation of earlier disclosure, and remained relevant to compliance with the Murray Order.
5. Relief from sanctions under CPR 3.9 was refused. The breaches were serious and significant, no good explanation had been given, and the unless order had been imposed after both parties had addressed its appropriateness. The fact that Mr Lim had taken other steps towards compliance did not make relief just in all the circumstances.

The judgment describes an earlier committal decision by the same court in [2019] EWHC 2379 (QB), followed by the present application concerning compliance with the resulting order. No appellate decision is stated.