Super Max Offshore Holdings & Anor v Malhotra

The claimants brought multiple committal applications for contempt based on alleged breaches of a series of interlocutory orders made in the Commercial Court (the Picken Order, Baker orders, the Males Order and orders of Popplewell J) and for other contempts between 20 December 2016 and 24 March 2018. The court applied the criminal standard of proof (beyond reasonable doubt) but made clear that adverse inferences could be drawn from the defendant's deliberate refusal to give evidence when explanation was available.

The judge found proven, beyond reasonable doubt, that the defendant had: (i) persisted with and directed a programme to remove senior managers and to populate a parallel management structure in breach of the Picken Order and subsequent orders; (ii) made knowingly false statements in a witness statement contrary to the standard in CPR 32.14; (iii) solicited and received substantive communications from an employee appointed by him (Sameer Khan) in breach of orders restraining communication with Relevant Employees; (iv) caused and procured the filing of criminal complaints in Dubai intended to deter or obstruct key witnesses from attending the English trial; and (v) sent abusive and threatening WhatsApp/SMS messages to senior management amounting to prohibited communications and intimidation of witnesses.

The court rejected the defendant's challenges based on alleged defects in personal service by exercising its discretion under CPR 81.8 and the Practice Direction (81PD para 16.2) to dispense retrospectively with personal service where the defendant had notice of the orders. The court also rejected the submission that foreign (UAE) proceedings created a lawful justification for the September 2017 criminal complaints, concluding that any duty to report under UAE law did not justify the timing and effect of those complaints in relation to the English proceedings.

Background and procedural posture. These are consolidated applications for committal brought by Super Max Offshore Holdings and Actis against Rakesh Malhotra for alleged contempts of a number of interlocutory Commercial Court orders made between December 2016 and March 2018 and for other acts said to obstruct or interfere with the English proceedings. The earlier liability trial before Popplewell J (October 2017; judgment 13 December 2017) is part of the factual matrix and, by earlier case management, parts of that judgment were made admissible for the purposes of Applications 3 and 4. The committal applications were heard by Burton J over a number of days in March 2020.

Nature of the applications. The claimants sought committal for contempt on multiple bases: breaches of the Picken Order and continued interlocutory orders (including taking steps to dismiss or procure dismissal of senior employees and acting as or purporting to act as Group CEO); knowingly false statements in a witness statement (CPR 32.14); prohibited communications with Relevant Employees in breach of orders; victimisation and intimidation of witnesses (including abusive WhatsApp messages); and procurement of criminal complaints in Dubai that were intended to deter or obstruct witnesses from attending the English trial.

Issues the court had to decide.

• Whether the defendant, his agents or persons acting on his instructions breached the terms of the interlocutory orders by procuring or implementing dismissals, making announcements, cancelling ESOPs, appointing persons and otherwise communicating with employees.
• Whether statements in the defendant's witness statements were knowingly false and therefore contempt under CPR 32.14.
• Whether WhatsApp/SMS messages to senior management constituted prohibited communications, intimidation or victimisation and/or steps to procure removal of employees.
• Whether the filing of criminal complaints in Dubai was procured or encouraged by the defendant to prevent witnesses attending the English trial and whether any asserted foreign-law duty justified that conduct.
• Whether any defects in personal service of the interlocutory orders meant the contempts could not be established, or whether the court should retrospectively dispense with personal service under CPR 81.8 and PD 81.

Court’s reasoning and findings. The judge applied the criminal standard of proof but also permitted adverse inferences from the defendant’s deliberate non-attendance and refusal to give evidence. He scrutinised documentary and telephone records, contemporaneous emails and the evidence of Claimant witnesses (including cross-examination). On that basis he rejected the defendant's account that he had countermanded the dismissal instructions after learning of the Picken Order, concluding instead that he had continued to encourage and implement the dismissals and related steps, approved announcements and cancelled ESOPs. The court found the defendant had knowingly made false statements in his witness statement about having given reversal instructions (CPR 32.14) and had backdated documents and contracts (e.g. the appointment of Sameer Khan) to disguise the timing of acts.

The court also found that the defendant used appointees and intermediaries (including Khan, Wagh, Awwad and Chaudhuri) to communicate with and influence employees in breach of orders restraining communication with Relevant Employees. WhatsApp/SMS messages sent in March 2018 to senior management were found to be abusive, threatening and intended to intimidate and to put pressure on witnesses to resign. The September 2017 Dubai criminal complaints were held to have been procured with the intention of frustrating the attendance of AM and Mr Desai at the English trial; the court rejected the defence that compliance with an alleged UAE duty to report crimes justified the timing and effect of those complaints.

Subsidiary findings. The judge made specific findings that certain alleged contempts were not proved (for example some disputed IT-access approvals and certain preparatory steps where the evidence did not reach the requisite standard beyond reasonable doubt), and that Applications 3 paragraphs 11 and 12 (alleging knowing falsity in relation to some Dubai complaints) were not ordered against the defendant. He exercised the court's discretion to dispense retrospectively with personal service where the defendant had notice through other means.

At first instance the court found the Defendant guilty of contempt in respect of multiple grounds. The court held that the claimant applications succeeded in part: the Defendant was in contempt beyond reasonable doubt for breach of the Picken Order (subparagraphs (a)–(f)) and for certain subsequent appointments ((j) and (k)), for making knowingly false statements in a witness statement contrary to CPR 32.14, for soliciting and receiving directed communications from an employee (Sameer Khan) in breach of orders, for procuring criminal complaints in Dubai intended to interfere with the due administration of justice, and for abusive and threatening communications to witnesses. The court rejected the defendant's defences as to lack of personal service by exercising its discretion under CPR 81.8 and Practice Direction 81PD to dispense with personal service where the defendant had notice. Some alleged contempts were not proved and the court did not find proved the allegations in Application 3 paragraphs 11 and 12; accordingly the committal applications were allowed in part on the bases summarised above.