Nordic Trustee AS & Ors v Lakhani & Ors

An English court may make an order under Civil Procedure Rules 1998, Part 71, requiring an individual judgment debtor who is a party to English proceedings but resident abroad to attend examination and produce documents. The presumption against extra-territoriality has limited application in that situation. A treaty providing for evidence to be obtained by Letters of Request does not, without clear wording or evidence of foreign-law unlawfulness, prohibit a Part 71 order or make it unavailable. Even proven foreign-law difficulty is ordinarily a discretionary factor and will not generally excuse compliance with obligations owed to the English court. An adjournment requires a proper evidential basis; delay, without a valid reason, is insufficient.

The fourth claimant obtained summary judgment against the second defendant, a judgment debtor resident in Dubai. Master Davison subsequently made an order under Civil Procedure Rules 1998, Part 71, requiring the debtor to attend examination by video link and produce specified documents.

The debtor applied to set aside the order or adjourn the examination. He argued that service was defective, that the United Kingdom–United Arab Emirates treaty required evidence to be obtained through Letters of Request, that the order might contravene UAE law and sovereignty, and that the claimant had failed to make full and frank disclosure. The service challenge was withdrawn at the hearing. The central issues were whether the Part 71 order could lawfully be made and whether an adjournment was justified.

1. Application dismissed. The Part 71 examination was to proceed as listed, and the judgment debtor was ordered to pay the trustee’s costs.
2. The application had been made on notice. Accordingly, there was no duty of full and frank disclosure of the kind applicable to a without-notice application. In any event, the claimant had drawn attention to the treaty and its possible relevance. There was no evidence that compliance with the order was unlawful in the UAE.
3. The service objection had no merit. Rule 71.3 required personal service unless the court ordered otherwise, and the earlier order authorising alternative service was effective. The debtor had received abundant notice of the hearing and of the consequences of non-attendance.
4. The obligations of parties to English proceedings concerning disclosure and evidence are generally governed by the lex fori. Following Masri v Consolidated Contractors International UK Ltd (No.2) [2008] 1 All ER (Comm) 305, at least by analogy, treaty arrangements for obtaining evidence did not displace Part 71 in relation to examination of a party to the English proceedings.
5. Binding authority in Masri v Consolidated Contractors International UK Ltd (No.4) [2010] 1 AC 90 established that the presumption against extra-territoriality did not apply in the same way to oral examination of an individual judgment debtor who was a party to the English proceedings. The treaty’s provision for Letters of Request was permissive and could not sensibly be construed as prohibiting a Part 71 order.
6. Pearl Petroleum Company Ltd v The Kurdistan Regional Government of Iraq [2017] DIFC ARB 003 established only that a treaty ratified by the UAE formed part of UAE domestic law. It did not establish that this Part 71 order was unlawful. Even if foreign-law unlawfulness had been shown, it would have been a discretionary factor, and the court would not generally excuse compliance with obligations to the English court.
7. No valid reason for an adjournment had been established. The judgment debt remained unsatisfied, the debtor had had sufficient notice, and his evidence did not justify further delay.

The judgment was a first-instance decision concerning an application arising from earlier orders in the same proceedings.

• High Court (Commercial Court): Foxton J had granted summary judgment against the second defendant on 14 July 2020. Master Davison later made the Part 71 examination order dated 11 January 2021. Deputy Master Kay QC dismissed the application to set aside or adjourn that order on 16 February 2021, giving reasons on 18 February 2021.