The Ministry of Justice of the Kingdom of the Netherlands v Huseyin Baybasin

An order varying a restraint order should not ordinarily be made ex parte where it may affect the interests of the party subject to restraint, the foreign authority requesting assistance, or a prosecuting authority acting in a different capacity. Proper notice and a fair opportunity to be heard are required. Where an agent or legal representative appears to have conflicting interests, the court should ensure that the conflict is identified and managed, including by considering whether informed consent and suitable arrangements exist. An order made through materially defective procedure may be set aside, together with consequential orders, and the matter directed to a properly notified inter partes hearing.

The proceedings concerned a restraint order made in 1998 under the Drug Trafficking Act 1994 in support of Dutch confiscation proceedings. In December 2022, the enforcement receiver applied without a hearing or proper service to vary that order so that the property could be sold. Kerr J granted the application. Master Eastman subsequently granted permission to issue a writ of possession.

Huseyin Baybasin applied to set aside Kerr J’s order. The Dutch Ministry of Justice was not represented. The CPS appeared as prosecutor in related confiscation proceedings concerning Mehmet Baybasin, rather than as the claimant’s agent. The central issues were whether the December 2022 application had been procedurally fair and how the apparent conflict between the CPS’s two capacities should be managed.

1. Application granted. Kerr J’s order varying the 1998 restraint order was set aside. Master Eastman’s consequential order and any writ of possession issued under it were also set aside.
2. The application to vary should have been made for an inter partes hearing on proper notice to Huseyin, to the CPS as agent and legal representative of the Dutch claimant, and separately to the CPS in its capacity as prosecutor in Mehmet’s confiscation proceedings. The failure to serve Huseyin and the claimant, combined with the absence of a hearing, created a serious risk that their interests had not been fairly presented or considered.
3. The court was particularly concerned that the CPS appeared to have conflicting interests. In these proceedings it acted for the Dutch claimant, whose position was that the restraint order should remain unchanged. In the Crown Court proceedings it acted as prosecutor in support of Mehmet’s confiscation enforcement, which proceeded on the basis that the property was owned equally by the four brothers. The CPS was directed urgently to consider whether it could continue to act for the claimant and, if so, what arrangements and informed consent were required.
4. The enforcement receiver was directed urgently to consider whether, and in what capacity, any application should be pursued. The CPS, as prosecutor, was to consider separately whether it wished to make an application. The claimant was then to state its position, followed by an exchange of evidence and a proper inter partes hearing.
5. The court noted that the Dutch confiscation order might remain subject to appeal for the purposes of registration under section 40 of the Drug Trafficking Act 1994, but that issue was not finally determined. Costs were reserved, with any application to be dealt with by written submissions.

• High Court (Administrative Court): [2023] EWHC 1147 (Admin) — Kerr J’s variation order and consequential possession order set aside; directions given for properly notified applications and an inter partes hearing.
• Court of Appeal (Criminal Division): leave to appeal against the Crown Court receivership decision refused on 11 February 2022: [2022] EWCA Crim 357.