Commercial Bank Of Dubai PSC & Ors v Abdalla Juma Majid Al Sari & Ors

An application to set aside an order made in the absence of a party under Civil Procedure Rules 1998, rule 39.3, requires prompt action, a good reason for non-attendance and a reasonable prospect of success. The requirements are cumulative. Deliberate evasion of proceedings, unreliable evidence and failure to seek variation of an order will weigh strongly against relief.

In sentencing for contempt, the court assesses culpability and the harm caused, intended or likely to be caused. Where custody is justified, the sentence must be the shortest period that properly reflects the seriousness of the contempt. Aggravating factors may include frustration of enforcement, a history of contemptuous conduct and further misleading evidence.

The court had previously found the first to sixth defendants in contempt for breaches of asset disclosure orders and adjourned sanction to allow them to address the court. The first and second defendants then applied to set aside the contempt order, alternatively for a stay and permission to appeal, or for a declaration that they had complied to the extent possible.

The court considered whether they had acted promptly, had a good reason for non-attendance at the earlier hearing and had a reasonable prospect of success. It also determined the appropriate sanctions for the contempts.

1. Set aside application. The requirements in Civil Procedure Rules 1998, rule 39.3(5), were cumulative. The first and second defendants had not acted promptly after learning of the contempt order. Their evidence did not establish a good reason for non-attendance. The court found that the evidence contained deliberate falsehoods and that any ignorance of the proceedings was self-imposed.
2. The defendants therefore failed the first two requirements. The court nevertheless considered reasonable prospects of success and found none. The limited evidence did not answer the earlier findings of breach. Alleged impossibility of complying with disclosure deadlines did not establish that there had been no breach. If compliance difficulties existed, the proper course was to seek an extension, variation or discharge. The order remained binding until varied.
3. Advice that disclosure might expose the defendants to consequences under UAE law did not excuse non-compliance. In any event, it related only to company disclosure and did not explain failures concerning the defendants’ own assets. The application to set aside was refused.
4. Stay and appeal. The arguments concerning impossibility and the independence of a witness did not justify a stay or permission to appeal. The earlier contempt findings did not depend on UAE law, and any alleged lack of independence did not affect the assessment of the defendants’ evidence. The alternative application concerning compliance with the freezing order also failed.
5. Sanction. The court assessed culpability and the harm caused, intended or likely to be caused, taking account of the guidance in McKendrick v The Financial Conduct Authority. Only custody was appropriate for the first, second and third defendants. The first and second defendants received 24 months’ imprisonment and the third defendant 21 months. The corporate defendants were ordered to forfeit any property they had in the jurisdiction. The sanctions were appealable to the Court of Appeal, with permission unnecessary for the first to third defendants.

The judgment itself was a further first-instance hearing following an earlier contempt finding against the defendants. The sanction hearing had been adjourned to allow the defendants to address the court. The applications to set aside, stay the proceedings, obtain permission to appeal and establish compliance were refused.