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

In contempt proceedings, documents needed to defend the application, including a hearing notice, must be personally served, served on the legal representative on the record, or covered by a direction made specifically in the contempt proceedings under Part 6 of the Civil Procedure Rules 1998. A prior order authorising alternative service in an earlier phase does not extend automatically to the penal phase. If service was invalid, the rule governing hearings in a party’s absence after valid service does not apply. Even so, an appellate court may refuse a new service point where the interests of justice require it, including where the party knew of the hearing, suffered no real prejudice, and could have obtained retrospective dispensation. Sentencing for contempt requires assessment of culpability, harm, aggravating and mitigating factors. A two-year maximum is not confined to the worst conceivable cases.

The claimants sought enforcement of a substantial Sharjah judgment and damages against the defendants. They obtained worldwide freezing orders requiring extensive asset disclosure. The appellants failed to comply and were later committed to prison for 24 months by Mr Justice Butcher in decisions reported at [2023] EWHC 2624 (Comm) and [2023] EWHC 3271 (Comm).

The appellants had not attended the liability hearing, which had been notified by alternative means authorised earlier in the proceedings. At the sentence hearing they conceded that the committal application had been validly served, but argued that the listing order had not. The appeal concerned the validity of that service, whether the new point could be raised for the first time on appeal, the contempt findings, and sentence.

Both appeals dismissed. Males LJ gave the judgment, with Nicola Davies and Elisabeth Laing LJJ agreeing.

1. Service in contempt proceedings. CPR 81.5 governs service of the contempt application and supporting evidence. Basic fairness extends the same protection to documents needed to defend the application, including a listing order. Such documents must be personally served, served on the defendant’s legal representative on the record, or covered by a direction made specifically in the contempt proceedings under Part 6 of the Civil Procedure Rules 1998. An earlier order permitting alternative service of all other documents in a different phase did not suffice.
2. Authorities. Chiltern District Council v Keane [1985] 1 WLR 619, The Eastern Venture [1985] 1 All ER 923 and ICBC Standard Bank Plc v Erdenet Mining Corporation LLC [2017] EWHC 3135 (QB) supported a strict approach to service where liberty was at stake. Frame Investments Ltd v Airh Ltd 26 May 1988 (unreported) did not justify disregarding service rules merely because a case was exceptional; the proper route was an express power to dispense with service.
3. New point on appeal. Under the interests-of-justice test identified in ADM International Sarl v Grain House International SA [2024] EWCA Civ 33 and the related authorities, the appellants were not permitted to raise the point. The notifications achieved the objects of service, the appellants knew of the hearing, they had opportunities to present their case, and the respondents could have obtained dispensation under CPR 6.28. Remittal would have caused substantial delay and further evidence would not have assisted. There was no infringement of Article 6.
4. Contempt and sentence. The appellants’ continuing non-compliance was deliberate and serious. Alleged UAE confidentiality restrictions did not justify breach; the proper course was to seek variation of the freezing order. Applying the principles in Financial Conduct Authority v McKendrick [2019] EWCA Civ 524, the maximum sentence of 24 months was justified. Disparity with a co-defendant did not require reduction, and the appellants’ delaying conduct and deliberate falsehoods aggravated the contempt.

1. Court of Appeal (Civil Division) dismissed both appeals. It held that service of the listing order was invalid in principle, but refused permission to raise that point for the first time on appeal.
2. High Court, Commercial Court found the appellants in contempt for failures to comply with worldwide freezing-order disclosure obligations and imposed 24-month custodial sentences in decisions reported at [2023] EWHC 2624 (Comm) and [2023] EWHC 3271 (Comm).