OCM Maritime Nile LLC & Anor v Courage Shipping Co & Ors

Contempt proceedings, although serious and potentially affecting liberty, must be conducted in accordance with the court’s procedural orders. Where evidence is served substantially out of time, was available earlier, lacks a satisfactory explanation for the delay, and would cause unfairness or prejudice to the opposing party, the court may exclude it. The court must balance fairness to the unrepresented party against the other party’s fair opportunity to answer the evidence.

The ruling concerned evidence served by Abdul Jalil Mallah in long-running contempt proceedings. A timetable for service had been agreed while he was legally represented, and extensions had been granted, but the evidence was not served within the timetable. The material was available before his former solicitors came off the record, and no adequate explanation for the delay was advanced.

The central issue was whether fairness required the late affidavit and exhibits to be admitted despite their non-compliance with the court’s directions.

1. The court excluded the late affidavit and exhibits. The evidence was not late-arising material that could not reasonably have been obtained sooner. It was available during the period when Mr Mallah was represented, and the procedural timetable had been deliberately ignored.
2. The seriousness of committal proceedings did not displace the requirement to comply with court orders. The court relied on the reasoning endorsed in Business Mortgage Finance 4 and others v Hussain, [2022] EWCA Civ 1264, including the principle that grave potential consequences do not justify disrupting proceedings by admitting evidence served without explanation and in breach of directions.
3. There was obvious prejudice to the claimants, who were deprived of a fair opportunity to deal with the evidence. Although the court had to take particular care to act fairly towards Mr Mallah, who was then unrepresented, the balance of fairness favoured exclusion.
4. The evidence was therefore excluded. The court indicated that arrangements would be needed to give Mr Mallah a fair opportunity to address individual points appropriately without legal representation.