Barclays Bank PLC v Scott Dylan & Ors

A passport order may be made before or after judgment where it supports the court’s procedures, including enforcement. Because it restricts liberty, the jurisdiction must be exercised cautiously and proportionately. The applicant must generally show a substantive basis for relief and a real risk that the respondent will abscond. The applicant must also show that the respondent’s absence would materially prejudice the relevant hearing or the court’s established enforcement procedures. After judgment, the requirement concerning a substantive award is satisfied by the judgment to be enforced, and material prejudice concerns the ability to enforce it.

Barclays Bank PLC sought a passport order against Jack Mason pending a sentencing hearing arising from his serious contempt of court. The court had found that Mr Mason and the other respondents had deliberately moved companies and assets out of the jurisdiction in breach of freezing orders. Mr Mason had relocated to Spain and had only tenuous remaining connections with the United Kingdom.

The court considered whether the established principles governing passport orders were satisfied, particularly whether there was a real risk that Mr Mason would abscond and whether his absence would frustrate the sentencing hearing.

1. Jurisdiction and governing principles. A passport order combines an injunction restraining departure, delivery of passports and travel documents into safe custody, and a prohibition on applying for further travel documents. The jurisdiction exists in aid of the court’s procedures leading to the disposal of proceedings and may also be used after judgment to assist enforcement. The restraint must be exercised with caution and proportionately because it restricts liberty.
2. Applicable test. Following Young v Young and JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev, the applicant must establish a good cause of action or, after judgment, a substantive award to enforce; a real risk that the respondent will abscond; and material prejudice caused by the respondent’s absence. In the post-judgment context, material prejudice means prejudice to enforcement through the court’s established procedures.
3. Application. Mr Mason’s absence would materially prejudice and frustrate the sentencing hearing. A custodial sentence was likely, and although a bench warrant could be issued, that would not cure the frustration of the hearing itself. His lack of assets in the jurisdiction, relocation to Spain, tenuous United Kingdom connections, deliberate transfer of companies out of the jurisdiction, and breach of freezing orders established a real risk that he would not return.
4. The conditions for a passport order were therefore satisfied. Mr Mason was restrained from leaving the jurisdiction until the sentencing hearing, required to deliver all passports and travel documents to Barclays’ solicitors to be held to the order of the court, and prohibited from applying for further travel documents. Permission to appeal was refused because no error of law or realistic prospect of success was identified.

This was a first-instance application in the High Court. The court also refused permission to appeal against the passport order.