Cancrie Investments Limited Sarl v Zulfiqur Al Tanveer Haider

The court may order third-party disclosure under section 37 of the Senior Courts Act 1981 or its inherent jurisdiction where disclosure is necessary to make a freezing order effective and police compliance with it. The applicant must show practical utility and a real, non-fanciful risk of breach; a fixed evidential threshold such as likelihood or strong grounds is unnecessary. The court must balance the need to enforce its order against oppression, confidentiality, privacy and proportionality. Norwich Pharmacal relief requires an arguable wrong, necessity, and involvement by the respondent beyond that of a mere witness. The jurisdiction is exceptional and requires focused disclosure, not a fishing expedition. A bank may be sufficiently involved where its banking relationship places it in a position to provide information needed to police the freezing order, even though it is not accused of wrongdoing.

The claimant, assignee of a substantial UAE judgment debt, sought third-party disclosure from EFG Private Bank Limited concerning the defendant’s and his family’s accounts, investments, deposits and financing arrangements. The defendant was subject to worldwide freezing orders and ancillary disclosure obligations. The claimant alleged inadequate asset disclosure, non-disclosure of the sources of legal and living expenses, and a continuing real risk of dissipation.

The application was brought under section 37 of the Senior Courts Act 1981, the court’s inherent jurisdiction and, alternatively, the Norwich Pharmacal jurisdiction. EFG Bank adopted a neutral stance. The central issues were whether the alleged breaches and risk of dissipation justified disclosure, whether the information sought was necessary and proportionate to police the freezing orders, and whether EFG Bank was more than a mere witness.

1. Relief granted. The court ordered EFG Bank to provide the targeted disclosure sought and continued the seal and gag order for eight weeks. The claimant was ordered to pay EFG Bank’s reasonable compliance and application costs.
2. Section 37 and inherent jurisdiction. The jurisdiction accompanying a freezing order extends to ancillary orders necessary to make it effective. Further disclosure may be ordered where the court is satisfied that it has practical utility and is necessary to police the order. The evidence need not establish a fixed threshold such as a likely breach or strong grounds. The strength of the evidence is weighed with the other considerations for and against relief.
3. The court must remain alert to preventing a freezing order becoming oppressive. Further disclosure must be proportionate and must not be sought merely to expose inconsistencies, obtain contempt evidence or assist the underlying proceedings.
4. Norwich Pharmacal jurisdiction. The requirements were an arguable wrongdoing, necessity of disclosure to obtain redress, and involvement of the respondent distinguishing it from a mere witness, followed by a discretionary assessment of whether relief was necessary and proportionate. A good arguable case in this context retained the traditional standard of more than barely capable of serious argument, without requiring a better than 50 per cent chance.
5. Breaches or threatened breaches of freezing orders, including dissipation of assets, could constitute wrongdoing. EFG Bank was not a mere witness because its extensive banking relationship with the defendant and his family made it intrinsically involved in the defendant’s affairs and placed it in a position to provide necessary information. The bank need not itself have committed wrongdoing.
6. The disclosure was sufficiently focused. Information about known accounts, portfolios and deposits was necessary to investigate ownership, sources and transactions. Disclosure concerning other accounts, assets and financing arrangements was also justified because the defendant’s disclosure was inadequate and might not identify all assets within the freezing orders. The orders were not a fishing expedition.
7. Confidentiality, privacy, the involvement of a non-party, cost, delay and the availability of other routes were considered but did not outweigh the need to make the freezing orders effective.

First-instance decision. The judgment records earlier applications and orders in the same proceedings, including the worldwide freezing order, its continuation, and the claimant’s earlier seal and gag application.