Google LLC & Ors v Nao Tsargrad Media & Ors

The court may impose an unless order debarring a party from participating in an ancillary inquiry or costs assessment where that party is in flagrant and contumacious breach of court orders. A strict causal connection between the breach and the subject matter of the debarring order is not essential where the sanction is necessary to mark disapproval and protect the efficient administration of justice.

The court must consider proportionality, the parties’ Article 6 rights, alternative sanctions, and whether participation would serve any practical purpose. A contingent debarring sanction should not be followed immediately by determination of the underlying issue before the compliance period has expired.

Google applied for unless orders against the defendants following their admitted and continuing breaches of anti-suit and anti-enforcement injunctions previously granted by Henshaw J. The applications sought to debar the defendants from participating in an inquiry as to damages and a costs assessment, to replace detailed assessment with summary assessment, to retain the damages inquiry in the Commercial Court, and to obtain declarations of breach.

The defendants had failed to withdraw enforcement proceedings in multiple jurisdictions and had taken further steps to advance enforcement. The central issues were whether the court should impose debarring sanctions despite the absence of a strict nexus between the breaches and the ancillary proceedings, whether costs should be assessed summarily, and whether the proposed orders would disproportionately prejudice the defendants’ Article 6 rights.

1. Debarring orders. The court has a broad discretion to impose an unless order with a debarring consequence, taking account of all material circumstances, alternative sanctions, the effect on the defendant, and the parties’ Article 6 rights. A strict causal nexus between the default and the subject matter of the debarring order is not required where the seriousness and persistence of the default justify intervention to mark the court’s disapproval and discourage similar disobedience.
2. The defendants’ non-compliance was flagrant, contumacious, deliberate and continuing. They had neither justified their breach nor shown that compliance was impossible or difficult. Their conduct gave no confidence that a full inquiry or detailed assessment would involve meaningful participation. Debarring them from the damages inquiry was therefore just and proportionate, even though it might not itself secure compliance with the injunctions.
3. The court was not prepared to assess damages immediately. A contingent sanction could not fairly be treated as already operative because the defendants might still comply during the grace period and might then wish to make further submissions. Due process remained applicable notwithstanding the defendants’ contumacious breach.
4. The court varied the mechanics of the costs order so that, unless the defendants complied within 14 days, costs would be assessed summarily on the papers. The defendants could make written submissions of no more than 10 pages. A material change of circumstances was a significant factor but not an immutable precondition to variation; the question remained one of judicial discretion in all the circumstances.
5. Declarations of breach were granted, the damages inquiry was retained in the Commercial Court by agreement, and the application concerning Walker 9 resulted in no order.

The applications followed anti-suit and anti-enforcement injunctions granted by Henshaw J on 22 January 2025. The present judgment determined the consequential applications concerning breach, debarring sanctions, damages and costs.