SUPREME COURT JUDGMENT: SIGNATURE OF DISCLOSURE LISTS, CASE MANAGEMENT AND COMPLIANCE

The Supreme Court judgment in HRH Prince Abdulaziz Bin Mishal bin Abdulaziz Al Saud (Appellant) v Apex GlobalManagement Ltd and another (Respondents) [2014] UKSC 64 contains some important observations in relation to disclosure and case management.

BACKGROUND TO THE CASE

This was litigation where $6 million was being claimed against a Saudi Prince.  As part of the case management a judge directed that disclosure lists be signed personally by the litigants. The Prince declined to do this asserting that there was a protocol that members of the Saudi Royal Family did not become personally involved in litigation. A peremptory order was made in relation to signature.  There was no compliance and judgment was entered. The Prince applied for a variation of the original order and relief from sanctions. This application was rejected by the judge and the Court of Appeal.

THE SUPREME COURT

There were a number of issues considered in the Supreme Court. (Lord Neuberger gave the speech with which Lord Sumption, Lord Hughes and Lord Hodge agreed. Lord Clarke dissented).

DISPORTIONALITY

It was argued that preventing the Prince from challenging liability and putting forward a substantive defence was disproportional.

23. This contention effectively involves saying that, although each decision on
the way to the final result is unassailable (at least subject to the Prince’s two
remaining arguments), the final result is wrong on the ground of lack of
proportionality. I suppose that may be logically possible, but it is a difficult Page 8
position to maintain. More to the point, in my view, on analysis, the
contention does not stand up. The importance of litigants obeying orders of
court is self-evident. Once a court order is disobeyed, the imposition of a
sanction is almost always inevitable if court orders are to continue to enjoy
the respect which they ought to have. And, if persistence in the disobedience
would lead to an unfair trial, it seems, at least in the absence of special
circumstances, hard to quarrel with a sanction which prevents the party in
breach from presenting (in the case of a claimant) or resisting (in the case of
a defendant) the claim. And, if the disobedience continues notwithstanding
the imposition of a sanction, the enforcement of the sanction is almost
inevitable, essentially for the same reasons. Of course, in a particular case,
the court may be persuaded by special factors to reconsider the original order,
or the imposition or enforcement of the sanction.

THE NEED FOR COMPLIANCE

24. In the present case, essentially for the reasons given by the three judges in
their respective judgments, there do not appear to be any special factors
(subject to what I say in the next two sections of this judgment). Further, it is
difficult to have much sympathy with a litigant who has failed to comply with
an unless order, when the original order was in standard terms, the litigant
has been given every opportunity to comply with it, he has failed to come up
with a convincing explanation as to why he has not done so, and it was he,
albeit through a company of which he is a major shareholder, who invoked
the jurisdiction of the court in the first place.
25. One of the important aims of the changes embodied in the Civil Procedure
Rules and, more recently, following Sir Rupert Jackson’s report on costs, was
to ensure that procedural orders reflected not only the interests of the
litigation concerned, but also the interests of the efficient administration of
justice more generally. The Prince has had two very clear opportunities to
comply with the simple obligation to give disclosure in an appropriate
fashion, namely pursuant to the orders of Vos J and of Norris J. Indeed, there
would have been a very good chance that, if he had offered to sign the
relevant statement after judgment had been entered against him, the court
would have set aside the judgment and permitted him to defend (provided
that no unfair prejudice was thereby caused to the other parties, and he
satisfied any appropriate terms which were imposed).

THE PRINCE’S OFFER

The Prince made an offer that his solicitor would sign the disclosure statement on his instructions.  The Supreme Court rejected this as an alternative.

26. The offer made to Mann J and repeated to the Court of Appeal that the
Prince’s solicitor would confirm, on the Prince’s instruction, that full
disclosure had been given, does not assist the Prince. It would not, I think,
have complied with the normal procedure as set out in the relevant Practice
Direction, and while the court had the power to depart from that procedure,
there is no obvious reason why it should have done so in this case. It would
have involved undermining the case management decisions of Vos J, Norris Jand Mann J. It would also have been unfair on the respondents as it wouldhave meant that the intended contemporaneous exchange of disclosurestatements could not take place. Further, the Prince would have been accorded a privilege over the other parties. In addition, even now thedisclosure given by the Prince’s solicitor is self-evidently defective as he failed to give details of all email addresses and electronic devices to which the Prince had access. It also seems quite probable that the hearing date would have been lost if the Prince had been permitted to take part in the trial at such a late stage.

27. Mr Fenwick relied on Cropper v Smith (1884) 26 Ch D 700, 710, where
Bowen LJ said that he knew of “no kind of error or mistake which, if not
fraudulent or intended to overreach, the Court ought not to correct, if it can
be done without injustice to the other party”. There are three problems for the
Prince in this connection. The first is that these observations were made in
connection with a proposed amendment to a pleading, ie an attempt by a
litigant to do something which he would be entitled to do, but to do it late;
whereas here we are concerned with a party who does not even now intend
to obey a court order. Secondly, as the points made in the last few sentences
of the immediately preceding paragraph of this judgment illustrate, there
would be prejudice to the other parties if the Prince’s current proposal was
adopted. Thirdly and even more importantly, the approach laid down in
Cropper has been overtaken by the CPR.

THE STRENGTH OF THE DEFENCE

It was argued that the strength of the Prince’s defence (that he had in fact paid the $6 million) should have been taken into account. This argument was not accepted.

29. In my view, the strength of a party’s case on the ultimate merits of the
proceedings is generally irrelevant when it comes to case management issues
of the sort which were the subject matter of the decisions of Vos J, Norris J
and Mann J in these proceedings. The one possible exception could be where
a party has a case whose strength would entitle him to summary judgment.
Both the general rule and the exception appeared to be common ground
between the parties, although Mr Fenwick seemed to be inclined at one stage Page 10
to suggest that the exception might be a little wider. In my view, the general
rule is justifiable on both principled and practical grounds.
30. A trial involves directions and case management decisions, and it is hard to
see why the strength of either party’s case should, at least normally, affect
the nature or the enforcement of those directions and decisions. While it may
be a different way of making the same point, it is also hard to identify quite
how a court, when giving directions or imposing a sanction, could
satisfactorily take into account the ultimate prospects of success in a
principled way. Further, it would be thoroughly undesirable if, every time the
court was considering the imposition or enforcement of a sanction, it could
be faced with the exercise of assessing the strength of the parties’ respective
cases: it would lead to such applications costing much more and taking up
much more court time than they already do. It would thus be inherently
undesirable and contrary to the aim of the Woolf and Jackson reforms.

THE FACT THAT THERE WOULD BE A TRIAL

There was to be a trial of other issues between the parties.  It was argued that the payment of the $6 million would be an issue at trial.

The final point relied on by Mr Fenwick was that the issue of whether the
$6m had been paid may well be raised at the trial, and at least will be the basis
on an attack on the credibility of Mr Almhairat. Thus, the very issue which
the Prince would be precluded from contesting if his appeal is dismissed may
be determined in the very proceedings which he would have been debarred
from defending. This was a point which featured in the Prince’s argument
before Mann J, who rejected it. And although it has some attraction, I consider
that he was right, and certainly entitled, to reject it.
37. While, as I say, this argument has some attraction, in the end it seems to me
that it simply represents, as Lord Hodge pointed out in argument, a relatively
extreme example of what happens if the court orders that a default judgment
be entered against a defendant. It is inherent in such an order that the
claimants will obtain judgment for relief to which it may subsequently be
shown that they were not entitled. Indeed, it is fair to say that, even where
judgment for some relief is obtained by claimants after a full trial, evidence
may emerge in a later case which establishes that they were not entitled to
that relief.
38. So far as this case is concerned, it is worth considering the point a little
further. It seems unlikely that, if the contention that the Prince had already
paid the $6m is maintained at trial, it will be ruled on by the trial judge unless
it is necessary to do so in order to resolve a live issue between the remaining
parties, ie an issue which will affect the terms of any court order. And, if the
contention had to be resolved in order to determine such an issue between the
remaining parties, and the trial judge concluded that the $6m had in fact been
paid by the Prince, it is conceivable that the Prince would be able to recover
the $6m or its equivalent. That is, I must emphasise, mere speculation on my
part, but it illustrates that the Prince may not be without some hope, albeit of
a highly speculative nature, of getting the $6m returned, if he had in fact paid
it. To that extent, he is actually better off than if this was a more normal case
involving the enforcement of a sanction.

THE SUPREME COURT IS NOT STEPPING ON THE COURT OF APPEAL’S TOES IN RELATION TO THE LAW OF SANCTIONS

It was made clear that the Supreme Court was not, here, attempting to change the general law relating to relief from sanctions.

39. It is right to acknowledge that, in the course of this judgment, I have
expressed myself in some places in somewhat tentative terms (eg in paras 12-
13, 23, and 31). This reflects the point that issues such as those raised by this
appeal are primarily for the Court of Appeal to resolve. It would, of course,
be wrong in principle for this court to refuse to entertain an appeal against a Page 13
decision simply because it involved case management and the application of
the CPR. However, when it comes to case management and application of the
CPR, just as the Court of Appeal is generally reluctant to interfere with trial
judges’ decisions so should the Supreme Court be very diffident about
interfering with the guidance given or principles laid down by the Court of
Appeal.
40. It is also right to say that nothing in this judgment is intended to impinge on
the decisions or reasoning of the Court of Appeal in Mitchell v. News Group
Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 or Denton v TH
White Ltd [2014] EWCA Civ 906.

THE SUMMARY

The Press Summary can be found here. 

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