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England and Wales High Court (Commercial Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> The Public Institution for Social Security v Amouzegar [2020] EWHC 1220 (Comm) (15 May 2020) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2020/1220.html Cite as: [2020] EWHC 1220 (Comm) |
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QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| THE PUBLIC INSTITUTION FOR SOCIAL SECURITY |
Claimant |
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| - and - |
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| MR KAMRAN AMOUZEGAR |
Fifth Defendant |
____________________
Philip Marshall QC and Simon Hattan (instructed by Eversheds Sutherland LLP) for the Fifth Defendant
Hearing dates: 28th and 29th April 2020.
____________________
Crown Copyright ©
Mr. Justice Jacobs :
A: The application
B: Procedural history
a) PIFSS' application for freezing relief was adjourned on the basis of interim undertakings given by Mr. Al Rajaan. The full hearing of that application subsequently took place on 15 and 16 October 2019, and resulted in a worldwide freezing order in the sum of US$847.7 million being made against Mr. Al Rajaan: see [2019] EWHC 2886 (Comm). The principal argument advanced in response to the application concerned whether there was a real risk of dissipation, which encompassed an extensive argument concerning material delay in seeking relief.
b) An order was made consolidating the Claim Form presently in issue (CL-2019-000118) with the second claim form (CL-2019-00015), and directing that Consolidated Particulars of Claim be filed and served.
c) Permission to serve out of the jurisdiction was granted in relation to a number of defendants.
d) In relation to certain defendants for whom permission to serve out of the jurisdiction had been granted, an order was made extending the time for service of the claim form on the basis of anticipated delays in effecting service.
e) No order for service out of the jurisdiction was sought in relation to Mr. Amouzegar. This was because he could potentially be served without permission pursuant to CPR 6.33 and Article 6 (1) of the Lugano Convention. At that stage, no order was sought extending the time for service of the Claim Form on him. However, towards the conclusion of the hearing, Mr. Ritchie QC (who appeared then, and now, on behalf of PIFSS) indicated that such an application might need shortly to be made in relation to service of the Swiss defendants because of a concern that "we are quite close to the wire" since the "guillotine falls on 21 August". The possibility was canvassed of an application for an extension, either on paper or at a hearing, within the next 3 weeks, and I indicated that I was available for a hearing if necessary.
"The Defendants may argue that other systems of law apply to the claims, including Swiss law based on events, acts or omissions carried out by Defendants in Switzerland and arguments that "damage" under the Rome II Regulation was suffered there. Consideration of Swiss law principles was given in Marino at paragraphs 480 and following. PIFSS' case is that the better analysis of the facts is that Kuwaiti law applies. Even if that is wrong PIFSS submits that:
a. Putting it at its lowest, it is not clear that Swiss law applies to any claim;
b. Even if Swiss law applies, there is nothing in the analysis in Marino to indicate that the pleaded facts do not give rise to arguable claims under Swiss law."
"various requirements of serious issue to be tried, good arguable case, England being the appropriate forum, have on the materials before me at the moment, and of course there may be much more considerable materials before me if there's an application to set aside, but on the materials [present] at the moment … those requirements are satisfied."
"The Claimant took steps to start the process of effecting service via this route, the first of which was to arrange certified translations of the documents for service, and to file a form N510 to explain to the Court why permission to serve the Claim Form on these defendants was not required. This process took some time, not least due to the number of defendants in this action. Further, the Claimant's legal advisers were occupied in a time intensive process of preparing the applications which were determined at the hearing on 4 July 2019, in particular the supporting evidence which included preparation of the draft Particulars of Claim, which was considered necessary so as to present material facts, and thereby explain the case."
"In so far as it may be contended that the claim forms should have been served earlier, the Claimant's response is that it was not considered appropriate to serve the Claim Form until Particulars of Claim had been prepared, given that the Claimant would come under an obligation to serve Particulars of Claim following acknowledgment of service. As stated above, that document was a very complex document to draft and its preparation was not completed until shortly prior to the hearing on 4 July 2019."
"… Mr. Ritchie QC addressed Mr. Justice Jacobs on the possibility that further time may be required to effect service of proceedings on certain European defendants. We enclose a copy of the transcript of the hearing, and refer in particular to pages 96 – 98".
C: Service on Mr. Amouzegar and the application to set aside
"The Application Notice makes no reference to the possibility of the Defendants raising a limitation defence to the claims made against them, as I suggest it should have done in view of the fact that the order was being sought ex parte to Mr. Amouzegar. It is clear, however, that the Claimant was alive to the possibility of such a defence being mounted since: (i) the fact that Defendants may raise limitation defences was explained in witness statements served by the Claimant in support of the separate applications determined by the Court at the hearing on 4 July 2019; and (ii) at that hearing, the need to preserve the Defendants' limitation position was canvassed in relation to the application for consolidation and limitation was discussed in the context of an application to serve out of the jurisdiction on other Defendants." (Internal cross-references omitted).
"[6.2] …Mr Byford contends that no proper explanation of the delay between issue and service of the Claim Form was provided. I accept that the position was explained only in brief. Further information is provided below.
[6.3] As explained below the extension was required as a result of the complexity of the proceedings, the need carefully to formulate detailed particulars of claim in respect of a very substantial fraud case before serving proceedings, and to marshal multiple procedural elements for the benefit of all parties and of the Court, and the need to proceed via the Foreign Process Section ("FPS"). In the event, the extension sought was modest (a little over two months). On Mr Amouzegar's own case, service would have been effected on him prior to the original deadline but for his alleged absence on holiday for 4 weeks at the relevant time. In any event service was effected just six days after the original deadline.
[6.4] Mr Amouzegar has challenged the alleged delay of over four months between issue of the proceedings against him on 21 February 2019 and the provision of documents to the FPS on 10 July 2019. However, he leaves out of account the Claimant's need to bring this exceptionally complicated case before the court in an appropriate, logical and efficient manner, which required the Claimant to synchronise (i) service on the principal defendant, Mr Al Rajaan with proceedings and the Asset Protection Relief Application (as defined in paragraph 18 below); (ii) issuing of an application for permission to serve out of the jurisdiction on a number of defendants; and (iii) early case management directions to consolidate claims CL-2019-000118 and CL-2019-000151 and to grant permission to serve consolidated Particulars of Claim. The above applications were issued on 21 June 2019 and Mr Al Rajaan was served with (i) and (iii) on the same date.
[6.5] It would not have been appropriate to serve the claim form on Mr. Amouzegar (or other Defendants) prior to service of proceedings against Mr. Al Rajaan, which could not take place (i) without a fully formulated claim in the form of draft Particulars of Claim, and factual investigations continued to be undertaken in that regard on behalf of the Claimant following the issue of the claim forms so as to present particularised claims against each of the defendants, and (ii) without establishing that Mr Al Rajaan was present within this jurisdiction, so that he could be served as anchor defendant. Earlier service of the claim form, prior to the above steps, would have caused other case management issues and potentially jeopardised (at least) the Asset Protection Relief Application against Mr Al Rajaan.
[6.6] Further, a lever-arch file of key documents was sent to Mr Amouzegar on 24 July 2019, including the Claim Form and a number of key documents. Accordingly, this is not a case where a late extension was sought or the defendant was unaware of the claim until after the original expiry of the Claim Form: the extension application was made in time, and extensive documents were provided to Mr Amouzegar nearly a month before the original deadline; but, for the various reasons explained below (including an alleged supervening holiday on the part of Mr Amouzegar at the point when service was attempted), there was a delay in effecting service. Accordingly, PIFSS's position is that as well as supporting its response to the application to set aside permission to extend time for service of the proceedings, these facts justify an application by PIFSS under CPR Rule 6.16 to dispense with service, given that the claim form and the proceedings were brought to the attention of Mr. Amouzegar, as he accepts, prior to expiry of the validity of the claim form (even without the extension)."
"[15] The preparation and service of these proceedings have posed the Claimant with exceptional procedural and logistical challenges. Although the Court will be familiar with many of these matters, I summarise them briefly as follows:
[15.1] The investigation into Mr Al Rajaan's (and the other Defendants') conduct has been complex, wide and time-consuming, in particular because:
[15.1.1] As set out at 15-29 of the First Affidavit of Mohan Bhaskaran dated 20 June 2019 (the "Bhaskaran/Aff1"), Mr Al Rajaan took extensive steps to conceal the payment of corrupt payments to him and his associates; and
[15.2.2] As summarised at 64(b) of Bhaskaran/Aff1, the primary source of evidence that the Claimant has reviewed and relied upon in preparing proceedings has been material prepared by the prosecutor in Switzerland (the "Swiss Material"). However, the Claimant's access to that material has been severely limited by the restrictions put in place by the Swiss court following appeals by Mr Al Rajaan.
[15.2] Moreover, in light of the seriousness of the allegations made in these proceedings against a number of individuals, many of them with a significant public profile, and the absence of pre-action correspondence against many of the Defendants, the Claimant considered that the appropriate and prudent course was to complete investigations sufficient to allow it to plead properly focussed Particulars of Claim before service.
[15.3] At the same time, it needed to verify that Mr Al Rajaan and the Second Defendant, ("Ms Al Wazzan") were in fact domiciled within the jurisdiction notwithstanding the extant extradition proceedings. As set out at 19-20 of the First Witness Statement of Mohan Bhaskaran dated 19 June 2019 ("Bhaskaran/WS1"), my firm obtained the assistance of private investigators and these were able to confirm the presence of Mr Al Rajaan and Ms Al Wazzan in May and June 2019. Prior to those enquiries, PIFSS believed that they were present and domiciled within this jurisdiction. Form N510 (which PIFSS had to complete for the Lugano and Brussels jurisdiction defendants) requires a claimant to declare that the claim form can be served out of the jurisdiction without the permission of the court; the Claimant wanted clarity as to the domicile of Mr. Al Rajaan before making that declaration.
[15.4] Further, given the nature of the wrongdoing alleged, and for the reasons set out in Bhaskaran/Aff1, the Claimant sought asset protection relief on an urgent basis (albeit on notice) against Mr Al Rajaan (which was in the event granted by Mr Justice Jacobs after a hearing on 15 and 16 October 2019). Accordingly:
[15.4.1] It was necessary to prepare the Asset Protection Relief Application to this effect for service alongside the service of proceedings; and further
[15.4.2] As noted above, given both the complexity of the action and the need to make the Asset Protection Relief Application, draft Particulars of Claim were required in order to satisfy the tests for freezing order relief in respect of both proprietary and non-proprietary claims, and more generally to enable the Court to understand the nature and scope of the claim.
[15.4.3] If proceedings had been served on any of the defendants before any relevant application was made, this could have increased the risk that Mr Al Rajaan might have learned of the proceedings and taken steps to frustrate that application.
[15.5] There were also a number of procedural reasons why it was important to prepare Particulars of Claim before any claim was served:
[15.5.1] The Claimant was required to apply for permission to the serve the claim on a number of defendants out of the jurisdiction, including defendants (amongst them co-defendants of Mr Amouzegar to the Pictet Scheme claims) whose alleged wrongdoing overlaps with that of Mr Amouzegar. This application was made ex parte and therefore invoked obligations of full and frank disclosure, and therefore required both draft Particulars of Claim and detailed evidence in support.
[15.5.2] The Claimant considered that the efficient and appropriate course was for steps to serve the claims relating to those defendants, Mr Amouzegar and others to be taken at the same time and following the grant of permission. Mr Amouzegar would therefore be clear that permission had been granted to serve those related defendants out of the jurisdiction.
[15.5.3] Equally, the Claimant required early case management directions to (inter alia) consolidate the Claim Form and the Second Claim Form, and for permission to serve consolidated Particulars of Claim in the consolidated action.
[15.5.4] Further, had the Claimant commenced service of the Claim Form and Second Claim Form on defendants (including Mr Amouzegar) shortly after issue of the claims in February and March 2019 respectively, it would have faced a situation whereby under CPR 58.5 it would have been required to serve Particulars of Claim within 28 days on such defendants who indicated an intention to defend the claim, in circumstances where the Particulars of Claim were not ready and the Claimant had no order for consolidation or for permission to serve consolidated Particulars of Claim.
[15.6] The Claimant therefore found itself under significant pressure, for a range of substantive and procedural reasons, to draft Particulars of Claim so as to serve both the proceedings and the above applications at the same time. The process of preparing draft Particulars of Claim was itself complex, both because of the length and complexity of that document (amounting to 143 pages in total, in the version provided to Mr Al Rajaan on 21 June 2019), and because of the restrictions placed on the Claimant's access of the critical Swiss Material.
[15.7] In the event the suite of documents referred to above (draft Particulars of Claim, the Asset Protection Relief Application, and further applications for permission for service out and consolidation, with accompanying evidence primarily in the form of Bhaskaran/Aff1 and Bhaskaran/WS1) were not finalised until mid-June 2019.
[16] Further, and as summarised at 65 of Bhaskaran/Aff1, another complicating factor was the ongoing criminal process, which proceeded in parallel with the above and in which the Claimant was, until 3 July 2019, a civil participant. As the Claimant explained to the Court on 4 July 2019, the Claimant withdrew to avoid any potential dispute as to the Court first seised for the purposes of "lis pendens" under Article 27 of the Lugano Convention.
[17] Accordingly, the Claimant's position was that (i) proceedings could not be served on Mr Al Rajaan until the Asset Protection Relief Application was ready, (ii) those proceedings and that application could not be served until draft Particulars of Claim were ready, (iii) other heavy applications, for service out and consolidation, could also not be pursued until draft Particulars of Claim were ready, and (iv) other defendants could not sensibly be served until proceedings had been served on Mr Al Rajaan, which was dependent on establishing that he was domiciled in the jurisdiction. The Claimant sought to bring the matters to the court in an appropriate, logical and efficient manner, and I respectfully submit that the approach taken was preferable to an alternative approach whereby defendants (including Mr Amouzegar) were served piecemeal at earlier points in time."
"[35] As I have described at paragraphs 14-18 above, following the issue of the Claim Form on 21 February 2019 the Claimant was involved in an intensive process of (i) further investigation of the facts relevant both to the claim issued on 21 February and the claim issued on 11 March and (ii) drafting so as to ensure that it could serve proceedings and the Asset Protection Relief Application on Mr Al Rajaan at the earliest opportunity, as well as the applications for permission to serve out of the jurisdiction and consolidation.
[36] The exceptional nature of the proceedings and of the Asset Protection Relief Application was such that the proper course was for the Claimant to prepare Particulars of Claim and serve proceedings and the Asset Protection Relief Application on Mr Al Rajaan before taking steps to serve proceedings on Mr Amouzegar and the other defendants for the substantive, practical and procedural reasons explained above.
[37] At 30.1 and 30.2 of Byford1, Mr Amouzegar does not acknowledge the importance of this process or the very powerful reasons why the Claimant did not seek to serve Mr Amouzegar before service on Mr Al Rajaan. This also addresses, I would respectfully submit, Mr Amouzegar's complaint about the preparation of Particulars of Claim. In particular:
[37.1] In an ordinary case, it may be that a claimant will not be entitled to seek an extension for service of a claim form on the sole basis that it wishes to prepare particulars of claim, not least because it will not normally be necessary (in an ordinary case) for a claim form to be served with particulars of claim.
[37.2] However, the present case is far from ordinary. Given the nature and scale of the Asset Protection Relief Application, the application for permission to serve out of jurisdiction, the application for consolidation, and the complexity of the proceedings as a whole, it was considered essential to ensure that (i) proceedings and the applications were served together, and (ii) draft Particulars of Claim were available at the date of service – not least so as to be able to explain and justify the claim to the Defendants beyond the details provided in the claim form, given the absence of pre-action correspondence with many of the defendants.
[38] As to the four months required to complete the above steps, I would suggest that the length of time required to prepare the draft Particulars of Claim and the Asset Protection Relief Application was proportionate to the complexity of the matters in issue, particularly given the limitations under which the Claimant was operating: see paragraph 15 above.
[39] Accordingly, I would suggest that there was no relevant or unjustifiable delay over the period from 21 February to 21 June 2019. It would have been unwise for the Claimant to have taken steps to provide documents to the FPS prior to service on Mr Al Rajaan."
"[50.2] … address such an argument in the abstract or to understand what it is that Mr. Amouzegar says ought to have been disclosed. If Mr. Amouzegar is not running a limitation defence, limitation has no relevance to the Claimant's extension application".
"[54] … the application was addressed to Mr Justice Jacobs on the reasonable (but in the event mistaken) assumption that it would be passed to him as the designated Judge in the proceedings. Given that the issue of limitation had been canvassed in some detail before Mr Justice Jacobs at the hearing on 4 July 2019, the Claimant proceeded on the basis that the learned Judge had limitation firmly in mind when considering the application. However, in the event, the application was determined on paper by Mr Justice Teare. Limitation had in fact been canvassed before Mr Justice Teare at an initial directions hearing on 17 June 2019: [MW1 pages 3 and 6]. However, given the limited material before Teare J on that occasion and the nature and brevity of the hearing, I accept that the learned Judge may not have had this point in mind when he made the Extension Order.
[55] If the Claimant was at fault in not drawing attention to limitation in its application notice, it apologises. I would make two comments: (i) the error was inadvertent, and (ii) in the Claimant's submission, there is no reason to believe that the Court would have made a different order had the issue been raised squarely with it. Accordingly, I would respectfully suggest that this complaint does not provide a basis for setting aside the Extension Order. Alternatively, I would respectfully ask the Court to continue the Extension Order as a matter of its discretion."
"…on review of the factual evidence, it is now apparent that expert evidence is needed as to the limitation period under Swiss law applicable to the pleaded claims."
"[12] To the best of my recollection (and having discussed the matter with other relevant members of the Claimant's legal team who agree) we filed the Extension Application with the belief that this application was an extension of the matters raised with the Court on 4 July, such that any and all relevant disclosure required was already before the Court (and in particular Mr Justice Jacobs) by reason of (a) the evidence filed for the hearing 3 weeks beforehand, and (b) submissions made at the hearing, such that it was unnecessary to incorporate this material in the Extension Application. That was particularly so given that other extension applications had been sought and granted on 4 July and that this Extension Application had been expressly trailed at the earlier hearing.
[13] On 29 July 2019 I received the sealed Order. I noticed that it had been approved by Mr Justice Teare and not Mr Justice Jacobs. I knew that Mr Justice Teare had already made initial orders in the case in June 2019. In the circumstances explained above and in Walsh 1, this did not prompt me to question whether there was a need to make further disclosure of possible limitation defences to the Court (as paragraph 20.6 of Mr Amouzegar's skeleton suggests there was). I have discussed the matter with other relevant members of the Claimant's legal team who are of the same recollection.
[14] No further consideration was given to the issue until receipt of Mr Amouzegar's application in October 2019.
[15] In light of the above, I deny any suggestion that PIFSS deliberately failed to comply with its duty of full and frank disclosure by deliberately not drawing Mr Amouzegar's alleged limitation defence to the attention of the Court.
[16] The position is that, as is clear from the submissions at the 4 July 2019 hearing and from PIFSS's Application Notice itself, PIFSS regarded the Extension Application as a continuation of the matters already brought before the Court through the designated judge and in the context of the matters previously disclosed to the Court. That was the general premise on which the application was made. Neither PIFSS nor Stewarts consciously decided to hold back mention of a possible limitation defence."
D: Limitation and the Swiss law evidence
"… Mr. Amouzegar will have a limitation defence in relation to all of the claims unless some extended criminal limitation period could apply but even then there would be a limitation defence to part of them. As it is, no criminal case has ever been brought in relation to Mr. Amouzegar and no criminal liability has been pleaded or even referred to."
E: Extensions of time – legal principles
"(1) An application to set aside an order extending time obtained on a without notice application is a rehearing of the matter, not a review of the decision to extend time.
(2) The principal and frequently the only question is to determine whether there was a good reason for the claimant's failure to serve the claim form within the period allowed by the rules.
(3) If there was a very good reason for the failure to serve within the specified period, an extension of time will usually be granted, for example where the court has been unable to serve the claim form or the claimant has taken all reasonable steps to serve but has been unable to do so.
(4) Conversely, the absence of any good reason for the failure to serve is likely to be a decisive factor against the grant of an extension of time.
(5) The weaker the reason for failure to serve, the more likely the court will be to refuse to grant the extension.
(6) Whether the limitation period applicable to the claim has expired is of importance to the exercise of the discretion since an extension has the effect of extending the period of limitation and disturbing the entitlement of the potential defendant to be free of the possibility of any claim.
(7) The fact that the claimant has delayed serving the claim form until the particulars of claim were ready is not likely to provide a good reason for the failure to serve.
(8) The fact that the person to be served has been supplied with a copy of the claim form or is otherwise aware of the claimant's wish to take proceedings against him is a factor to be considered.
(9) Provided he has done nothing to put obstacles in the claimant's way, a potential defendant is under no obligation to give any positive assistance to the claimant to serve the claim form, so that the fact that the potential defendant has simply sat back and awaited developments (if any) is an entirely neutral factor in the exercise of the discretion."
"As to the relevance of limitation, whether the claim has become statute-barred since the issue of the claim form is a matter of importance. Where an extension of time is sought in circumstances where the claim has, or may have, become time-barred since the date on which the claim form was issued, or will become time-barred in the extended period, the court should have regard to the fact that an extension of time might disturb a defendant who is entitled to assume that his rights can no longer be disputed as a matter of importance when deciding whether to grant an extension of time for service."
"[108] … as Stanley Burnton LJ says (at para 54), the primary question is whether, if an extension of time is granted, the defendant will or may be deprived of a limitation defence. That is plainly shown by Battersby's case [1945] KB 23 and Dagnell's case [1993] 1 WLR 388 always to have been the attitude of the courts, on the highest authority. It is therefore for the claimant to show that his "good reason" directly impacts on the limitation aspect of the problem, as for instance where he can show that he has been delayed in service for reasons for which he does not bear responsibility, or that he could not have known about the claim until close to the end of the limitation period. If he cannot do that, he is unlikely to show a good or sufficiently good reason in a limitation case.
…
[109] … That means that in a limitation case, a claimant must show a (provisionally) good reason for an extension of time which properly takes on board the significance of limitation. If he does not do so, his reason cannot be described as a good reason. It is only if a good reason can be shown that the balance of hardship could arise."
F: The parties' submissions
Mr. Amouzegar's submissions
PIFSS' submissions
G: Extension of time - discussion
"We are not aware that you have instructed lawyers in England to accept service on your behalf. Our client is therefore taking the necessary steps to serve these proceedings directly on you in Switzerland.
However, in view of the overriding objective, and in the interests of avoiding unnecessary costs and delay, we invite you to consider appointing English lawyers and instructing them to accept service of these proceedings on your behalf. Should you not do so we will draw this correspondence to the court's attention at the appropriate time.
In any event you are strongly advised to take urgent legal advice in relation to this matter and ask your advisors to contact us or provide us with their details."
"It was in June 2017 that the claimant for the first time gained access in Switzerland to documentation relating to schemes other than Mirabaud and in August 2017 that it first considered these documents. Mr. Al Rajaan had fought a long and hard battle to prevent the claimant from obtaining access to those documents but, ultimately, the claimant succeeded. Nevertheless, there were difficulties for the claimant in analysing the documents because, as a result of opposition from Mr. Al Rajaan, they were not permitted to take copies. They could send people to look at the documents, which were in a number of different languages, and notes could be taken of what the documents said, but copies of the documents could not be made or taken away. Inevitably, this was a laborious process and resulted in the claimant having to pursue, in a slow and difficult way, a complicated trail of alleged financial corruption on a very large scale… It is also important to bear in mind that the Swiss materials are not a static body of documentation. They have been added to over time as more documents have become available. The factual position has therefore changed incrementally."
"I agree that the period taken to formulate the present claim, which is around two years from the time that access was first granted to the time when the application for freezing relief was made, does seem long. It might have been possible for it to be shorter, but, in view of the complexity of the transactions, the scale of the corruption alleged, the claimant's inability to take copies of documents, the fact that the picture has been developing as more materials are added and the care which is required when major allegations of fraud are made as the basis for an application for a worldwide freezing order, it is not surprising, in my view, that it has taken the claimant some considerable time. A party is not to be criticised for taking its time and making reasonable enquiries prior to launching an application where fraudulent activities are alleged. That was the conclusion of David Steel J in Fiona Trust v Privalov [2017] EWHC 1217 (Comm) at [69]. Nor is a claimant to be criticised for making an application inter partes. That is something which assists a respondent and cannot in my view be prayed in aid as showing that a worldwide freezing order is not appropriate."
"PIFSS did not become aware of the involvement of Pictet Bahamas and Pictet Singapore until it was given access to the Swiss Domestic Material. The scale and complexity of the transactions relating to these entities means that PIFSS's ability to fully understand the extent of their involvement is limited and privileged investigations remain ongoing."
"In a complex financial corruption case where the file is large, much of which is comprised of financial information requiring the assistance of forensic accounts, this access protocol has been very difficult to operate effectively and has severely hampered PIFSS' ability to understand the full nature of the Defendants' conduct, evidenced within the criminal file…
…
Although PIFSS has … had access to the Swiss Domestic File since July 2017 it has only been able to understand the nature of its claims on a gradual and incremental basis as a result of the slow and difficult process explained above."
H: Full and frank disclosure
Legal principles
"On an application without notice the duty of the applicant is to make a full and fair disclosure of all the material facts, i.e. those which it is material (in the objective sense) for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers; the duty is a strict one and includes not merely material facts known to the applicant but also additional facts which he would have known if he had made proper enquiries: Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350,1356-1357. But an applicant does not have a duty to disclose points against him which have not been raised by the other side and in respect of which there is no reason to anticipate that the other side would raise such points if it were present."
"As with all discretionary considerations, much depends on the facts…The stronger the case for the order sought and the less serious or culpable the non-disclosure, the more likely it is that the court may be persuaded to continue or re-grant the order originally obtained. In complicated cases it may be just to allow some margin of error. It is often easier to spot what should have been disclosed in retrospect, and after argument from those alleging non-disclosure, than it was at the time when the question of disclosure first arose."
"A party seeking to have without notice relief discharged for non-disclosure must give adequate notice that this ground is relied upon together with sufficient particulars enabling the other party to understand the case to be advanced. An allegation of non-disclosure is potentially serious both for the other party and his legal advisers and the party complaining of non-disclosure must give sufficient notice of his complaint so that there can be a fair hearing, and it should be made without unnecessary delay."
"Claimants and their lawyers have a serious responsibility to the Court on any application made without notice to put all material facts and issues before the Court. That responsibility is the more onerous when the injunction sought and obtained is an asset freezing injunction.
Correspondingly, an allegation that a Claimant or his lawyers have failed in that duty is a serious allegation involving misconduct or default on the part of the Claimant or his lawyers. If it is to be made, adequate and clear notice of it must be given and full details provided of the non-disclosure or misrepresentation alleged."
Discussion
"The Application Notice makes no reference to the possibility of the Defendants raising a limitation defence to the claims made against them, as I suggest it should have done in view of the fact that the order was being sought ex parte to Mr. Amouzegar."
"What is important for present purposes is a cause of action which might expire in between the issue of the claim form and the expiry of time for service under it: for if the claim form has not been served and time for service therefore needs to be extended, the decision whether to extend or not will involve a decision whether the claimant is forced to issue anew, which may leave him exposed to a limitation defence, or else will be permitted in effect to extend time for getting his litigation underway albeit under the protection of a claim form originally issued within time".
Burnton LJ held at paragraph [54] that, in the context of limitation, the primary question was "whether, if an extension of time is granted, the defendant will or may be deprived of a limitation defence".
"a fair exposure of the issues as they ought reasonably to have been apparent at that time. It is clear from the letter written by Atlantis on July 20, 1998 that, at that time, it was considered that the Hague Rules did apply and that its time bar would expire shortly. By the first application on Nov. 20, 1998 it was known that the reverse of the bills was blank, but the time bar issue should have been fairly and frankly explained."
I: Severance
Discussion
"[6] The short answer to this ground of appeal is that the judge was never asked to consider the extension of time on this basis and it is, too late, on appeal to ask this court to do so for the first time. Both parties contended for an all or nothing approach and the judge cannot possibly be criticised for adopting the same approach.
[7] Moreover, any such approach would not only be complicated, it would almost certainly not be justified in a case in which there were arguments about precisely when each claim became time-barred. It is well-settled that when debatable issues of limitation arise, it is inappropriate to attempt to decide them on an interlocutory application for an extension of time for service of a claim form. If the claimants' argument that the claims are not time-barred is correct, they can always begin a fresh action in which, if a time-bar is asserted, it can be adjudicated upon."
"[63] Ms Mulcahy also challenged the jurisdiction of the court or the propriety of allowing what was in effect a partial extension of time. It is not altogether clear from the judgment of Judge Walden-Smith giving permission to appeal whether she thought that this was an independent basis on which the Chief Master's decision could be impugned or whether she considered that it was erroneous because it was based on a mistaken view that the limitation period in respect of the interest fee claim had not expired. But in any event, I see no reason in principle why such an approach is impermissible where it is clear that the relevant limitation affected only a discrete part of the claim. The Chief Master had regard to what Longmore LJ said in City & General v Royal & Sun Alliance [2010] EWCA Civ 911, [2010] BLR 639, at [7], but those observations, which were obiter in that case, do not seek to preclude such an approach where the severed claims are distinct and do not relate to the question of when the remaining claim became time barred. Such an approach seems to me entirely sensible and in accordance with the overriding objective."
J: CPR 6.16 - the cross-application
The parties' arguments
Discussion
"It was argued that an order dispensing with service should not be granted, if it is in fact for the purpose of treating late ineffective service of the claim form as effective service. Rule 7.6(3) is a complete procedural code for an extension of time for service of the claim form after the end of the 4 month period. The discretionary power to dispense with service under rule 6.9 should not be used as a means of circumventing and rendering nugatory the statutory limitation provisions and to do what is forbidden by the clear provisions of rule 7.6(3). The court should only dispense with service where there is a possibility of effective service, which is capable of being dispensed with. There is no possibility of effective service where, as is the case in some of the appeals, the time for service of the claim form has already expired."
"As a general rule applications made for retrospective orders to dispense with service will be caught by the reasoning in Godwin. There may, however, be exceptional cases in which it is appropriate to dispense with service without undermining the principle in Godwin that rule 6.9 should not be used to circumvent the restrictions on granting extensions of time for service as laid down in rule 7.6(3) and thereby validate late service of the claim form."
"[56] In our judgment there is a sensible and relevant distinction, which was not analysed or recognised in Godwin, between two different kinds of case.
[57] First, an application by a claimant, who has not even attempted to serve a claim form in time by one of the methods permitted by rule 6.2, for an order retrospectively dispensing with service under rule 6.9. The claimant still needs to serve the claim form in order to comply with the rules and to bring it to the attention of the defendant. That case is clearly caught by Godwin as an attempt to circumvent the limitations in rule 7.6(3) on the grant of extensions of time for service of the claim form.
[58] Second, an application by a claimant, who has in fact already made an ineffective attempt in time to serve a claim form by one of the methods allowed by rule 6.2, for an order dispensing with service of the claim form. The ground of the application is that the defendant does not dispute that he or his legal adviser has in fact received, and had his attention drawn to, the claim form by a permitted method of service within the period of 4 months, or an extension thereof. In the circumstances of the second case the claimant does not need to serve the claim form on the defendant in order to bring it to his attention, but he has failed to comply with the rules for service of the claim form. His case is not that he needs to obtain permission to serve the defendant out of time in accordance with the rules, but rather that he should be excused altogether from the need to prove service of the claim form in accordance with the rules. The basis of his application to dispense with service is that there is no point in requiring him go through the motions of a second attempt to complete in law what he has already achieved in fact. The defendant accepts that he has received the claim form before the end of the period for service of the claim form. Apart from losing the opportunity to take advantage of the point that service was not in time in accordance with the rules, the defendant will not usually suffer prejudice as a result of the court dispensing with the formality of service of a document, which has already come into his hands before the end of the period for service. The claimant, on the other hand, will be prejudiced by the refusal of an order dispensing with service as, if he is still required to serve the claim form, he will be unable to do so because he cannot obtain an extension of time for service under rule 7.6(3).
[59] In the exercise of the dispensing discretion it may also be legitimate to take into account other relevant circumstances, such as the explanation for late service, whether any criticism could be made of the claimant or his advisers in their conduct of the proceedings and any possible prejudice to the defendant on dispensing with service of the claim form."
Conclusion
