Apex Global Management Ltd v FI Call Ltd & Ors

There are two sets of proceedings concerning the affairs of Fi Call Ltd. They are, in effect, cross-“unfair prejudice” petitions. On one side of the argument is Apex Global Management Ltd and Mr. Almhairat (the "Apex parties"). On the other side is Global Torch Ltd., Prince Abdulaziz, Prince Mishal and Mr. Abu-Ayshih (the "Global parties").

A case management conference was convened before Vos, J. on 31st July with a view to, in effect, consolidating the proceedings and to manage the trial of the underlying issues which are serious in nature. Each side accuses the other of profound wrongdoing. The basis on which the Apex parties pursue their allegations of wrongdoing, which include allegations that Prince Abdulaziz has been involved in money laundering in connection with the facilitation of terrorist organisations, is certain e-mails and electronic communications. The Global parties say that these e-mails and electronic communications are forged. Vos, J. had therefore to consider at the CMC how to preserve the underlying material - both the actual communications and the metadata which surround them - in order to ensure that the allegations of forgery could be properly addressed.

From the terms of his Order, and from the parts of the transcript of the hearing to which my attention has been directed, it is clear that he regarded as fundamental to the fair adjudication of the issues that there should be created a reference copy of all of the relevant materials and that this reference copy should be prepared for the purposes of preservation of all the raw material. The parts of that raw material relevant to the issues in action would then form the subject matter of disclosure and if there were debates about whether documents were discloseable or not, or whether the documents existed, then resort could be had to the reference copies, if necessary, to resolve the dispute.

This, I take it, is the policy lying behind paras. 13, 14, and 15 of the Order which the judge made on 31st July. Paragraph 13 required the parties (without prejudice to the terms of the Order or any wider obligation) to preserve all evidence, documents, information or data within their control which were, or might be, relevant to the issue in the proceedings as to the authenticity of documents and e- mails, and to preserve all devices and equipment in the control of any party and on which any such evidence, documents, information or data are or may be held. Paragraph 14 then directed named parties, by 4.00 p.m. on 6th August, to file and serve a statement certified by a statement of truth signed by them personally stating a number of specified matters (such as the location of servers; the location of backup servers; whether the servers were operational or had been decommissioned and, if so, when; identifying e-mail accounts provided by Fi Call for which the parties have, or had in the past had, access; identifying electronic devices provided by Fi Call to any of the parties to which those parties had access or had in the pasthad access; and stating in relation to each such account and each such device whether that party still had access to it and if not, why not). Paragraph 15 contained similar requirements which it is unnecessary to set out at length in relation to e-mail accounts and electronic devices not provided by Fi Call Ltd but on which evidence, documents, information or data relevant to the issues in the proceedings are, or were, held.

The named parties included Prince Abdulaziz. There had been specific debate before Vos, J. as to whether the Prince should be included within the scope of those orders or whether his personal assistant, Mr. Abu-Ayshih, could make a statement on the Prince's behalf. However, the judge clearly decided that the Prince himself must be subjected to the same personal obligations as every other named party. The judge pointed out that the Prince was a party and was going to be a witness. So, it seemed to the judge that the Prince should be required to behave like any other party and if he chose not to, then to explain why. The debate included this passage from the judge:

The Prince did not comply with para. 14 or with para.15 of the Order. What happened was that his personal assistant made a witness statement in which he referred to a royal conduct protocol which dictated that members of the ruling family do not make statements in litigation. So,

On the face of it, Prince Abdulaziz is therefore in clear breach of the Order of Vos, J. The question is: What should be done about it? The Rules set out in the CPR as to the steps that may be taken in the face of non-compliance with court orders must be applied and interpreted in the light of the overriding objective. That overriding objective now includes as a specific consideration “enforcing compliance with rules, practice directions, and orders”.

As is made clear in Marcan Shipping London v. Kefalas [2007] 1WLR, 1864 at para. 36, the making of orders which may lead to the striking out of statements of case or the dismissal of claims or counterclaims requires a careful consideration of whether that sanction is appropriate in all the circumstances of the case. It is there recognised that it is impossible to foresee the nature and effect of every possible breach and the party in default can always apply for relief. However, the striking out of a statement of case is one of the most powerful weapons in the court's case management armoury and should not be deployed unless its consequences can be justified.

Mr. Lightman submits that the “unless” order for which he applies - namely, that unless Prince Abdulaziz complies with para. 14 and para. 15 of Vos, J.'s Order then his defence should be struck out - plainly warranted deployment of one of the court's most powerful weapons. He submits that the Prince's failure to comply with the Order is simply a deliberate decision to place what is said to be a royal protocol above the rules of the court from which relief is being sought. Mr. Lightman would say that such behaviour is corrosive to justice; that it will set a precedent for the future obligations of the Prince in relation to this litigation.

Mr. Wardell QC submits that, on the contrary, since the Prince has procured that his personal assistant should make a statement on his behalf which sets out, according to the statement itself, what is the state of knowledge of Mr. Abu-Ayshih of the Prince's own knowledge of the servers, backup servers, operational status of servers, e-mail accounts provided by the company, electronic devices provided by the company, and who has or has not access to those accounts all that Vos, J. ordered should be provided had been provided. Likewise, the fact that the personal assistant has set out, albeit, I think it would have to be acknowledged, not in complete compliance with para. 15, what the Prince's solicitors describe as the "spirit" of the Order means that there is no real prejudice which is occasioned by this non-compliance. Mr. Wardell, QC would say that the real question as towhat steps should be taken in the face of the Prince's deliberate non-compliance with the Order is whether a fair trial can still be held and that since the Apex parties have not identified any prejudice beyond showing certain gaps in compliance with the Order, following upon the breach of the strict terms of the Order, then no real sanction should be applied.

I find myself in agreement with the observation of Mr. Justice Christopher Clarke in JSC BTA Bank v. Ablyazov (No. 3) [2010] EWHC 2219 when he said,

It seems to me that fundamental to the examination of the issues of forgery is the preservation of such electronic data and other documents as now exist. Vos, J. gave careful consideration as to what material should fall within the scope of that preservation order. He decided that it should be preserved by reference to the accounts through which communications were made and the devices on which communications were made. He directed each of the parties and principal actors to list the relevant accounts and the relevant devices which may still hold, or may at some time in the past have held, material communications. In other words, the relevant data for preservation is data in the accounts or on the devices which all parties were required to disclose. The obligation was so serious that that was made a personal named obligation. The Prince was included within those named.

It would seem to me that if he does not comply with the Order there is a real risk that the overall fairness of the proceedings will be jeopardised. Everyone else will have put their cards on the table. The Prince will deal through an agent. Everyone else will be exposed to criticism and have their credibility attacked if they are shown to have concealed some relevant account, relevant device, or relevant communication. But, the Prince says that he should be exempt from that criticism.

So, it seems to me that some sanction must be applied. Mr. Lightman asks for an order debarring the Prince's defence. I am satisfied that such an order would be entirely consistent with the Prince's Article 6 rights. (See the discussion of that topic in Stolzenberg v. CIBC Melon Trust [2004] EWCA (Civ) 827 at paras. 161 and following.) However, I must still consider whether an “unless” order on those terms is appropriate or whether some lesser sanction might be appropriate - for example, debarring the Prince from adducing evidence.

I am satisfied that an unless order by reference to a debarring of the Prince's defence is the only proper relief to grant in these circumstances. First, it is not necessarily the end of the road for the Prince. It provides a firm indication that in the judgment of the court he should have one more chance to comply with the Order or face a known consequence. Secondly, it seems to me unsatisfactory if the trial were to proceed on the footing that everyone else had disclosed all of their accounts and devices but the Prince had avoided personal responsibility for what was said about his own devices, his own accounts, and his own documents. In the terms of Mr. Justice Clarke's statement, there would be a clear impact on the overall fairness of the proceedings. Thirdly, since the issue received specific consideration, and since Vos, J. had clearly formed the view that an order in the terms of paras. 14 and 15 was what was required for a fair adjudication of the issues, I think the wider interests of justice require Vos, J.'s assessment of the position to prevail over Prince Abdulaziz's personal assessment of the position. In the circumstances I propose to grant the relief sought.