Home Information Cases Kazakhstan Kagazy PLC v Baglan Abdullayevich Zhunus & Ors (2020)

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Kazakhstan Kagazy PLC v Baglan Abdullayevich Zhunus & Ors (2020)

Summary

The court declined to exercise its discretion under CPR r.3.1(7) to reconsider or vary various orders concerning the failure of a party in relation to information and pleadings, as the discovery of an order made in another jurisdiction was not a material change of circumstances and there had been no misstatement to the court about the existence of the order.

Facts

The respondents to a charging order application applied under CPR r.3.1(7) for reconsideration or variation of orders.

The respondents had failed to provide substantive responses to a request for further information. An unless order was made requiring them to particularise or withdraw certain allegations, in default of which the points of defence would be struck out. The respondents asked the claimants' to confirm whether they were aware of an order in any jurisdiction limiting any person from communicating with them. Their solicitors' letter stated that they had not obtained orders in any jurisdiction prohibiting the former trustees of, or advisers to, the respondents from providing information or documents that were obtained or generated by the advisers whilst offering services to or on behalf of the respondents. The respondents applied for relief from sanctions for breaches of the unless order. Relief was granted in respect of some, but not all, of the breaches, parts of the points of defence were struck out and permission was refused for the respondents to serve amended responses. The day after the relief from sanctions hearing, the respondents discovered that a Nicosia court had made an order, on the claimants' application, which provided that the contents were confidential and that the Nicosia defendants, which included the respondents' former advisers and former trustees, had to refrain from disclosing the existence or contents of the application and order to anyone. The respondents sought the revocation or variation of the various orders concerning the pleadings on the ground that the Nicosia order had hampered their ability to comply with the unless order and the court had been misled by the solicitors' letter.

Held

Revocation or review under CPR r.3.1(7) - CPR 3.1(7) provided that the court's power to make orders included power to vary or revoke orders previously made. It did not give litigants a general liberty to have two bites at the cherry, arguing, losing, then re-arguing any given application, Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) [2012] EWCA Civ 518, [2012] 1 W.L.R. 2591, [2012] 4 WLUK 597 applied. Normally it would only be appropriate to consider exercising a discretion to reconsider an order made after a contested inter partes process where: (i) there had been a material change of circumstance since the order was made, (ii) the facts on which the decision to make that order was based had been misstated to the court (innocently or otherwise), or (iii) there was a manifest mistake in the formulation of the order (see para.2 of judgment).

Whether the letter had been a misstatement - The Nicosia order did not prohibit the Nicosia defendants from providing to the respondents information and/or documents that were obtained or generated by them whilst offering services to or on behalf of the respondent. Therefore there was no misstatement of the factual position to the court. The respondents discovery of the Nicosia order was not a material change of circumstances. Even if the solicitors' letter had misstated the position, the Nicosia order was irrelevant to the respondents' pleading defaults (paras 20-22, 28).

Applications refused

Queen's Bench Division (Comm)
Andrew Baker J
Judgment date
25 March 2020
References
LTL 25/3/2020 : [2020] 3 WLUK 340