JSC BTA Bank v Mukhtar Ablyazov (June 2011)
The court ordered that a claimant's application to commit a defendant to prison for contempt of court should be heard before the trial of the substantive claim, but ordered the claimant to select three contempt allegations to be heard out of the 23 allegations cited in its application.
The court was required to give directions concerning the claimant bank's application to commit the defendant (M) to prison for contempt of court. The bank had issued a number of claims against M and had obtained a freezing order against him. The bank then issued an application for the committal of M to prison for breaching the freezing order. The application cited 35 allegations of contempt, which the bank later reduced to 23 allegations. The trial of the substantive claims was due to take place in five months' time, in November. M submitted that the hearing of the contempt allegations should be delayed. He argued that an early contempt hearing would prevent him preparing properly for the November trial and the contempt application concerned his credibility and raised issues which would also arise at the trial.
(1) Where allegations were made that a freezing order had been breached, the claimant might bring a contempt application as a means of putting pressure on the defendant to comply. It was therefore usually appropriate to determine contempt applications promptly and before the trial of the underlying action, though the interests of fairness might sometimes require that it be determined after trial, Dadourian Group International Inc v Simms (2006) EWCA Civ 1745, (2007) 1 WLR 2967considered (see para.5 of judgment). (2) It was undesirable to disrupt the November trial date by ordering that a long contempt hearing take place in the interim period when the parties should be preparing for the trial of the actions. Therefore, on case management grounds, the contempt application should be limited to three allegations, one from each of the several categories relied upon by the bank. If the contempt application was limited in that way, it would not unduly disrupt the preparations for the main trial or cause unfairness to M. It was true that M's credibility would be in issue on the contempt application, and there was a potential overlap between the contempt application and the trial, but having regard to the limited number of contempt allegations to be heard and the importance to the bank of the efficacy of the freezing order, those matters did not mean that the contempt hearing should be delayed (paras 6-10). (3) The bank should decide which contempt allegations it wished to rely upon within seven days. The bank was also ordered to disclose to M within seven days any documents which damaged its case on contempt or assisted M's case. Fairness required that any such documents should be disclosed, Masri v Consolidated Contractors International Co SAL (2010) EWHC 2640 (Comm) considered. If the bank had no such documents, its solicitor should swear an affidavit stating that it had no documents to disclose (para.12).