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Court of Appeal considers the boundaries of Passport Orders

Civil Fraud & Asset Recovery, Judgments

06 August 2021

The power of the Court to grant a passport order under s 37 of the Senior Courts Act 1981 was first recognised by the Court of Appeal in Bayer AG v Winter [1986] 1 W.L.R. 497.  The power to make such an order is an important part of the Court’s procedural armoury, particularly in cases involving civil fraud.

In an important judgment handed down on Friday 30 July 2021 — Lakatamia Shipping Co Ltd v Su [2021] EWCA Civ 1187, the latest of a series of judgments in high profile litigation which has been running for many years — the Court of Appeal (Asplin and Carr LJJ and Sir Nicholas Patten) considered an important “safeguard” to protect the liberty of the respondent to a passport order.  That is, the order must be limited in its duration and should be only so long as is necessary to serve the purpose for which the order was made.  The Court of Appeal observed (at [6] and [42]) that:

“The interference with the liberty of the respondent under a passport order must … be for no longer than is necessary to achieve the purpose for which it was granted. How long that actually is will necessarily depend upon the purpose for which it is granted. … It goes without saying that the longer the order remains in place, the greater will be the onus on the applicant to justify its continuation.”

Courts had previously emphasised the importance of a passport order being very strictly limited in its duration.  The Court of Appeal’s judgment converts those judicial observations into a general principle, albeit a flexible one, and requires passport orders to be closely-monitored in order to ensure that they continue to serve their original purpose in an effective and proportionate manner. 

Thomas Grant QC, Ryan James Turner and Rory Forsyth acted for the appellant, instructed by Ashfords LLP. 

The full judgment is available here.


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