Summary

The court was prepared to hear a contemnor in opposition to a bank's application for a final charging order over a property, where the property was not the subject of the court order in respect of which the contemnor was said to be in breach.

Facts

The court was required to determine whether to permit a person (S), who was said to be in contempt of court, to be heard in opposition to the application of a Kazakh bank (B) for a final charging order in respect of a London flat.

B had brought proceedings alleging that the first defendant (D) and others had misappropriated substantial sums. D had been barred from defending the claim for failing to comply with court orders. In that decision the court had found that D was the beneficial owner of the London flat and had disbelieved the evidence of S, who said that the flat belonged to him. B had obtained a default judgment against D and judgment against other defendants. It applied for a final charging order in respect of the flat and S sought to oppose the application.

B contended that S was in contempt of court because he had failed to comply with disclosure orders and therefore should not be heard on the application. S argued that he was entitled to defend his property interests under the European Convention on Human Rights 1950 Protocol 1 art.1 even if he was in contempt.

Held

The court's discretion had to be exercised by reference to the principles laid down by the Court of Appeal in JSC BTA Bank v Ablyazov [2012] EWCA Civ 639, JSC BTA Bank applied. Any decision preventing S from being heard had to be a proportionate interference with his rights. There had been no application to commit S for contempt and no finding of contempt in contempt proceedings. However, it was clear that it had been held in the course of the proceedings that S had not fully complied with disclosure orders and to that extent he could properly be treated as in contempt. It was doubtful whether a person who was in contempt should be described as entitled to defend his property interests. However, in the instant case the property in issue was not the subject of the order in respect of which S was said to be in breach, and in those circumstances it would not be proportionate to debar S from being heard on B's application.

Judgment accordingly