Pre-trial or post-judgment relief - Freezing order - Committal order - Disclosure
JSC BTA Bank v Mukhtar Ablyazov and others; JSC BTA Bank v Addleshaw Goddard LLP: QBD (Comm) (Mr Justice Teare): 15 May 2012
Section 37 of the Senior Courts Act 1981, so far as material, provides: ‘(1) The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.'
In the instant case, the claimant bank (the bank) had commenced proceedings to trace and recover the proceeds of a massive international fraud. As part of those proceedings, a freezing order, a receivership order and a surrender order had been obtained against the first defendant, A. A subsequently disappeared and efforts by the bank to locate him proved fruitless.
On 16 February 2012, A was held to be in contempt of court in respect of the worldwide freezing order (see  EWHC 237 Comm). On the same day, A was sentenced to 22 months’ imprisonment. Also on the same day, the bank, in an effort to track down A’s location, applied to the court, ex parte, for an order that the respondent firm of solicitors (AG), which had acted for A, provide to the bank and the ‘tipstaff’ all contact details which they had for A (the first application). AG informed the solicitors acting for the bank that AG was in contact with A on a daily basis by way of a conference call (the conference call facility) and via email (the email facility).
The following day, the bank applied for an order that AG provide the bank’s solicitors and the tipstaff with all contact details for A, including the email facility and the conference call facility (the second application). The court subsequently ordered A to surrender to the tipstaff. He did not do so. The instant matter was the determination of the second application.
It fell to be determined whether: (i) the court had jurisdiction to make the order for disclosure as sought; and (ii) whether the order ought to be made. The claimant submitted, inter alia, that the court had such jurisdiction to make the order sought in the exercise of its discretion, and that the court should make the order, essentially for the reasons given in a previous judgment (see  1 All ER 735). On behalf of AG, it was submitted that the court had no jurisdiction to make the order sought and that, if the court had such jurisdiction, the order ought not to be made.
A partner of AG, in a witness statement, stated that if the court were to grant the order, A had stated that he would cease to use either the conference call facility or the email facility for fear that the bank would use it to trace his whereabouts or listen to and monitor the confidential and privileged communications between A and AG. The result, it was contended, would be that A’s fundamental right to obtain confidential and privileged legal advice would be prejudiced. Consideration was given to section 37 of the Senior Courts Act 1981. The application would be dismissed.
It was settled law that the court had jurisdiction to make an order ancillary to the making of an injunction where it was just and convenient to make the order to ensure the effectiveness of an injunction. In deciding whether an order, pursuant to section 37 of the act, was ‘just and convenient’ in any particular case, or whether the court should, in the exercise of its discretion, make the order sought, the court had necessarily to take into account both the absolute nature of the right to confidential and privileged legal advice and the prior right to have access to such advice (see , ,  of the judgment).
In the instant case, the court had jurisdiction, pursuant to section 37 of the act, to make the order sought. However, it was not just and convenient to make the order sought because the conference call facility and email facility were protected by legal professional privilege. Further, it was not just and convenient to make the order sought because the foreseeable consequence of the order sought would be to deprive the first defendant of his right of access to AG for the purposes of seeking and obtaining confidential and privileged legal advice (see ,  of the judgment).
Stephen Smith QC and Tim Akkouh (instructed by Hogan Lovells International) for the bank; Timothy Dutton QC (instructed by Addleshaw Goddard) for AG.