Right to respect for private and family life - Military
JSC BTA Bank v Ablyazov and others: QBD (Comm) (Mr Justice Christopher Clarke): 4 July 2012
In August 2009, a freezing order was made against, inter alia, A, who was the first defendant in the proceedings.
Paragraph 9 of the order permitted A, inter alia, to spend up to £10,000 a week towards living costs and to spend reasonable amounts on legal fees. It required him to notify the claimant bank when doing so. A was party to four loan agreements.
The amounts derived from those loans (£40m in all) were used to fund the legal expenses and living expenses of A and others. In a subsequent judgment of October 2011, the court held that there was good reason to consider that the lending companies involved in the agreements were ultimately owned by A. The bank applied to the court for a declaration that, in the event that the loans were valid agreements, A’s rights under them were his assets for the purposes of the freezing order and that any drawings under the agreements could only lawfully be made pursuant to paragraph 9 of the order. The bank further sought disclosure of those drawings made pursuant to the agreements. In February 2012, A was found guilty of contempt of court, and in breach of a court order disappeared, apparently fleeing the jurisdiction.
The issue was whether, in exercising his rights under the agreements to have the lenders pay money to, inter alia, his solicitors, A was disposing of or dealing with assets within the meaning of the freezing order. In order to decide that issue, it was necessary to consider the manner in which the order was to be construed. The application would be dismissed.
The order was to be construed in the way in which it ought reasonably to be understood by a businessman to whom it was addressed in the light of the purpose which it was designed to serve. Further, where there were two possible constructions, the court ought, in any matter that could well give rise to penal sanctions, adopt the construction most favourable to the putative contemnor (see ,  of the judgment).
The order sought to prevent A from disposing of his assets otherwise than in the ordinary course of business or to frustrate any attempt by the bank to secure payment. Given that the order had used ordinary language, it was legitimate to consider how the words would be understood by a businessman who was made subject to the restrictions of the order. It was dangerous to treat language designed to prevent the removal from a claimant’s grasp of that which he might secure in execution of a judgment as applicable to every chose in action including the right to incur a liability. A’s rights under the agreements were not assets within the meaning of the order, nor was his exercise of his rights a dealing of or dealing therewith. A right to borrow on the terms of the loan agreements was not the sort of asset that the freezing order had contemplated (see ,  of the judgment).
The declaration sought would not be made and no consequential relief would be granted (see  of the judgment).Stephen Smith QC and Tim Akkouh (instructed by Hogan Lovells) for the claimant; Duncan Matthews QC and Charlotte Tan (instructed by Addleshaw Goddard) for the defendant.