Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Gems NV & Ors

Factual and Procedural Background

The Appellant, hereafter referred to as Plaintiff, is subject to a summary judgment from 13 February 2002 for a sum exceeding ten million dollars. In April 2007, Plaintiff was arrested in Belgium and detained pending possible extradition to a foreign jurisdiction where he faced potential prosecution. Plaintiff voluntarily traveled to that foreign jurisdiction to avoid extradition proceedings. The English Court had ordered Plaintiff to attend an examination regarding his financial means pursuant to the summary judgment, but Plaintiff’s travel restrictions imposed by foreign authorities complicated compliance with this order.

Procedurally, an order was made on 16 January 2007 under CPR Part 71 for Plaintiff’s examination. The hearing was initially fixed for 20 February 2007, later re-fixed to 1 May 2007 due to service difficulties. Plaintiff’s arrest in Belgium on 11 April 2007 led to the adjournment of the hearing sine die. Plaintiff was released on 25 May 2007, and the hearing was re-scheduled to 3 July 2007, but again adjourned due to Plaintiff’s medical condition. Subsequent hearings were repeatedly adjourned and re-fixed, with Plaintiff traveling to the foreign jurisdiction on 8 October 2007 to avoid extradition.

In late 2007, Plaintiff sought permission from the foreign court to travel abroad for forty-seven days, including the date fixed for examination in London. The foreign court granted only forty days starting from 2 December 2007 to 10 January 2008, which conflicted with the English Court’s schedule. Plaintiff faced difficulties obtaining travel documents and only left the foreign jurisdiction on 22 December 2007. Plaintiff applied to extend his travel permission to 31 January 2008 but, on advice from foreign counsel, did not seek permission to exceed the forty-day limit.

On 31 January 2008, Plaintiff failed to appear for examination in London. The judgment creditor applied for a suspended order of committal against Plaintiff for contempt of court. The duty judge, Bean J, granted a suspended committal order for twenty-eight days’ imprisonment, conditional on Plaintiff’s compliance with the examination order. Plaintiff complied with the order on the date of the appeal hearing, having obtained extended permission to travel abroad for six months.

Legal Issues Presented

1. Whether the duty judge was correct to make a suspended order of committal against Plaintiff for contempt of court on 31 January 2008.
2. Whether Plaintiff’s failure to attend the examination was contumacious given the foreign travel restrictions and advice from foreign counsel.
3. The appropriate application of CPR Part 71.8 regarding committal orders for failure to attend examination.

Arguments of the Parties

Respondent's Arguments

• Plaintiff’s second application to the foreign court omitted any reference to the need to attend the London hearing on 31 January, implying no conflict.
• No indication was given to the court fixing the 31 January hearing that attendance would be impossible.
• Plaintiff was in breach, or at least nominal breach, of the foreign court’s travel order until it was extended on 22 January 2008.
• Plaintiff delayed notifying the court and respondents of the attendance problem until very late (29 January).
• No direct evidence from Plaintiff’s foreign lawyers was presented to substantiate his legal advice.
• The letter from Plaintiff’s foreign lawyers gave a misleading impression regarding the reasons for his return to the foreign jurisdiction.
• The claimed advice from foreign lawyers restricting Plaintiff’s travel requests was considered fanciful and not credible.
• On these grounds, Plaintiff’s conduct was contumacious, justifying the committal order.

Appellant's Arguments

• Plaintiff followed foreign legal advice not to seek permission to extend travel beyond forty days to avoid overburdening the foreign court’s patience.
• At the time of fixing the hearing, Plaintiff hoped to obtain permission after establishing good standing with the foreign court by timely return.
• Any breach of the foreign court’s order was rectified by the extension granted on 22 January 2008.
• The absence of direct evidence from foreign lawyers should not automatically discredit Plaintiff’s credible evidence.
• The letter from foreign lawyers was accurate in its limited scope and consistent with Plaintiff’s legal advice.
• The foreign court’s prior reluctance to grant requested travel periods explains the cautious approach taken.
• Plaintiff’s failure to attend was not contumacious given the foreign travel restrictions and legal advice.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court carefully reviewed the procedural history and the interplay between the English Court’s orders and the foreign court’s travel restrictions. It acknowledged the complexity resulting from Plaintiff’s legal difficulties abroad and the consequent travel limitations imposed by the foreign jurisdiction. The court analysed the provisions of CPR Part 71.8 governing committal orders for failure to attend examination, noting that the rule contemplates a discretionary power to make a committal order which is usually suspended and subject to discharge upon compliance.

The court found that the order made by Bean J was premature and made without sufficient consideration of the foreign travel restrictions and Plaintiff’s legal advice. The court observed that the information before Bean J was limited and that the hearing was brief, which likely contributed to the order being made summarily. It emphasized that a judge should exercise caution before making a committal order where evidence shows that attendance was prevented by factors outside the judgment debtor’s control, such as foreign legal constraints.

The court rejected the submission that Plaintiff’s conduct was contumacious to the criminal standard required, concluding that the evidence did not establish contumacious disobedience justifying committal. The court considered that Plaintiff’s previous adjournments were for legitimate reasons and that his failure to attend on 31 January was due to foreign travel restrictions rather than deliberate defiance. The court further noted that the suspended committal order was automatically discharged upon Plaintiff’s compliance with the examination order, rendering the appeal academic in practical terms.

Ultimately, the court held that Bean J erred in making the committal order and that the appeal should be allowed to set aside that order.

Holding and Implications

The court’s final decision was to ALLOW THE APPEAL and set aside the suspended committal order made by Bean J on 31 January 2008.

The direct consequence is that Plaintiff is relieved from the committal order, which was automatically discharged upon compliance with the examination order. The decision does not establish new legal precedent but clarifies the necessity for courts to carefully consider foreign travel restrictions and legal advice before making committal orders under CPR Part 71.8. It underscores the discretionary nature of such orders and the importance of ensuring that judgment debtors are not unfairly penalized where non-attendance results from factors beyond their control.