Barclays Bank PLC v Dylan & Ors

Factual and Procedural Background

The summary concerns two related actions managed and to be tried together, brought by Company A against multiple defendants including several individuals and companies now in liquidation. Company A alleges that money was wrongfully taken by some combination of the defendants. Early in the proceedings, freezing orders were obtained against the individual defendants and the companies in liquidation. The case was previously managed by Deputy Master Henderson, who scheduled a trial for January 2025 but was unable to resolve disclosure issues due to defendants' failure to engage with the disclosure process. A further disclosure hearing was adjourned by consent to the current date.

Contempt proceedings were initiated by Company A against certain defendants for breaching freezing injunctions and were scheduled for trial in January 2024. Prior to that trial, one defendant raised concerns about his mental fitness to participate, leading to an adjournment and a pre-trial review by Judge [Last Name]. The judge ordered a joint expert report on the defendant’s capacity and mental health, which has been produced but not relied upon in the current hearing. A further pre-trial review on the mental fitness issue is scheduled for April 2024, with the contempt trial set to commence shortly thereafter.

Recently, the individual defendants applied to adjourn the current disclosure hearing, citing medical reasons related to one defendant’s recent surgery and another’s mental health conditions. The application was supported by witness statements but initially lacked formal medical evidence. Supplementary medical documents were provided on the day of the hearing, including psychiatric and GP reports for the mental health defendant and hospital records for the surgical defendant.

The defendants also submitted written arguments opposing certain disclosure issues, particularly concerning a "third purported restructure" involving transfers of assets to the British Virgin Islands after the proceedings began. They raised concerns about self-incrimination and requested additional data from Company A. The claimant seeks an order for extended disclosure to progress the case toward the scheduled trial date.

Legal Issues Presented

1. Whether the application to adjourn the disclosure hearing on medical grounds should be granted.
2. Whether the "third purported restructure" should be included as an issue for disclosure.
3. The scope and terms of extended disclosure to be ordered in the proceedings.
4. The appropriate allocation of costs related to the adjournment application and disclosure hearing.

Arguments of the Parties

Defendants' Arguments

• The hearing should be adjourned due to Jack Mason’s recent appendectomy and potential complications.
• Scott Dylan’s significant mental health conditions prevent fair participation in the hearing.
• An adjournment is necessary to ensure fairness and protect the defendants’ rights to a fair trial.
• The disclosure process should be coordinated to maintain the integrity and continuity of evidence, suggesting all defendants’ disclosures occur together.
• They do not agree the "third purported restructure" should be subject to disclosure, arguing no binding order exists and raising concerns about self-incrimination.
• They intend to apply to stay the contempt proceedings until after disclosure issues are resolved.
• They request certain raw transactional data from Company A and object to some proposed disclosure date ranges and keywords on cost grounds.

Claimant's Arguments

• The medical evidence supporting the adjournment application does not meet the required standards established in precedent for unfitness to participate.
• Jack Mason’s hospital discharge notes and GP sick note lack detailed reasoning on how his condition prevents participation in this hearing.
• Scott Dylan’s medical evidence is outdated and more current expert evidence exists but has not been relied upon.
• Disclosure is fundamental to civil litigation, and the defendants have been aware of their obligations from the outset, having been represented by solicitors initially.
• The "third purported restructure" is a relevant issue for disclosure given its connection to the conspiracy claim and has been recognized as non-fishing in prior related proceedings.
• Privilege against self-incrimination is addressed by the Practice Direction and should not prevent disclosure orders.
• The claimant proposes a pragmatic extended disclosure order incorporating agreed issues and clear directions to facilitate progress toward trial.
• The defendants should bear a portion of the claimant’s costs related to the adjournment application and disclosure hearing due to their lack of engagement and refusal of pragmatic offers.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by assessing the medical evidence submitted in support of the adjournment application against the established criteria from GMC v Hayat. It found that the evidence relating to Jack Mason’s appendectomy was primarily physical and lacked detailed explanation of how his condition prevented participation, with no confident independent expert opinion. The GP’s sick note was insufficiently detailed and did not address accommodations or prognosis relevant to the hearing.

Regarding Scott Dylan, the court noted that the medical evidence relied upon was outdated and that more current expert evidence pursuant to a court-ordered joint report existed but was not presented. Given that a previous judge had examined the evidence and declined to adjourn the related contempt trial, the court was not persuaded that adjournment was warranted for this hearing, which is procedural and does not require the defendants’ personal attendance.

The court emphasized that the individual defendants have been able to engage through direct access counsel and have participated in proceedings at critical stages, undermining the claim of inability to participate. It also highlighted the lengthy history of the case and prior orders aimed at progressing disclosure, noting the defendants’ failure to engage properly despite opportunities and offers to proceed pragmatically.

On the disclosure issues, the court found that the "third purported restructure" is a relevant and pleaded issue that must be included in disclosure. Prior judicial consideration had rejected arguments that disclosure related to this restructure was a fishing expedition. Concerns about self-incrimination were addressed by the Practice Direction and did not justify withholding disclosure.

The court approved a pragmatic approach to extended disclosure, using the defendants’ own draft requests as a starting point but incorporating overarching provisions on date ranges, search parameters, devices, and keywords to ensure clarity and compliance. The court rejected the defendants’ requests for additional data conversion beyond existing documents.

Finally, the court considered the costs of the adjournment application and disclosure hearing, concluding that the defendants’ lack of cooperation and refusal to accept reasonable offers justified ordering them to pay 30% of the claimant’s costs for the day, summarily assessed at £17,400 inclusive of VAT.

Holding and Implications

The court refused the application to adjourn the disclosure hearing. It ordered that extended disclosure proceed on the terms outlined, including the inclusion of the third purported restructure as a disclosure issue and clear overarching directions to facilitate compliance.

The court also ordered the defendants to pay 30% of the claimant’s costs of the hearing, assessed at £17,400 inclusive of VAT, with the balance to be costs in the case.

The decision directly advances the management of these proceedings toward the scheduled trial in January 2025 and reinforces the importance of proper engagement with disclosure obligations. No new legal precedent was established; rather, the court applied established principles to the facts and procedural history of this case.