Commercial Bank of Dubai PSC & Ors v Al Sari & Ors

Factual and Procedural Background

This appeal arises from an order committing two appellants to prison for 24 months each for contempt of court due to multiple failures to comply with disclosure requirements under a worldwide freezing order. The freezing order was initially granted in February 2022 and continued in March 2022, requiring the appellants to disclose various assets and documents. The appellants challenged both the contempt findings and the sentence, principally arguing that they were not validly served with notice of the hearing at which they were found in contempt. The appellants did not attend or were unrepresented at the liability hearing but were represented at the sentencing hearing.

Background events include a 2012 debt recovery action by a commercial bank in Sharjah resulting in a substantial judgment in 2016. The bank took control of shares in special-purpose vehicles owned by the appellants and others in 2021, which owned valuable London properties. The bank initiated proceedings in England to enforce the Sharjah judgment and obtained a worldwide freezing order against the appellants and others, imposing detailed disclosure obligations.

The appellants repeatedly avoided service and failed to comply with disclosure obligations. Despite being represented by solicitors initially, the appellants failed to file evidence in response to contempt and summary judgment applications, and their solicitors withdrew in early 2023. The court granted summary judgment and scheduled the contempt hearing earlier than initially planned. The appellants were served with the hearing date by alternative means permitted by earlier service orders but did not attend the liability hearing. The court found the appellants in contempt and adjourned sentencing.

Following notification of the contempt finding, the appellants instructed new solicitors and sought an adjournment of the sentencing hearing, filing an affidavit explaining their lack of engagement and knowledge of the proceedings. The sentencing hearing proceeded with the appellants represented by counsel, who challenged the validity of service of the hearing notice and argued partial compliance with disclosure obligations.

Legal Issues Presented

1. Whether the service of the notice of the contempt hearing (the Listing Order) by alternative means under previous service orders was valid in contempt proceedings.
2. Whether the appellants were in contempt of court for failing to comply with the disclosure obligations of the worldwide freezing order.
3. Whether the appellants’ application under CPR 39.3 to set aside the contempt order made in their absence should be granted.
4. The appropriate sentence for the contempt found.
5. Whether the appellants should be permitted to raise the issue of invalid service for the first time on appeal.

Arguments of the Parties

Appellants' Arguments

• Service of the Listing Order by alternative means permitted under prior service orders did not extend to committal (contempt) proceedings, which require personal service or service on solicitors under CPR 81 due to their penal nature and requirement for high procedural fairness.
• The appellants contended they were not validly served with notice of the liability hearing and were unaware of it, justifying setting aside the contempt order made in their absence.
• They argued partial compliance with disclosure obligations to the extent possible and submitted that the short time allowed made full compliance impossible.
• They sought permission to raise the invalid service point on appeal, stressing its general importance.

Respondents' Arguments

• Accepted that contempt proceedings require personal service or service on solicitors under CPR 81.5 and that if personal service is not possible, a specific order permitting alternative service is necessary.
• Contended that the committal application had been validly served on the appellants' solicitors while they were on record, and subsequent service of further documents, including the Listing Order, by alternative means was valid under prior service orders.
• Argued that if the issue had been raised below, they could have applied retrospectively to validate or dispense with service, and the appellants would be prejudiced if allowed to raise the point first on appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sanchez v Oboz [2015] EWHC 235 (Fam)	Checklist for deciding whether to proceed in absence of a party at hearing.	Applied as a framework to assess appropriateness of proceeding without appellants present.
Navig8 Chemical Pools Ltd v Nu Tek (HK) PVT Ltd [2016] EWHC 1790 (Comm)	Application of absence checklist in commercial context.	Referenced in applying the absence checklist.
ICBC Standard Bank Plc v Erdenet Mining Corporation LLC [2017] EWHC 3135 (QB)	Requirement for personal service in committal proceedings; service by alternative means only if court specifically permits.	Supported strict approach to service in contempt proceedings and necessity of specific court order for alternative service.
Financial Conduct Authority v McKendrick [2019] EWCA Civ 524	Principles for sentencing in contempt cases, including consideration of culpability, harm, aggravating and mitigating factors.	Applied in determining appropriate custodial sentence for appellants.
Navigator Equities Ltd v Deripaska [2021] EWCA Civ 1799	Classification of contempt as criminal proceedings requiring high procedural fairness.	Supported appellants’ argument on procedural fairness and service requirements in contempt proceedings.
Chiltern District Council v Keane [1985] 1 WLR 619	Requirement for personal service of notice of motion and adjourned hearing dates in contempt proceedings.	Supported the principle that personal service is generally required for hearing notices in contempt proceedings.
The Eastern Venture [1985] 1 All ER 923	Requirement for personal service of adjourned hearing orders in contempt proceedings.	Emphasised strict compliance with service rules due to liberty at stake.
Frame Investments Ltd v Airh Ltd (26 May 1988, unreported)	Possible dispensing with personal service in "very exceptional circumstances".	Considered but held that exceptions should not undermine strict service requirements.
Nelson v Clearsprings (Management) Ltd [2006] EWCA Civ 1252	CPR 39.3 applies only where party was validly served and did not attend hearing.	Used to reject appellants’ CPR 39.3 application as service was invalid.
ADM International Sarl v Grain House International SA [2024] EWCA Civ 33	Factors for allowing new points of law on appeal, including interests of justice and prejudice.	Guided the court’s exercise of discretion whether to allow the appellants to raise invalid service point on appeal.
Pittalis v Grant [1989] QB 605	Principles on new points of law on appeal.	Referenced in discussion of discretion to allow new points on appeal.
Singh v Dass [2019] EWCA Civ 360	Discretion to allow new points on appeal.	Referenced in discussion of discretion.
Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337	Discretion to allow new points on appeal.	Referenced in discussion of discretion.
Rhine Shipping DMCC v Vitol SA [2024] EWCA Civ 580	Discretion to allow new points on appeal.	Referenced in discussion of discretion.

Court's Reasoning and Analysis

The court began by applying established criteria to decide whether to proceed in the appellants' absence at the liability hearing, concluding it was appropriate as the appellants had been served and were aware of the hearing.

On the merits, the court found the appellants deliberately failed to comply with extensive disclosure obligations under the freezing order, including failure to disclose assets, bank accounts, disposals to related parties, and asset documents. The court rejected justifications based on UAE law as insufficient and emphasized the deliberate nature of non-compliance.

Regarding service of the Listing Order (hearing notice), the court held that although prior service orders permitted alternative service of "all other documents" in earlier phases, such orders do not automatically apply to committal (contempt) proceedings, which require personal service or service on solicitors under CPR 81.5 due to their penal character and the high standard of procedural fairness required. The court acknowledged the power to dispense with service or order alternative service specifically in contempt proceedings but found no such specific order had been made.

The court reviewed relevant authority, including Chiltern District Council v Keane and The Eastern Venture, reinforcing the need for strict compliance with service rules in contempt proceedings. The unreported Frame Investments Ltd case was noted as allowing dispensing with personal service only in very exceptional circumstances, which were not present here.

Although service of the Listing Order by alternative means was invalid, the court found the appellants had actual knowledge of the hearing date through other means, including communications to their solicitors in related proceedings and monitoring of the email address used for service. The appellants' claim of ignorance was found to be deliberately false and misleading.

The court also rejected the appellants’ argument that failure to comply was excused by impossibility, noting that if difficulties arose, the appellants should have sought court variations. The court emphasized the continuing nature of the breach beyond the deadline.

In assessing whether the appellants could raise the invalid service point for the first time on appeal, the court applied the discretion test from ADM International and related cases. It concluded that allowing the new point would not be in the interests of justice given the appellants’ actual knowledge, the absence of prejudice to the respondents, the risk of delay, and the lack of new evidence that would assist the appellants.

On sentence, the court applied the principles from Financial Conduct Authority v McKendrick, considering culpability, harm, aggravating factors (including attempts to evade service, jurisdictional challenges, and deliberate falsehoods), and mitigation. The court found the custodial sentence of 24 months appropriate and rejected the appellants’ disparity argument regarding a co-defendant’s lesser sentence.

Holding and Implications

The court DISMISSED THE APPEAL.

The court held that the appellants were validly found in contempt of court for deliberate and serious non-compliance with disclosure obligations under the worldwide freezing order. Although service of the hearing notice by alternative means was invalid, the appellants had actual knowledge of the hearing and chose not to attend or defend themselves, negating any procedural unfairness. The court refused to allow the appellants to raise the invalid service point for the first time on appeal. The custodial sentence of 24 months was upheld as appropriate. No new precedent was established beyond affirming the strict requirements for service in contempt proceedings and the court’s discretion in allowing new points on appeal.