Commercial Bank of Dubai PSC & Ors v Abdalla Juma Majid Al Sari & Ors

1. This is an application to commit the tenth defendant in these proceedings for contempt of court. The contempt alleged is a wholesale failure to comply with the asset disclosure provisions of a worldwide freezing order granted by Foxton J on 15 January this year. The claimants have been represented before me by Mr Andrew Trotter and Madelaine Clifford. I am grateful to them for their helpful written and oral submissions. The defendant has not appeared and is not represented before me. Indeed, he has not engaged with the application at all. Absence of defendant

2. The first question to address is therefore whether the Court should proceed to committal in his absence. I was referred by Mr Trotter to guidelines articulated first by Cobb J in Sanchez v Oboz [2015] EWHC 235 (Fam) , which are conveniently summarised in a more recent judgment of Cockerill J, as she then was, in ICBC Standard Bank plc v Erdenet Mining Corporation LLC [2017] EWHC 313. This is not a prescriptive checklist, nor is it exhaustive; it is merely an indication of the factors that the Court will take into account. Obviously, the decision whether or not to proceed in the absence of a defendant is a matter for the discretion of the Court, taking into account the circumstances of the case as a whole, and the Court is clearly required to proceed with care and caution.

3. While contempt is a form of civil proceeding, it is well established that the appropriate standard of proof is the criminal standard. In other words, the Court must be satisfied of facts so that it is sure. Looking at the various factors set out, I am satisfied so that I am sure, on the evidence before me, that Mr Almheiri was served with the relevant documents, including notice of this morning’s hearing, and that he has had sufficient notice to enable him to prepare. In particular, I am satisfied that the claimants were entitled to effect service on Mr Almheiri in accordance with the further order that Foxton J made on 15 January this year in which he gave permission to effect service of all documents in the proceedings on Mr Almheiri by alternative means, including for the purposes of any prospective contempt application.

4. Accordingly, service in accordance with that order is proper and effective service for the purposes of this application. Mr Almheiri was, on the evidence, properly served in accordance with that order with: first, the underlying worldwide freezing order, which was served by various means on him on 15, 16, and 18 January; second, with the contempt application, with which he was served on 2 April and again on 3 April; and third, with notice of the date originally fixed for the hearing of this application. Indeed, there is evidence that he in fact read the WhatsApp message that was one of the means used to notify him. He was also served with the notice vacating that date and refixing the hearing for today. In accordance with the alternative service order of Foxton J, the worldwide freezing order and alternative service order were also served on the defendant’s UAE lawyers, Hadef. The claimants further sent a notice of the relisted hearing to Mr Almheiri’s lawyers in the UAE, OBH, who. They responded on 8 October by email, thereby demonstrating that they at least were fully aware that the application would be heard today.

5. In these circumstances, I have no doubt that Mr Almheiri has been fully aware of this application since 2 April, and of an imminent hearing since mid-August. He has therefore had ample time to prepare to meet the application but has deliberately chosen not to engage or to appear. This is entirely in keeping with what appears to be a concerted campaign by all the defendants to frustrate the claimants’ attempts to enforce their judgments and to avoid compliance with any court orders.

6. As to the other factors in the checklist, no good reason has been advanced by Mr Almheiri for his non-attendance. The closest one gets is OBH’s email of 8 October. What exactly is being said in that email is not easy to interpret, but it appears to take two points: first, that Mr Almheiri can only be properly served in accordance with the bilateral service treaty between the UK and the UAE, and that the claimants’ solicitors have no right to communicate directly with either them or Mr Almheiri otherwise than in accordance with that treaty; and, secondly, that a criminal complaint has been lodged in the UAE asserting that the pursuit of the UK proceedings itself somehow amounts to a criminal offence. So far as I understand it, the allegation appears to be that the pursuit of these proceedings amounts to some sort of slander of title or allegation of defamation.

7. As to the first of these points, the service point, this is a refrain that has been raised repeatedly as an excuse for various acts of non-compliance by one or other of the defendants. In fact, the same point was made by Mr Almheiri himself in an email to the claimants’ solicitors on 4 September when they enquired whether he was intending to attend the consequentials hearing. Insofar as these are attempts to suggest that Mr Almheiri cannot be properly served otherwise than under the treaty, the point is hopeless in the light of Foxton J’s order permitting service by alternative means.

8. As to the second point raised, namely the criminal complaint lodged in the UAE, this again has been a point taken repeatedly by or on behalf of Mr Almheiri, including as a reason for his non-attendance at trial in May this year, when it was said that he would not take any action that might expose him to criminal liability as an accessory to a criminal offence in the UAE. However, he has never said that giving asset disclosure in compliance with the freezing order would itself expose him to any form of criminal liability, so it is not entirely clear where the point goes. In any event, it seems to me that there are two complete answers to it. First, as set out in Mr Trotter’s skeleton argument, the privilege against self-incrimination, which is expressly preserved in the freezing order, only protects the respondent against incrimination as regards criminal offences in the United Kingdom. It does not extend to potential prosecution abroad. Secondly, the criminal complaint lodged by Mr Almheiri was in any event dismissed on 16 July, notwithstanding OBH’s assertion on 8 October that it was still being investigated.

9. In short, I cannot accept either of these as a good reason not to proceed today. The consequences of the case proceeding in Mr Almheiri’s absence are clearly set out on the face of the application notice. I therefore hold that he has quite clearly waived his right to be present in the sense that he has been notified of those consequences but has nonetheless demonstrated that he is indifferent to them. Given the history of complete non-engagement by Mr Almheiri in the proceedings since January, there is no prospect that an adjournment would secure his attendance. Indeed, the only communications received in that period from either him or OBH serve only to confirm that he would not be participating.

10. It is impossible to discern any prejudice to Mr Almheiri in not being able to present his account of events since he has had every opportunity to address the issues in the underlying action, but was again found to have deliberately elected not to attend either the trial which took place in May or the consequentials hearing in September, and so far as concerns the contempt relied on in this application, he has not suggested that he has any account to present beyond that based on the UAE criminal complaint which I have addressed above. I note also that the worldwide freezing order was obtained following an on-notice hearing in which he participated through leading counsel.

11. The claimants, by contrast, have considerable interest in avoiding further delay. As Mr Trotter points out, Mr Almheiri’s failure to comply with the asset disclosure provisions in the freezing order mean that the claimants are unable to police the order effectively, with the result that the defendant is able to deal with his assets with almost complete impunity. That is a matter of particular prejudice to the claimants, as Ms Clifford pointed out, when they have outstanding costs orders for payment on account of £900,000, with the prospect of substantially more being awarded to them following detailed assessment. As matters stand, they are simply unable to identify any assets against which they might seek to enforce those orders.

12. Finally, there is of course a very significant public interest in dealing with contempt applications expeditiously, particularly where the alleged contempt concerns the breach of a court order. It goes without saying that the authority of court orders should be upheld and should be seen to be upheld. I discern no prejudice to the forensic process by continuing in the absence of Mr Almheiri. He has no obvious defence to the application and apparently no intention of putting one forward. For all these reasons, I consider it appropriate and fully in accordance with the overriding objective to proceed notwithstanding his absence. Committal

13. I turn then to the substance of the application and whether I should commit Mr Almheiri for contempt. In order to make a finding of contempt for breach of a court order – in this case, the freezing order made by Foxton J on 15 January – the Court must be satisfied: first, that Mr Almheiri knew the terms of the order; secondly, that he acted or failed to act in such a way as to breach that order; thirdly, that he knew the facts which made his conduct a breach. As I have said, the standard of proof in contempt proceedings is the criminal standard, which means that I must be satisfied of these three matters so that I am sure. I am so satisfied here.

14. Service: as I have held above, I am satisfied that Mr Almheiri was properly served with the freezing order and indeed read at least one of the WhatsApp messages by which it was brought to his attention. Moreover, he was represented by leading counsel at the hearing of the application for the freezing order and knew from the time judgment was handed down on 19 December that the application had been successful. Although the actual terms of the order were not finally settled at that date, it is clear from the evidence before me that drafts were subsequently exchanged and were under discussion and that he knew full well about the disclosure obligations that would be imposed on him, not least because correspondence from his counsel indicates that he was considering an appeal against the order and/or an application to stay the disclosure obligation specifically. Moreover, in the course of that correspondence, he was expressly warned by Foxton J in December 2024 that he should start preparing for disclosure in anticipation of the order which was in fact made on 15 January. It is therefore positively fanciful to suppose that he did not understand exactly what was required of him under the order.

15. As to breach, Mr Almheiri’s breach of the asset disclosure obligation is patent and flagrant. He has made no attempt at all to comply with the provisions of the order, despite being warned of the consequences. Moreover, notwithstanding his reliance on the criminal complaint lodged by him in the UAE as a reason for not attending the trial and consequentials hearing, he has never suggested in so many words that compliance with the English order would likewise amount to a criminal offence in the UAE such that he is not in breach or should be allowed some latitude. Even if this is an implicit argument that might have been raised on his behalf, the appropriate course would have been for him to apply to vary or discharge the order, but he has never sought to do this. In any event, it seems to me that the argument cannot survive the dismissal of the complaint in the UAE.

16. Moreover, the breach in failing to provide asset disclosure is part of a clear continuing pattern of conduct designed to obstruct and delay proceedings to the greatest possible extent. The following are merely examples: a. Mr Almheiri disengaged from the proceedings entirely after receipt of the draft freezing order. Indeed, his then-solicitors came off the record the day before the hearing at which the order was finalised. b. On 11 February, an email was received from some UAE lawyers who had apparently been approached but not instructed by Mr Almheiri, referring to the possibility of appointing English solicitors to come on the record. That never happened. c. Mr Almheiri did not attend the PTR. He failed to give disclosure in the action or to attend the trial which took place before Calver J. When he was asked shortly before trial to confirm whether he would be attending or not, he did not reply, but a few days before commencement of the trial the claimants received an email from OBH making the same two points about service of proceedings and the criminal complaint in the UAE. Both points were responded to by the claimants’ solicitors, but nothing further was received in reply. d. Following the judgment of Calver J and the grant by him of a worldwide anti-enforcement injunction, Mr Almheiri was invited to discontinue the BVI proceedings and release the undertakings given by the claimants. There was no response to this from Mr Almheiri, but Globe responded, referring again to the point about service and the UAE criminal complaint, and confirming that they would not comply with the anti-enforcement injunction until after the criminal investigation was complete. It seems that that investigation is now complete, but nonetheless there have still been no steps taken to discontinue the BVI proceedings.

17. I regard this behaviour as thoroughly disingenuous in the light of the defendant’s own affidavit made on oath in support of Globe’s asset disclosure, where he acknowledged the failure by Globe to give asset disclosure previously. He explained in that affidavit that he did not initially understand that English court orders were binding on foreign defendants and testified to his mistaken belief that the English court did not have jurisdiction over him. In the affidavit, however, he confirmed that he did now understand the position, and he apologised unreservedly. That affidavit was dated 20 May 2022, and it is unacceptable for him to be relying on the same points on his own behalf three years later. I give those points no credence whatsoever. This is not a genuine excuse. Rather, I find that it is a token and wholly inadequate fig leaf to avoid confessing to the reality, which is that he has no intention whatsoever of complying with any order unless he has absolutely no other option open to him.

18. Awareness of the facts constituting a breach: in the context of this case, the claimants must demonstrate that Mr Almheiri knew he had not given asset disclosure as required. One might say that this goes without saying. It is noteworthy that he has never sought to excuse his own non-compliance on any other basis or to apologise for his conduct. Given the above lamentable sequence of events, I regard this as contumacious behaviour on his part, and I have no hesitation in finding him to be in contempt. Sentence

19. For the reasons already given, I consider it appropriate to proceed immediately to sentence. The only purpose in not so doing would be to give the defendant a further opportunity to repent and comply with the order, even if belatedly. In the light of the matters referred to above, there is no prospect of that happening. It follows that no useful purpose would be served by adjourning the proceedings, and the overriding objective accordingly dictates that I should proceed to sentence.

20. Section 14(1) of the Contempt of Court Act prescribes a maximum prison sentence of two years. By virtue of s.258 of the Criminal Justice Act 2003 , a defendant committed to prison is to be released after serving half of his or her sentence. Any sentencing exercise should be approached in accordance with the guidelines set out in Liverpool Victoria Insurance Co Ltd v Khan & Ors [2019] EWCA Civ 392 ; [2019] 1 WLR 3833 , which have recently been endorsed by the Supreme Court in Attorney General v Crosland [2021] UKSC 15 as follows: a. First, I must consider the seriousness of Mr Almheiri’s conduct by reference to his culpability and the degree of harm caused or intended or likely to be caused by his breach. b. Next, I must consider whether, in the light of my determination of seriousness, a fine would be a sufficient penalty. If I conclude that only a custodial penalty will suffice, I must impose the shortest period of imprisonment which properly reflects the seriousness of the contempt. c. Due weight should be accorded to any mitigating factors, such as genuine remorse, and also to the impact of committal on third persons such as children and other family members. In appropriate cases, this may warrant the suspension of any custodial sentence. Early admission of the offence merits a reduction in sentence.

21. Submissions on sentence were made on behalf of the claimants by Ms Clifford. As she submitted, this is clearly an evaluative exercise which depends on the facts and circumstances of each case. However, a further useful checklist of factors to take into account is set out in Asia Islamic Trade Finance Fund Ltd v Drum Risk Management Limited & Ors [2015] EWHC 3748 (Comm) . I have taken all these into account.

22. In that case, the Court also points out that: a. Breach of a freezing order and its ancillary disclosure provisions is an attack on the administration of justice which usually merits immediate imprisonment for a not-insubstantial term; b. In the case of a continuing breach, a long sentence, even up to the maximum, may be appropriate to encourage future cooperation; c. It may be appropriate to indicate a portion of the sentence which the Court might consider remitting in the event of belated compliance.

23. It will immediately be apparent that there are no mitigating features in this case. Mr Almheiri has been given multiple opportunities to purge his contempt but has failed to do so. As stated, he has not offered any excuse or apology for his wholesale deliberate flouting of the Court’s order beyond an oblique reference to the criminal complaint in the UAE. As that has now been dismissed, there can be no excuse whatsoever for continued non-compliance with the freezing order.

24. Ms Clifford fairly, albeit in my view unnecessarily, drew attention to the defendant’s age, 66, as a factor which he could potentially deploy as a reason for not imposing a custodial sentence. I reject that suggestion. In the absence of any evidence to suggest that the defendant is infirm or in poor health, his age is no reason whatsoever for any leniency in his sentence, nor is there any evidence to suggest that committal to prison would adversely affect any third parties.

25. It is likewise irrelevant that Mr Almheiri is a foreign defendant resident abroad. Committal to prison is routinely imposed on defendants who are found to be in contempt, even if there is no prospect of the sentence being enforced unless and until they come to this country. As Whipple J, as she then was, said in VIS Trading Co Ltd v Nazarov & Ors [2015] EWHC 3327 (QB) , the Court cannot stand by in the face of disobedience to its orders just because the defendant is out of the jurisdiction. Moreover, the fact of the order being made may itself have reputational or business consequences, and it has the practical effect that a defendant cannot come to this country without risk of arrest. The order is therefore far from meaningless.

26. In the light of my conclusion that Mr Almheiri’s disregard of his obligations under the freezing order has been deliberate, persistent, and contumacious, I am satisfied that his conduct falls into the highest category of seriousness. The breach has caused and is causing tangible prejudice and harm to the claimants, since they are unable to police the freezing order effectively without disclosure. Moreover, in the absence of any disclosure of Mr Almheiri’s assets, they have been unable to enforce their existing costs orders against him. Those costs are only being increased by his abusive conduct, which requires them to spend further time and money in attempting to secure compliance, including, of course, the costs of having to pursue the present application.

27. Ms Clifford further invites me to take account of the following: a. The history of disregard for court orders in these proceedings shown by all the defendants. The first and third defendants were themselves sentenced to 24 and 21 months’ imprisonment for failure to comply with materially identical provisions in a worldwide freezing order made against them in 2022; b. Mr Almheiri’s longstanding history of obstructive behaviour in relation to the litigation, including non-engagement for lengthy periods followed by last-minute interventions, the making of hopeless applications and the presentation of misleading evidence; c. The failure to procure the discontinuance of the BVI Proceedings by the Globe defendants, notwithstanding Calver J’s judgment following trial and the worldwide anti-enforcement injunction that he imposed.

28. Standing back, this is a clear and deliberate breach of a court order and, as such, is deserving of condign punishment. There are no mitigating features. On the contrary, the contempt in this instance is but one part of a continuing pattern of contumacious and obstructive conduct on the part of Mr Almheiri.

29. In the circumstances, I conclude that the appropriate sentence is one of two years. I accept Ms Clifford’s submission that the maximum period is not necessarily reserved only for the most serious of cases. As the Court of Appeal stated in Financial Conduct Authority v McKendrick [2019] EWHA Civ 524, breach of a court order is inherently a serious matter. The maximum sentence available to the Court is relatively short, and it follows that there is therefore a comparatively broad range of conduct which can fairly be regarded as falling within the most serious category and justifying a sentence at or near the maximum. In my judgment, two years is the only sentence which adequately reflects the gravity of the defendant’s breaches and the seriousness of his conduct.

30. Nonetheless, since the primary objective of the claimants is to secure compliance with the order rather than to punish the defendant, I indicate that the Court would consider remitting six months of that sentence upon full and proper compliance with the asset disclosure provisions of the freezing order. The defendant is, of course, entitled under s.258 to unconditional release after serving half of any sentence.

31. I therefore impose a sentence of imprisonment of two years for the defendant’s contempt of court in failing to comply with the asset disclosure provisions in the order of Foxton J. ______________