Examination under Part 71 can take place by videolink

01/03/21

Njord Partners SMA-SEAL LP and ors v Astir Maritime Limited and ors

The High Court has rejected a flurry of attempts by a judgment debtor to set aside an Order under CPR Part 71 that he attend Court for examination about his assets and has clarified: (a) that there is nothing in CPR Part 71 that restricts “attendance at Court” to physical attendance, as opposed to attendance by videolink, and (b) that examination on oath pursuant to Part 71 by videolink from Dubai is not precluded by the Treaty between the United Kingdom and the United Arab Emirates on judicial assistance in civil and commercial matters dated the 7th December 2006.

The substantive proceedings concern claims brought by a group of lenders against a borrower and two of its principals, Tahir and Ali Lakhani.  The claimants bring claims in debt against the borrower, in deceit against the Lakanis and under a contract of personal guarantee against Tahir Lakhani.

The claimants obtained a worldwide freezing Order in April 2020. The WFO was recently upheld in a judgment of David Edwards QC of 18 December 2020 found at [2020] EWHC 3474 (Comm), following an application to discharge it by Ali Lakhani.

Summary judgment on the personal guarantee was obtained against Tahir Lakhani in the amount of $47,297,812.73 and the judgment creditor sought an Order under Part 71. Mr Lakhani is resident in Dubai and unable to travel to attend the hearing in person due to UAE restrictions imposed on his movements and the circumstances of the pandemic.

Mr Lakhani contended that Order under Part 71 that he attend Court via videolink should be set aside on the basis that it amounted to the compulsory taking of evidence within the UAE and as such could only be undertaken to pursuant to the judicial assistance procedures in the 2006 Treaty.

The Court (Master Kay QC) rejected Mr Lakhani’s arguments in a judgment handed down on 18 February 2021 and found at [2021] EWHC 369 (Comm). The Master held that Mr Lakhani’s application was hopeless in light of Masri (No.2) [2008] 1 All ER (Comm) 305 and Masri (No.4) [2010] 1 AC 90 and his failure to substantiate the contention that giving evidence to the English Court via videolink was prohibited by UAE domestic law.

Mr Lakhani lodged an urgent application for permission to appeal and for a stay on the ground that CPR Part 71 properly construed did not include attendance by videolink. This application was heard after hours on Friday 19 February 2021. At that hearing Mr Justice Waksman rejected the application for permission and refused a stay, with the result that the examination went ahead on Monday 22 February 2021 by videolink as ordered.

The case is the latest example of the Courts having to confront a novel point regarding the compatibility of remote hearings with the parties’ procedural and substantive rights. These issues have been brought to the fore in the pandemic and the judgment will be of interest to practitioners advising clients in other jurisdictions as to their position with regard to such hearings.

The Judgment of Master Kay is here.

The Judgment of David Edwards QC on the set aside application is here.