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Cite as: [2009] EWCA Civ 202

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Neutral Citation Number: [2009] EWCA Civ 202
Case No: B4/2008/0622; B4/2008/1794

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Briggs)
AND ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(Her Honour Judge Marshall QC)
Claim No: CHY05352

[2008] EWHC 623 (Ch)

Royal Courts of Justice
Strand, London, WC2A 2LL
18/03/2009

B e f o r e :

LORD JUSTICE WALL
LORD JUSTICE RIMER
and
LORD JUSTICE AIKENS

____________________

Between:
FOLASHADE RASHIDA MOMSON
Respondent
- and -

DAUDA ABIODUN AZEEZ
Appellant

____________________

(Transcript of the Handed Down Judgment of
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____________________

Mr Philip Flower (instructed by John & Co) for the Appellant/Defendant
Mr Simon Buckhaven (instructed by Haider Kennedy) for the Respondent/Claimant
Hearing date: 27 January 2009

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Rimer :

    Introduction

  1. This appeal by the defendant, Dauda Abiodun Azeez, is against an order of Briggs J dated 7 March 2008 dismissing his appeal against an order of 29 January 2007 made by Her Honour Judge Marshall QC in the Central London County Court. By that order Judge Marshall refused to relieve Mr Azeez from a debarring order preventing him from defending and counterclaiming in an action the trial of which was due to start on the same day. The debarring order was the consequence of Mr Azeez's non-compliance with an order made by His Honour Judge Cowell on 9 January 2007. The claimant (respondent to the appeal) is Folashade Rashida Momson. Having refused relief against the debarring order, Judge Marshall proceeded with the trial and, as followed, she heard only Ms Momson's case. At the conclusion of the trial she made an order dated 30 January 2007 reflecting substantial success by Ms Momson. If Briggs J was wrong to uphold Judge Marshall's refusal to grant relief against the debarring order, it will follow that her order of 30 Janaury 2007 must be set aside so that there can be a re-trial. There is also before us an application for permission to appeal against that order, which I will deal with after dealing with the appeal.
  2. This is, therefore, a second appeal. Although Judge Marshall gave a fully reasoned decision, Briggs J observed that, in doing so, she did not expressly refer to CPR Part 3.9, let alone engage in a systematic review of the Part 3.9 factors. Whilst he thought it probable that she had silently considered them, he decided that he could not be satisfied that she had in fact done so and he held it followed that her exercise of discretion could not be said to be unchallengeable. He therefore carried out afresh the discretionary exercise that was before Judge Marshall, considered the Part 3.9 factors specifically and, having done so, came to the same conclusion that she had. It has not been suggested that Briggs J was wrong to exercise the discretion afresh. The question for us is therefore not whether Judge Marshall's reasoning justified her decision but rather whether Briggs J's reasoning justified his decision to uphold it. Unlike in most second appeals, the focus of the argument has therefore been on the reasons for the intermediate decision rather than those for the original one.
  3. The issues in the claim

  4. We have the benefit of Judge Marshall's extempore judgment delivered after the trial on 30 January 2007. We must, however, put it out of our minds. The relevant question that was before Judge Marshall, and is now before us, is whether on the morning of 29 January 2007 immediately before the trial it was or was not just to relieve Mr Azeez from the bar preventing his further defending and counterclaiming. Subsequent events were and are not relevant in answering that question. What was of primary relevance was the nature of the issues in the claim.
  5. Ms Momson's claim, commenced on 27 July 2005 as a Part 8 claim in Croydon County Court in 2005 but promptly transferred to the Central London County Court and converted to a Part 7 claim, was for a declaration that she had a beneficial interest in several properties owned by Mr Azeez. She served Particulars of Claim on 3 March 2006. The essence of her case was as follows.
  6. Both Ms Momson and Mr Azeez were of Nigerian origin. She was a nurse, he a school caretaker and part-time mini-cab driver. She had come to the United Kingdom from the USA in 1987 following the death of her partner, the father of her two daughters then aged 4 years and 6 months. The three of them lived in a Housing Association flat in Rotherhithe at a rent of about 50 a week. Ms Momson and Mr Azeez met in July 1989 and from then until 24 September 2004, when he left her, they lived as man and wife. In 1989 Mr Azeez was living at 19 Hansler Road in East Dulwich, which he had bought two years earlier. In July 1989, having promised to marry Ms Momson (which he never did), he moved into her Rotherhithe flat leaving Hansler Road empty. Their four children were born in 1990, 1992, 1996 and 1999. Mr Azeez acquired British Citizenship in about 1995 and Ms Momson was given indefinite leave to remain here on 2 January 1996.
  7. Paragraph 5 of the Particulars of Claim reads:
  8. "In 1993 soon after the birth of the Parties second child, the Parties agreed to purchase a relatively modest property which they could then do up with a view ultimately to renting it out. With this in mind 38 Furley Road, London SE15 was purchased in about September 1993 with the aid of a mortgage from the Woolwich in the joint names of the Parties and a direct contribution of 4,000 from the Claimant (raised by the sale of the Claimant's Powergen shares). It was at all times the common intention of both Parties that this would be a jointly owned property."
  9. Paragraph 6 pleaded that, following its purchase, the parties refurbished and renovated Furley Road and then, in 1994, let each of its four bedrooms at a monthly rent of 300. Paragraph 7 was as follows:
  10. "Not long following the purchase of [Furley Road] the parties thereafter embarked on the purchase, repair and refurbishment of further properties, a list of which is set out below, using initially the rental income which each of the properties in turn produced as each in turn was redecorated, repaired and refurbished and rented out, save for the property at 43 Wearside Road in Lewisham which having been fully refurbished and redecorated, was sold. All of the properties subsequent to [Furley Road], although acquired in the sole name of the Defendant, were properties which the Parties at all times regarded as jointly owned (as the Defendant would often say) and part of the joint enterprise of acquiring a portfolio of properties in respect of which the Claimant and her daughters spent many weeks cleaning, repairing, redecorating, and helping refurbish and thereafter following their letting, help maintain. As part of this common intention and understanding, it was the Claimant who was responsible for and would pay for all the outgoings on the home including the food, leaving the Defendant free to use his monies on the acquisition of the various properties."

    Paragraph 7 then listed 11 properties in south east London, including Hansler Road (bought by Mr Azeez before Ms Momson met him) and Furley Road (the only one of the 11 that was bought in joint names).

  11. The list does not include the Wearside Road property, which Ms Momson dealt with in paragraph 9. She said that in December 1997 it was also bought in Mr Azeez's sole name although "it was as with all the other acquisitions at all times understood and intended as a joint acquisition between the Claimant and the Defendant as was stated explicitly by the Defendant." She said that she and her daughters helped refurbish it, after which it was sold for about 163,000. She said she would provide further particulars of the purchase and sale after disclosure and claimed that Mr Azeez had kept the entire net proceeds of sale. In paragraph 10 she pleaded that, following discussions with and encouragement from her, he used the proceeds to buy land and build two large houses in Nigeria, one in Lagos and one in Ibadan. She said he had also used the Wearside proceeds to furnish them and had kept all the rental income from them.
  12. In paragraphs 11 and 12, Ms Momson pleaded that, when in 1995 she was seeking indefinite leave to remain here, she was told that she would need written confirmation from Mr Azeez that they lived together and that he was the father of their children. She said he refused to provide this unless she signed a statement which he knew to be untrue -- that she had made no financial contribution to the purchase of Furley Road and had no intention of claiming ownership of it. She says she signed such a statement under "severe pressure" from him but he refused to provide any confirmation of cohabitation or paternity. In paragraph 15, she said that in 2001 he asked her to attend a firm of solicitors to sign some documents which she did. He had since taunted her that Furley Road no longer belonged to her and she assumed that the documents transferred its ownership solely to him. She asserted that he had procured their signing by fraud and coercion and that he knew that, despite any ostensible transfer of ownership, she still had the same beneficial interest in Furley Road.
  13. In paragraph 16 Ms Momson said that in 1998 the family moved to Hansler Road and that she paid for and undertook works of refurbishment to it "on the clear understanding as had always been made clear to her that everything owned by the Parties in whosever name it was, belonged to them jointly and equally." That did not, however, apply to a property at Watcombe Road. In paragraph 18, she said that (at Mr Azeez's insistence) that property was also purchased in joint names even though she paid the entire acquisition costs as well as providing all post-acquisition funding. Watcombe Road's mortgagee later obtained a possession order and a judgment for some 118,000.
  14. In paragraph 20 Ms Momson claimed a "joint and equal beneficial interest" in Furley Road, in the ten other properties listed in paragraph 7 and in the two Nigerian properties: the claim was "on the basis of a clear and unambiguous understanding between them upon which they both acted." She claimed a declaration that she was the sole beneficial owner of Watcombe Road.
  15. Mr Azeez's Defence and Counterclaim, served on 6 July 2006, denied the central allegations. His case was as follows. He bought Furley Road in 1993 as an investment property for himself, there was never an intention that Ms Momson should have an interest in it and it was put in joint names solely to assist her application to remain in the United Kingdom. She signed a document in July 1993 denying that she contributed to it financially or had any intention of claiming an interest in it. He denied that she made any financial contribution to its purchase and said it was he who had put up 4,000 odd towards the purchase. He denied that she helped refurbish it and said it did not need refurbishment: he let it to students within a month of buying it. He denied that she was to have any interest in the other properties she had listed in her paragraph 7 (all bought in his sole name), denied there was any common intention to this effect and denied she paid the outgoings on their home. He claimed to have paid all the household bills save that in about 2002 Ms Momson said she wanted the utility bills in her name. The electricity account was then switched to her name and she paid the bills.
  16. Mr Azeez said he alone provided the money for the purchase of Wearside Road and there was no intention that Ms Momson should have an interest in it. The purchase money came from the proceeds of his Powergen shares and a bank loan to him. The property required extensive refurbishment which was carried out professionally, not by Ms Momson, it cost about 80,000, and he paid for it with money he raised on bank loans. None of Wearside Road's proceeds was used to buy the houses in Nigeria. He had owned the Lagos house since before meeting Ms Momson. The Ibadan house was his parents' house, was now owned by Mr Azeez and his siblings and was occupied by his sister.
  17. Mr Azeez admitted that Ms Momson signed documents transferring Furley Road into his sole name but said she was independently advised on that by solicitors and knew what she was doing. He admitted the move to Hansler Road, but denied it was in poor repair; and although various works were carried out in 2003, it was carried out by builders whom he paid. He denied Ms Momson was to have a beneficial interest in the property.
  18. As for Watcombe Road, Mr Azeez said that they bought it in joint names with a 100% mortgage and agreed that they should own it in equal shares. Their relationship was deteriorating and it was for occupation by Ms Momson and her children. She did not, however, move in and so it was let. She collected the rent, which was intended to be applied in paying the mortgage instalments but she failed so to apply it.
  19. Mr Azeez claimed to be the sole legal and beneficial owner of all the properties referred to by Ms Momson in her paragraph 7, of Wearside Road and of the Lagos property. He said that he and his siblings jointly owned the Ibadan property. By his counterclaim, he sought a declaration that he and Ms Momson had owned Watcombe Road beneficially n equal shares.
  20. The course of the proceedings

  21. A case management conference was held on 11 August 2006. Mr Azeez represented himself. Directions were given for disclosure by 8 September, witness statements by 6 October and a trial check list by 20 October. Thereafter there was to be a pre-trial review for a five-day trial fixed to start on 29 January 2007. On 16 August the court served notice of the pre-trial review date (15 December) and of the trial date.
  22. Mr Azeez's list of documents was served on 8 September and Ms Momson's on 15 September. On 16 October Burtonwoods, solicitors, wrote on Mr Azeez's behalf that they were not on the record for him, that they believed he was in Nigeria and was due to return by the end of October and that he did not intend to file any further evidence. The only witness statement he had served was dated 19 October 2005. Also in October Ms Momson made a CPR Part 18 request for further disclosure and information. It was not answered. On 24 October Mr Azeez was adjudicated bankrupt following his failure to pay a school fees bill. He did not inform Ms Momson or the court of this.
  23. In October and November Ms Momson served seven witness statements. On 2 November there was an unsuccessful mediation. On 14 November: (i) Ms Momson's solicitors, Haider Kennedy, wrote to Mr Azeez saying they were preparing for the trial commencing on 29 January 2007; and (ii) Burtonwoods wrote to Mr Azeez saying that as they had heard nothing from him, they did not regard themselves as instructed by him. On 18 November Mr Azeez wrote to the court asking for the pre-trial review to be deferred from 15 December to a date after 10 January 2007. His explanation was that:
  24. "I have entered into Nigeria politics and the primary election of my party to determine the candidates for election in April 2007 is in December 2006. I need to spend some time in Nigeria now and in December 2006 for political campaign for party primary election.
    My solicitor has moved from her firm to another firm. I need to look for new solicitor. I may not have someone to represent me for 15th December 2006 hearing [the pre-trial review]. I have bought my flight ticket, I am going to Nigeria on the 19th November 2006, and I want to come back after the 10th January 2007 if it's possible."

    It does not appear that there was a response to that. Mr Azeez could not, and apparently did not, assume that his request had been granted. On the same day he wrote a "to whom it may concern" letter saying he had authorised his son to arrange for a solicitor to represent him at the pre-trial review on 15 December and at the trial on 29 January 2007. On 19 November he travelled to Nigeria. On 21 November Burtonwoods wrote to Haider Kennedy saying they were no longer instructed by him.

  25. The pre-trial review went ahead on 15 December before Judge Marshall. Mr Azeez was in Nigeria. He was represented by Samuel Ross & Co, solicitors. He had not by then fully complied with the directions made at the earlier case management conference. Although he had given some disclosure, it was accepted that it was inadequate; and no pre-trial check list had been delivered. The outcome of the hearing was a consent order in the following terms:
  26. "1. That the Defendant do provide the disclosures set out in List A attached herewith by 4 pm 12th January 2007; compliance with paragraph 1 of the List however to be effected by the Defendant providing to the Claimant's Solicitors by 4 pm 22nd December 2006 a Letter of Authority to his named Conveyancing Solicitors, to supply to the Claimant's Solicitors, the Conveyancing files in respect of those properties listed under paragraph 1 of List A together with any independent files relating to the re-mortgage or sale of the properties.
    2. That the Claimant do Reply to the Defendant's Part 18 Request for Further Information by 4 pm 22 December 2006.
    3. Costs in the application."
  27. List A listed: (1) conveyancing files relating to 11 disputed properties, including any independent files relating to their re-mortgage or sale; (2) bank, building society or credit card statements showing personal funding of the acquisitions of such properties, and bank or building society statements showing banking of rental income from them from 1998 to date; (3) a schedule of annual rental receipts and mortgage payments and other outgoings in respect of the let properties together with supporting documentation; (4) in respect of each property which had been re-mortgaged, setting out in a schedule: (i) the amount of additional funds raised and (ii) the use made of such additional funds; (5) copies of Mr Azeez's passports for the period 1998 to 2005; and (6) the completion statement in respect of the sale of Wearside Road and bank/building society statements showing receipt of the sale proceeds and their use.
  28. Items (1), (2), (5) and (6) in List A were in the nature of disclosure orders; items (3) and (4) required the provision of information. The scheme of the order was that: (i) Mr Azeez was to give the disclosure of the paragraph (1) files by 12 January 2007, with that disclosure to be effected by an authority to be given to his conveyancing solicitors by no later than 22 December 2006 authorising them to supply Ms Momson's solicitors with the files themselves; (ii) Mr Azeez was himself to give and provide by 12 January 2007 the other disclosure and information prescribed by List A; and (iii) he was to answer Ms Momson's Part 18 request by 22 December 2006.
  29. Mr Azeez failed by 22 December to give the required authority to his conveyancing solicitors or to answer the request. That led to Ms Momson's application on 3 January 2007 for an "unless" order. The evidence in support included the assertion that at the hearing of the pre-trial review Mr Idris of Samuel Ross had assured the court that he was able to contact Mr Azeez in Nigeria and would do so early the following week. The evidence asserted that:
  30. "The provision of the conveyancing files in respect of the various properties listed in List A and the provision of a full response are crucial to the case in which the claimant claims a joint and equal beneficial interest in the properties, all of which (save for originally two and subsequently one) are in the defendant's sole name. It is important to trace the acquisition of the various properties by the remortgage of the original properties.
    Although time is short (bearing in mind the proximity of the hearing date), it is believed that it would be possible for the case to be prepared in time for a contested hearing so long as the defendant complies with the time limits provided."
  31. The application came before His Honour Judge Cowell on the papers on 9 January 2007. He made the following order:
  32. "1. Unless by 4 pm on Friday 12 January 2007 the Defendant
    (i) provides to the Claimant's solicitors a letter of authority addressed to the relevant conveyancing solicitors authorising them to supply to the Claimant's solicitors the Conveyancing files listed under paragraph 1 of list A attached to the Consent Order made on 15 December 2006 together with any independent files relating to the re-mortgage or sale of any of those properties listed therein; and
    (ii) gives disclosure of the documents specified in paragraphs 2, 5 and 6 of the said list A; and
    (iii) provides to the Claimant's solicitors the Schedules mentioned in paragraphs 3 and 4 of the said list A
    the Defendant be barred from defending this claim and from pursuing his Counterclaim.
    2. Any party affected by this Order is entitled to apply to have this Order set aside varied or stayed and any such application must be made within 7 days of service upon him or her."
  33. That order was on 9 January sent by fax to Samuel Ross & Co and was also left at two addresses Mr Azeez had provided for service. He made no application within the seven day period provided by paragraph 2 to have the order set aside, varied or stayed. However, by a notice dated 16 January (the day after his return from Nigeria), which he filed the following day but did not serve, Mr Azeez sought both a variation of the consent order of 15 December 2006 and also the setting aside of Ms Momson's application for the "unless" order. I understand his proposed variation to have been (i) to extend to 22 January his time for giving the required letters of authority to his solicitors; and (ii) instead of authorising his solicitors simply to supply the conveyancing files to Ms Momson's solicitors, to authorise them to permit those solicitors to inspect and copy them. His reason for the latter change was because he was worried that otherwise original documents might get lost. His evidence in support said that he was in Nigeria on 19 November 2006 and returned on 15 January 2007. He said he could not:
  34. " return back on time from Nigeria because I was sick over there. Because of poor communication problems between Nigeria and the UK, I was not able to receive the full details of the orders made by the court."

    He explained that he had been made the subject of a bankruptcy order.

  35. By a letter of 17 January, faxed to Haider Kennedy on the following day, Mr Azees also informed them of the bankruptcy order. He inquired whether they were still willing to act for Ms Momson under a CFA. On 21 January he provided letters of authority addressed to three firms of solicitors permitting Haider Kennedy to inspect and copy the conveyancing files. Quite apart from being about a month late, those letters anyway did not comply with the requirements of the consent order; and when Haider Kennedy contacted the firms, they were told that the firms would require payment in order to search for and take the files out of archive. The result was that no disclosure was given in accordance with the terms of the consent order or at all. Having learnt of Mr Azeez's bankruptcy, Haider Kennedy contacted his trustee and notified him of the forthcoming trial, to which the trustee replied that Mr Azeez had applied to annul his bankruptcy on the grounds that he had paid the bankruptcy debt in full, his annulment application being due to be heard on 1 March. In those circumstances, the trustee did not intend to attend the trial on 29 January.
  36. On 29 January Mr Azeez attended court in person. The court was told of the bankruptcy and that the bankruptcy debt had been paid. Mr Azeez did not ask for an adjournment for legal representation. He sought further time within which to comply with the consent order of 15 December 2006, which he also sought to have varied. He sought a variation of Judge Cowell's order. He said he had been unable to return to the United Kingdom before 15 January because he had been ill and had not been made aware of the various orders until his return. He produced a medical report purporting to be from Dr Taiwo of Lagos State University Teaching Hospital. It said that Mr Azeez had been detained in hospital from 17 to 26 December 2006 complaining of "fever, general body ache and headache", a diagnosis of malarial fever being made; and again from 4 to 12 January 2007, with "history dizziness, persistent Headache, vomitting [sic]", a diagnosis of typhoid fever being made.
  37. Since Mr Azeez was out of time for complying with Judge Cowell's "unless" order, Judge Marshall treated his application as one for relief from the debarring sanction it imposed. Having heard his representations, Judge Marshall gave her reasons for refusing to grant any relief. To do so would involve adjourning the trial and there was no excuse for Mr Azeez's failure to comply with the consent and "unless" orders. The fact of his bankruptcy played no part in her reasoning. She then proceeded with the trial over the remainder of 29 and 30 January, which inevitably involved hearing only Ms Momson's case, being one untested by cross-examination although it was subject to questioning by the judge.
  38. The appeals to the High Court

  39. Mr Azeez's bankruptcy was annulled on 1 March 2007. He sought the High Court's permission to appeal against Judge Cowell's order of 9 January 2007 and Judge Marshall's two orders of 29 and 30 January 2007. Any appeal against the last order lay only to the Court of Appeal, but it was open to the High Court, if it gave permission (as it did, as well as extending time for appealing), to hear the first two appeals. Mr Azeez's grounds of appeal, dated 22 March 2007 and prepared by Gans & Co, solicitors, placed emphasis on his claimed illness and hospitalisation in Lagos in December and January, his illnesses causing him to stay in Nigeria longer than he had intended. The point made was that, had Judge Cowell known this, he would not have made the "unless" order; and it was wrong also of Judge Marshall not to have extended time for compliance with that order.
  40. Investigations into Mr Azeez's hospitalisation claim carried out by Haider Kennedy led to Shuja Haider making a witness statement on 31 January 2008 asserting, with the support of evidence from the hospital, that the medical report of 12 January 2007 was a forgery and that Mr Azeez had been neither an in-patient nor an out-patient there. Ms Momson relied on that to mount a case that Mr Azeez had sought to deceive the court and should not be heard on his appeal. I say no more about that assertion than that its factual basis has not been tested and there has been no finding on it. It was to have been the subject of inquiry before Briggs J but as he concluded that he could dispose of Mr Azeez's appeal on grounds that did not require him to decide it, he did not do so. Mr Buckhaven, for Ms Momson, has not, however, let it drop and during the lead up to the hearing of the appeal he invited this court to hear evidence on the matter and decide it. We have not, however, done that and following a direction by Thorpe LJ, nor have the parties expected us to. We have dealt with the appeal simply by considering whether Briggs J was right or wrong on the basis of the reasons he gave. If he was right, that is the end of the matter and the appeal will be dismissed. If we were to conclude that he was wrong, it would be necessary for this matter to be investigated before ruling finally on the appeal and we would have given directions for that.
  41. I come to Briggs J's judgment, delivered on 7 March 2008. It was typically clear and thorough. Mr Azeez was represented before him by Mr Orme and Ms Momson by Mr Buckhaven. Briggs J dismissed the appeal against Judge Cowell's order and as there is no appeal against that part of his decision, I say no more about it. As for Judge Marshall's order, he pointed out, as I have said, that she did not expressly refer to CPR Part 3.9, nor did she expressly consider its various factors, although he recognised that her considerable experience was such that she probably did have them in mind and that her reasoning showed how she would have answered most of the factors. As, however, Judge Marshall had made no express reference to Part 3.9, he concluded that her exercise of discretion could not be regarded as unchallengeable and so he exercised afresh his own discretion. Having carried out a review of each of the Part 3.9 factors, Briggs J expressed his conclusion as follows:
  42. "27. In the result, having balanced all those considerations together and having in mind throughout the overriding objective that cases should be tried justly and fairly, in my judgment the balance comes firmly against granting relief from sanctions to [Mr Azeez]. In my judgment Judge Marshall was correct to conclude that [Mr Azeez] prevaricated and dragged his heels to try to delay, hinder and avoid [Ms Momson's] claim. He was, in my judgment, truly the author of his own misfortune and it is not an injustice that a person who has conducted himself in that way in advance of a long pre-arranged trial finds himself debarred from defending proceedings, when the consequence of that conduct is that he has failed to provide essential disclosure of documents ahead of trial."

    The appeal to this court

  43. Wilson LJ refused permission on the papers but on an oral renewal of the permission application Arden and Wall L.JJ permitted Mr Azeez to appeal on three grounds. The first was whether the judge was plainly wrong by saying in paragraph [23] of his judgment:
  44. " The trial without the defendant's proper disclosure of documents, but with the defendant being permitted to defend and give oral evidence, would have been manifestly unfair to the claimant. The defendant had custody of most of the documents."

    The second was whether the judge was required by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") or any other reason to consider whether a debarring order was proportionate. The third was whether the judge was required to consider not just the factors in CPR Part 3.9 but to look at the case in the round.

  45. For Mr Azeez, the focus of Mr Flower's argument was on the first ground. The essence of his submission was that neither Judge Marshall nor Briggs J had given sufficient consideration as to whether, despite Mr Azeez's admitted non-compliance with his disclosure obligations under the consent and "unless" orders, a fair trial was still possible. The issue in the case was as to the parties' respective beneficial interests in the properties in dispute. The pleadings showed that Ms Momson's case was essentially based on what she and Mr Azeez had intended their respective beneficial interests to be; and her case was also largely dependent on her claimed contribution to the properties by way of the provision of her personal labour. Her case was that they had always agreed that the beneficial interests in the properties were to be equal and that she had made contributions to the acquisitions sufficient to establish the common intention constructive trust that she was advancing. There was also an issue as to whether her alleged documentary disclaimer of any interest in Furley Road was induced by undue influence or other pressure. All these questions were ones of fact that would turn on the oral evidence. The documents and other material required to be disclosed and produced by Mr Azeez in compliance with the consent and "unless" orders were unlikely to be of assistance to the court in ascertaining the veracity of her case. Mr Flower conceded that the omission to produce the documents would or might prejudice Ms Momson in her pleaded case that she had contributed 4,000 from the sale of her Powergen shares to the purchase of Furley Road. But otherwise he said that the omission to produce them would at most prejudice Mr Azeez's own case because they would have enabled him to disprove her claims. That might have meant that the judge at trial would have to draw adverse inferences against Mr Azeez's case. That, however, was no reason why there could not have been a fair trial of the issues. Mr Flower also recognised that if Ms Momson had established her claim to an interest in the Wearside Road property, the absence of documentation would have prevented her from proving her claim to an interest in the Nigerian properties, which she said had been bought and furnished with the proceeds of sale of Wearside Road. But he said that the court could have directed all necessary accounts and inquiries with a view to dealing with that claim.
  46. On the face of Ms Momson's statement of case, there is at least something to be said for the view that (save with regard to the purchase of Furley Road and the Nigerian properties) it is not obvious that the extensive documentation required by the consent and "unless" orders were going to be directly relevant to the bulk of what she set out to prove. But Mr Buckhaven explained to us, as he had to Briggs J, how in practice the Furley Road file was the key to the claim because it was through the increase in the mortgage loans secured on Furley Road that the purchase of the subsequent properties was enabled. The Furley Road and other property files would have shown how the purchases were all financed and the Furley Road file would also have been relevant to the issue of whether Ms Momson obtained independent advice when signing the document purportedly relinquishing her interest in that property. The bank statements sought would have shown how the proceeds of Wearside Road were applied and were of direct relevance to the proof of Ms Momson's claim in respect of the Nigerian properties. Moreover Mr Orme, counsel for Mr Azeez, had made no submission to Briggs J that the disclosure required by the consent and "unless" orders was not required for the purposes of a fair trial of the issues between the parties. He implicitly accepted before Briggs J that it was so required. That was hardly surprising bearing in mind that Mr Azeez had consented to the disclosure of all the considerable documentation that Ms Momson had sought. It hardly lay in his mouth to say that in fact none of it was required at all. The evidence in support of the application for the "unless" order reflected the importance that Ms Momson was attaching to the documentation.
  47. In my judgment, as the disclosure of the specified documents was accepted before Briggs J as necessary for the fair trial of Ms Momson's various claims, it is not now open to this court to take a different view of the facts and conclude that Briggs J was other than entitled to make the finding that he did in paragraph [23] that a trial without that disclosure "would have been manifestly unfair to [Ms Momson]." I consider that there is no substance in the first ground of appeal.
  48. The second ground of appeal raised the question as to whether Briggs J was required by Article 6 of the Convention (or otherwise) to consider whether the debarring order was proportionate. Mr Flower accepted that if (contrary to his primary submission) Briggs J was right to conclude that, without the ordered disclosure, a fair trial for Ms Momson was not possible, his decision could not be challenged on the basis that it was not compliant with Article 6. He conceded that the refusal of a court to grant relief against a debarring sanction will not contravene Article 6 provided that such refusal is proportionate and is for a legitimate purpose. That concession was based on paragraph 161 in Arden LJ's judgment (with which Sir William Aldous and Ward LJ agreed) in Stolzenburg and Others v. CIBC Mellon Trust Co Ltd and Others [2004] EWCA Civ 827:
  49. "Article 6 of the Convention requires attention to be addressed to a matter which has always been implicit in cases of this kind, namely that the effect of the court's refusal to grant relief is that the losing party will be deprived of a trial of his defence on the merits. Clearly, as the judge recognized, this is an important factor. But three points must be borne in mind. Third, the state can impose restrictions on the right of access to the court provided that the restrictions serve a legitimate aim, are proportionate and do not destroy the very essence of the right. Here, the legitimate aim in imposing a sanction is to secure compliance with court orders, which in the instant case were made to ensure the effectiveness of freezing orders. The imposition of a sanction is proportionate if it is reasonably necessary for achieving that aim. The essence of the right of access to court is not destroyed because the litigant has the opportunity to seek relief against the sanctions. The refusal of that relief is Convention-compliant if the same tests are satisfied. Proportionality will be satisfied if the overriding objective is met. The essence of the right will not be destroyed even if refused, since the appellants always had the chance to comply with the court orders and to help progress the case to trial."
  50. In the present case the documents and information required to be disclosed under the consent order were required in order that there could be a fair trial of the issues between Ms Momson and Mr Azeez. Mr Azeez consented to their disclosure and tacitly recognised their importance. The "unless" order imposed the sanction it did because he had failed to comply with his obligations and, unless he did so, a fair trial would not be possible. He was given a further opportunity to comply with them and he had every opportunity of doing so right down to 29 January 2007. He did nothing to that end. The sanction had the legitimate purpose of requiring him to comply with an order of the court that had been made with a view to achieving a fair trial. Having decided that Mr Azeez's non-compliance with the order meant that a fair trial was not possible, Briggs J's conclusion in his paragraph [27] was that a balancing of all the Part 3.9 factors and a consideration also of the overriding objective that cases should be tried justly and fairly required a decision that Mr Azeez should not have been granted any relief against the sanction. In my judgment that conclusion was Convention compliant. Any other conclusion would mean that litigants could with impunity avoid compliance with court orders made for the purpose of the holding of a fair trial.
  51. The final ground of appeal was whether Briggs J was required to consider not just the factors in CPR Part 3.9 but to look at the case in the round. This ground finds its origin in paragraphs 154 and 155 of Arden LJ's judgment in Stolzenburg to the effect that, when performing the sort of exercise that Briggs J was, it is not sufficient simply to go through the Part 3.9 factors and add up the score of either side on each point. The purpose of Part 3.9 is to produce "structured decision-making"; and, in addition to going through the Part 3.9 factors, the court has to consider any other circumstances that need to be taken into account and then to stand back and assess whether it is in accordance with the overriding objective to lift the sanction. As Arden LJ put it, "This overall 'look see' is simply the overriding objective in action."
  52. We had no separate argument from Mr Flower on this ground. That was, in my judgment, well advised because I regard it as apparent that in his full and careful judgment Briggs J did look at the matter in the round. Having done so, he exercised his discretion by holding that he should not lift the sanction. He was entitled so to conclude. There is nothing in the third ground of appeal.
  53. It follows in my judgment that there is no basis for a successful challenge to Briggs J's order dismissing Mr Azeez's appeal against Judge Marshall's order of 29 January 2007. I would dismiss the appeal.
  54. The application for permission to appeal Judge Marshall's order of 30 January 2007

  55. There remains the pending application for permission to appeal against Judge Marshall's order of 30 January 2007. Mr Flower did not address any oral argument on that to us although we have the benefit of his written argument, to the effect that, had we allowed the appeal against Briggs J's order, we would have had to allow the appeal against Judge Marshall's order of 30 January 2007. No other arguable ground of challenge to Judge Marshall's order has been advanced. As I would dismiss the appeal against Briggs J's order, I would also refuse permission to appeal against Judge Marshall's order of 30 January 2007 and lift the stay currently in force against its execution.
  56. Result

  57. I would dismiss the appeal against Briggs J's order of 7 March 2008, refuse permission to appeal against Judge Marshall's order of 30 January 2007 and lift the stay currently in force against the execution of the latter order.
  58. Lord Justice Aikens :

  59. I agree.
  60. Lord Justice Wall :

  61. I also agree.


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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/202.html