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IN THE
COURT
OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM THE HIGH
COURT
OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL
COURT
Mr
Justice Waksman
CL-2011-001058
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
30/07/ 2021 |
B e f o r e :
LADY JUSTICE ASPLIN
LADY JUSTICE CARR
and
SIR NICHOLAS PATTEN
____________________
Between:
|
(1) LAKATAMIA SHIPPING COMPANY LIMITED
|
Respondent/First Claimant
|
|
(2) SLAGEN SHIPPING COMPANY LIMITED (3) KITION SHIPPING COMPANY LIMITED (4) POLYS HAJI-IOANNOU
|
Second to Fourth Claimants
|
|
- and -
|
|
|
(1) NOBU SU (aka SU HSIN CHI; aka NOBU MORIMOTO)
|
Appellant/First Defendant
|
|
(2) TMT COMPANY LIMITED (3) TMT ASIA LIMITED (4) TAIWAN MARITIME TRANSPORTATION COMPANY LIMITED (5) TMT COMPANY LIMITED, PANAMA S.A. (6) TMT COMPANY LIMITED, LIBERIA (7) IRON MONGER I CO., LIMITED
|
Second to Seventh Defendants
|
____________________
Stephen Phillips QC and James Goudkamp (instructed by Hill Dickinson LLP) for the Respondent
Thomas Grant QC, Ryan James Turner and Rory Forsyth (instructed by Ashfords LLP) for the Appellant
Hearing date: 15 July
2021
____________________
HTML
VERSION
OF APPROVED JUDGMENT
____________________
Crown
Copyright
&
copy;
"
Covid-19
Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the
Courts
and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10.00am 30 July
2021."
SIR NICHOLAS PATTEN:
- On 5 November 2014 the Respondent to this appeal,
Lakatamia
Shipping
Company
Ltd
("
Lakatamia"),
obtained judgment in the
Commercial
Court
against the Appellant, Mr Nobu
Su
("Mr
Su"),
for a
sum
which with interest now exceeds $60m: see
Lakatamia
Shipping
Company
Ltd
v
Su
[2015] 1 WLR 216. Since then
very
little of the judgment debt has been recovered but
Lakatamia
has pursued Mr
Su
for the recovery of what is due and has made a series of applications in the
Commercial
Court
designed to obtain the disclosure of assets which are available to satisfy the judgment debt.
- Prior to the trial of the action Blair J made a worldwide freezing order against Mr
Su
and on 26 January 2018 Popplewell J granted an order on a without notice application which required Mr
Su
to
surrender
every passport and travel document that would enable him to leave the jurisdiction and which restrained him from leaving England and Wales until after he had attended
court
to give information about his means at a hearing under CPR 71 ("the Means Hearing"). The order also required Mr
Su
to disclose to the tipstaff the address where he intended to reside and an email address and telephone number. I shall refer to this is as a passport order.
- The
court
has jurisdiction to make a passport order under s. 37(1) of the Senior
Courts
Act 1981 but the grant of
such
relief is a relatively recent development along with freezing and search orders. The first reported decision
concerning
a passport order is that of the
Court
of Appeal in Bayer A.G.
v
Winter [1986] 1 WLR 497 where the defendant was ordered to deliver up his passport and restrained from leaving the jurisdiction until disclosure had been given relating to
counterfeit
copies
of the claimant's products. It was clear that if the defendant was allowed to leave the jurisdiction before disclosure took place there was a serious risk that the order for disclosure would be frustrated.
- In his judgment at p.503C Fox LJ stressed that the relief sought was novel and that when exercising the jurisdiction to make an order under s. 37 on the basis that it appeared to be "just and
convenient"
to do so the
court
needed to keep firmly in mind the
consequences
for the defendant of having his liberty curtailed in this way:
"The time during which the first of those orders should run should – and Mr. Prescott accepts this – be of
very
limited duration. It is an interference with the liberty of the
subject,
so that the period should be no longer than is necessary to enable the plaintiffs to serve the Mareva and Anton Piller orders which they have obtained, and endeavour to obtain from the defendant the information which is referred to in those orders."
- Even with this safeguard in place the jurisdiction is not unlimited. Imprisonment is no longer available as a remedy for the non-payment of debts and it is
common
ground that the passport order jurisdiction cannot be used as a means of enforcing judgments by requiring the judgment debtor to remain within the jurisdiction and to reside in a particular place until the judgment debt is paid. In B
v
B (Injunction: Jurisdiction) [1998] 1 WLR 329 Wilson J refused to make a passport order restraining a husband who was resident overseas from leaving the jurisdiction until a
costs
order against him had been satisfied. That, he said, would
convert
the passport order from an aid to the
court's
established procedures for enforcing the judgment and make it a freestanding enforcement procedure in its own right.
- The interference with the liberty of the respondent under a passport order must therefore be for no longer than is necessary to achieve the purpose for which it was granted. How long that actually is will necessarily depend upon the purpose for which it is granted. Most passport orders are granted (as in Bayer A.G.
v
Winter) to enable effective disclosure to be given and in the present case the passport order was limited in duration to the Means Hearing. But in many
commercial
cases involving foreign defendants the disclosure sought will be
voluminous
and
complex
and the time taken to bring on an effective hearing may be lengthy. The judge making the order will need to take into account the effect which being restrained from leaving the jurisdiction will have on a foreign defendant whose home and family life is abroad and to ensure that the terms and
conditions
of the order are proportionate. How that balance is to be achieved will
vary
depending on the facts and circumstances of each particular case.
- The facts of the present case are by any standards extraordinary. More than 3 years after the passport order was made Mr
Su
remains
subject
to the injunction. His position is
complicated
by the fact that he has been found to have been in
contempt
as a result of breaching
various
interlocutory orders and he is currently in prison having been sentenced to a further term of 24 months in July of this year. The examination as to his means has been extended to a second hearing due to his failure to make full and
complete
disclosure of his assets at the original Means Hearing in February 2019. It is anticipated that this second hearing will take place in September when Mr
Su
will almost certainly still be in prison. The passport order (as
subsequently
continued
and
varied)
now expires on 31 July unless extended.
Lakatamia
has yet to decide whether to make
such
an application.
- Mr
Su's
appeal is against an order of Waksman J dated 21 January
2021
when he refused Mr
Su's
application to discharge his earlier order of 30 January 2020 under which Mr
Su
was restrained from leaving the jurisdiction until after the second Means Hearing. The principal ground for the application to discharge was that Mr
Su's
entry
visa
had expired so that he had become an overstayer and was therefore
committing
a criminal offence under s. 24 of the Immigration Act 1971. The judge had rejected this argument at the 30 January 2020 hearing and declined to revisit his decision on the point. But he also dismissed an argument that he should discharge his earlier order on account of the time which had elapsed since the
continuation
of the passport order on 30 January.
- In the original grounds of appeal for which permission was obtained from Males LJ Mr
Su
contends
that Waksman J's order of 21 January
2021
infringed Article 8 of the European
Convention
on Human Rights and was not in accordance with the law because it required him to
commit
the criminal offence of remaining in the UK without leave. But at the start of the hearing we granted permission to amend the grounds of appeal by adding two further grounds: (1) that the judge erred in treating the passage of time since his first order as legally irrelevant and therefore not a basis on which he
could
or should reconsider or discharge the passport order; and (2) that the judge had failed to follow general equitable principles in
considering
whether or not to discharge the order.
- The position of
Lakatamia,
put
very
shortly, is that the judge was right to reject the arguments based on a breach of s. 24 of the Immigration Act or of Mr
Su's
Article 8 rights for the reasons which he gave. On the delay point they say that Mr
Su
is entirely responsible for their inability to have an effective Means Hearing any sooner and that the last 3 years have been characterised by repeated breaches of disclosure orders which themselves have resulted in Mr
Su
being
committed
to prison for
contempt.
Although a period of 3 years is exceptional and undesirable they say that it is justified on the facts of the present case.
- Before turning to the grounds of appeal I need to set out in more detail some of the procedural history following the grant of the passport order.
- On 10 January 2019 Mr
Su
arrived at Heathrow Airport en route to Germany and was served with the passports order. He
surrendered
his passport but gave police
constables
who served him with the passport order on behalf of the topstaff the name of a hotel which was different from where he in fact stayed and the number of a mobile telephone which was not working. Mr
Su
then travelled to Liverpool on 15 January where he attempted to board a ferry to Belfast but was arrested. The following day he appeared in
court
and was released
subject
to daily reporting requirements pending the Means Hearing.
- This took place on 27 and 28 February 2019. One result of the hearing was to obtain
confirmation
from Mr
Su
that he either owned or had an interest in two properties in Monaco (the
Villa
Rignon and the
Villa
Royan) which had been sold for a net
sum
of €32m and their proceeds dissipated in breach of the worldwide freezing order. Mr
Su's
evidence was that the monies had been sent to his mother in Taiwan.
- On 29 March 2019 Mr
Su
was
committed
to prison for a term of 21 months by Sir Michael Burton for
various
breaches of both the freezing order and the passport order. Sir Michael Burton found that Mr
Su
has dissipated the proceeds of sale of the Monaco properties; had failed to make proper disclosure of his assets in accordance with the freezing order and a
subsequent
order of Bryan J dated 16 January 2019; and had taken steps to attempt to flee the jurisdiction in breach of the passport order. Paragraphs 8 and 9 of the passport order and paragraphs 13 and 14 of the order of Bryan J required Mr
Su
to make disclosure of a
variety
of documents that might assist
Lakatamia's
solicitors to obtain further information and disclosure about the existing whereabouts of other assets belonging to him. Sir Michael Burton found that
very
few of these documents had been disclosed as ordered and despite the time allowed for
compliance
the breach of the orders was deliberate. He said that it was the most serious case of financial breach that he had experienced and that there was no reasonable or other excuse for what Mr
Su
had done.
- An attempt by Mr
Su
to appeal against the
committal
order was rejected by the
Court
of Appeal as being out of time but on 4 November 2019 Mr
Su
applied for his early release from prison on the basis that he had purged his
contempt.
Most of the material relied on by Mr
Su
was in fact an attempt to challenge the findings made by Sir Michael Burton about his ownership of the Monaco properties. But the judgment debt remained unpaid and no offer had been made to make a
substantial
payment on account. The application was rejected by Jacobs J who said that Mr
Su's
behaviour was indicative of someone who was more inclined to obstruct than to help and that there needed to be positive action by him towards the payment of the judgment debt.
- On 30 January 2020 Waksman J directed that two pending
committal
applications against Mr
Su
should be heard together in the week
commencing
10 February 2020. The applications related to a failure by Mr
Su
to sign
various
bank mandates pursuant to an order of His Honour Judge Pelling QC made on 27 November 2019 and the non-disclosure of three New York apartments which were said to belong to Mr
Su.
The date of 10 February was chosen because Mr
Su
was due to be released from prison on or soon after 12 February after having served half of the 21-month term imposed by Sir Michael Burton in March 2019. The judge also heard an application by
Lakatamia
for Mr
Su
to be cross examined about his assets pursuant to CPR 71.2. Although one
such
hearing had already taken place as I have mentioned in February 2019, the rules do not exclude further hearings if the circumstances justify it. Further evidence in the form of witness statements from Mr
Su's
mother indicated that the net proceeds of the Monaco properties had been transferred by her to a
company
called UP
Shipping
which she said was owned and
controlled
by Mr
Su
and that a
substantial
part of the €27m had then been transferred to another
company
called Blue Diamond Sea Transport Limited. This information had prompted the order for the signing of the bank mandates which Mr
Su
had not yet
complied
with.
- One effect of the examination of means carried out in February 2019 was that the passport order had expired so that on release from prison in February 2020 Mr
Su
would be free to leave the jurisdiction. As part of its renewed CPR 71.2 application
Lakatamia
therefore sought an order restraining Mr
Su
from leaving the jurisdiction until after he had attended the second Means Hearing. Waksman J made an order in those terms on 30 January 2020 and directed that the
confiscation
of his passports should
continue.
Mr
Su
was also to keep the tipstaff informed of his place of residence and of an email address and telephone number through which he
could
be
contacted.
The judge said that because of Mr
Su's
previous non-
compliance
with the disclosure order much less information had been obtained that would have been expected and that further disclosure and examination was justified particularly in relation to the transfers of money from the sale of the Monaco properties. The judge directed
Lakatamia
to arrange for the second Means Hearing to take place as soon as reasonably practicable.
- At the hearing a Mckenzie friend (Mr
Coleman)
who assisted Mr
Su
made the
submission
to Waksman J that Mr
Su
had been admitted to the
country
on a 3-month
visa
which had long expired so that he was now
committing
a criminal offence by remaining in the jurisdiction. He also
submitted
that Mr
Su
had been in prison long enough. The judge said:
"40. The second point that is made by Mr
Coleman
is that on the basis that Mr
Su
came here with a three-month
visa
only, being a non-national of this
country,
he is an overstayer now and he is
committing
an offence. We have not had the opportunity to investigate all of the provisions on the Immigration Acts, but I do know that there are many circumstances in which those who have
come
here can be detained prior to removal or deportation or are otherwise
subject
to
court
orders, and for my part I think it is extremely unlikely that there would be any risk of prosecution in the circumstances either, which is the present case, where Mr
Su
is in fact overstaying but in prison, or if I were to make any
such
order, an order that actually prevents him from leaving the jurisdiction. So I do not think that there is anything in that point.
41. Mr
Coleman's
third point is that,
supposing
he was released and there was no further period of imprisonment, he cannot work because he is an overstayer without a right to be here, he cannot have access to healthcare and benefits and so on. That may be so but, as I have indicated, he has had the financial wherewithal to instruct leading and junior
counsel
as well, and if he was out of prison I do not think for a moment it would be beyond his wit to obtain funding, bearing in mind that when he first came here, according to the police, he was destined straight for the Dorchester, and that his credit card statements show a fairly lavish lifestyle. So there is nothing in that point either.
42. The final point made by Mr
Coleman
concerns
the overall justice of the case which is that he has spent enough time in prison now and should go home and be allowed to go home. However that begs a
very
large number of questions, given the way in which he has acted before and given the fact that, through no fault of their own, the claimants have been hampered in their perfectly legitimate attempts to gain information about his assets by the way in which Mr
Su
has deliberately
conducted
himself.
43. I am quite satisfied in those circumstances that this is a case (and, if it needs to be exceptional, it is, for the reasons I have given exceptional) that there should indeed be a further examination of Mr
Su."
- There was no appeal against the order of 30 January and it was followed by a number of further applications by
Lakatamia.
On 11 February 2020 Mr
Su
was
committed
to prison for a further 4 months by Sir Michael Burton for
contempt
based on the non-disclosure of the New York apartments and his failure to sign the bank mandates. On 25 March Butcher J adjourned the second Means Hearing which had been listed for 31 March. Mr
Su
appears to have
consented
to the adjournment on the basis that the hearing
could
not be effective because
Lakatamia
was still pursuing
various
applications to obtain more information about his asset position. Then on 9 April 2020 Mr
Su
was released from prison having served half of the 4-month sentence.
- On 26 March Foxton J had made further orders without notice designed to give
Lakatamia
access to information stored electronically
subject
to a review of the material for privilege and relevance by an independent lawyer. On the return date Mr
Su
applied to purge the
contempt
for which he was
committed
by Sir Michael Burton on 11 February but this application was dismissed by the judge. Foxton J affirmed his orders of 26 March and
continued
the passport order made by Waksman J on 30 January. By now
Lakatamia
was pursuing a third
committal
application based in part on Mr
Su's
failure to disclose an interest in a property in Tokyo. The judge noted that the application to purge his
contempt
was not based on any act of
contrition
on the part of Mr
Su
but rather on his
concern
that he might become infected with
Covid-19
if he remained in prison. In terms of Mr
Su's
willingness to
comply
with the orders of the
court
nothing had changed.
- On 17 June 2020 Andrew Baker J made a search order based on what was alleged to be Mr
Su's
persistent failure to make full disclosure in accordance with the earlier orders against him. This was executed on 18 June 2020 at the apartment in London where Mr
Su
was staying and resulted in the disclosure of some 800,000 documents stored electronically which were then reviewed by the independent lawyers appointed under the terms of the search order to preserve any available claims of privilege. The search order was
continued
by Foxton J on 2 July 2020.
- On 8 July 2020 Mr
Su
was declared bankrupt on his own application. This is achieved by an online application without any form of judicial
consideration
or intervention but it did have the effect of
vesting
the administration of Mr
Su's
estate in the hands of his trustee in bankruptcy and of
converting
the judgment in favour of
Lakatamia
into a right to prove in the bankruptcy. This therefore impacted on the listing of the second Means Hearing.
Lakatamia
applied to have the bankruptcy order annulled on the basis that there was no jurisdiction to make the order because Mr
Su's
presence within the jurisdiction was involuntary and did not therefore satisfy the residence requirement
contained
in s. 263I of the Insolvency Act 1986. But the position about the bankruptcy remained unresolved until the bankruptcy order was eventually annulled (
subject
to the issue of the trustees'
costs
and expenses) by Bacon J on 1 July
2021.
- In the meantime
Lakatamia
had applied in November 2020 for the hearing of the second Means Hearing to be expedited precisely because they were
concerned
about the time which had elapsed since the making of the original passport order.
Surprisingly
in the light of what is now his second ground of appeal this was in fact resisted by Mr
Su
but on 14 December 2020 he issued his own application to
vary
or discharge the passport order granted on 30 January 2020. It was this application that was dismissed by Waksman J on 21 January
2021
and which is the
subject
of the present appeal.
- On 21 December
Cockerill
J
varied
the order so as to require Mr
Su
to report to Charing Cross Police Station twice a week rather than daily.
- The application of 14 December 2020 sought the discharge of the passport order granted by Waksman J on 30 January on the basis that it was no longer required to enable a fair means assessment to take place. Mr
Su
made a witness statement dated 14 December 2020 in which he set out the procedural history. Following his release from prison in April 2020 he had gone to live in a flat in Maida
Vale
which is owned by Mr Robert McKendrick with whom he had shared a cell in Pentonville Prison whilst they were both serving their sentences imposed for
contempt.
There are
comments
in other documents about the flat being small and squalid. What Mr
Su
says in his witness statement is that the flat has
very
little in it and is like a prison. He has to report daily to the Police under the terms of the passport order and is
concerned
about catching
Covid-19.
As an overstayer he cannot work or seek education and has no right to use the NHS. The flat is the
subject
of possession proceedings brought by Mr McKendrick's mortgagees and Mr
Su
is
concerned
that he may soon become homeless.
- More generally he says that he has not been able to spend time with his friends in Japan and elsewhere outside the UK or to play or teach tennis which is one of his principal pleasures. He has had, he says, no physical
contact
with his mother who is elderly and frail and whom he loves although he
concedes
that he does not have a particularly good relationship with her. He has also not been able to see his children.
- In his judgment Waksman J set out the relevant procedural history including the hearing on 30 January 2020 when Mr
Coleman
had raised the issue about Mr
Su's
immigration status and the
commission
of a criminal offence. He said:
"11. Mr Underwood, I interpose, makes the same argument before me today. There are two problems with his
submission.
First of all, nothing has changed in respect of that argument since the time it was first made. It is not open to him to make that argument. I have already decided it, and there was no appeal in relation to my first order. In any event, although Mr Underwood
submits
with force that every day Mr
Su
is here he is
committing
a criminal offence, I do
consider
that I am entitled to look at the practicalities because if Mr Underwood is right and is
suggesting,
as he faintly did at one point, that my original order might have been unlawful, then any stay in prison after he was an overstayer would equally be unlawful. That is a most
surprising
proposition and it only needs to be stated to be rejected. On that basis there is nothing in the deportation point now, as there was nothing in it then."
- He then turned to
consider
the other
consequences
of Mr
Su
being an overstayer and his ability to improve his accommodation:
"12. Let me go on to some more paragraphs. It was said that, because he is an overstayer without a right to be here he cannot have access to healthcare and benefits. That might be so but he has had the financial wherewithal to instruct leading and junior
counsel.
If he was out of prison I do not think for a moment it is beyond his wit to obtain funding, bearing in mind when he first came here he was destined to go to the Dorchester. Again, the passage of time does not affect that argument which also is made by Mr Underwood now. So there is really no basis on which I need to reconsider it, but equally now as then, Mr
Su
has had the wherewithal to instruct solicitors and instruct leading
counsel.
The epithet "squalid" may have been applied to his flat but, beyond that, he is not now
suggesting
there is anything specific about his living accommodation which makes it impossible for him to stay where he is even if he is not entitled to take a tenancy properly in his own name and, equally, so far as access to healthcare is
concerned,
first, it is not
suggested
for a moment that the present order is unlimited; it is tied to a means hearing so it will
come
to an end at some point, absent some further application; secondly, there is no evidence put before me of any particular medical
condition
which requires immediate attention, or any underlying
condition."
- The judge then rejected the
submission
that the passport order was no longer required in order for there to be an effective Means Hearing. He referred to Mr
Su's
previous attempts to flee the jurisdiction and to his
various
breaches of the disclosure orders. He rejected the
suggestion
that nothing further was likely to
come
out of the Means Hearing. The disclosure of the 800,000 documents would, he said, give
Lakatamia's
representatives a serious opportunity of obtaining specific answers about specific assets even if only the minority of documents might on examination prove relevant. The second Means Hearing would, he said, have real utility and there was no guarantee that Mr
Su
would attend the hearing remotely if allowed to leave the jurisdiction.
- Turning to the grounds of appeal Mr Grant QC (who, with Mr Turner and Mr Forsyth, did not appear below) on behalf of Mr
Su
does not challenge the judge's assessment that his client is a flight risk and might refuse to participate in a remote hearing. Nor does he challenge the
various
breaches of the disclosure orders which have occurred. The first ground of appeal
concentrates
on the judge's treatment of Mr
Su's
Article 8 rights which the judge, he says, was bound to
consider
in deciding whether or not to allow the passport order to
continue.
Even if he was right to reject the challenge based on s. 24 of the Immigration Act the judge was nevertheless bound to carry out a thorough and exacting proportionality review in relation to the impact of the
continuation
of the order on Mr
Su's
Article 8 rights.
- There is no real doubt that Article 8 will often be engaged by an order of this kind. In the case of a foreign national resident abroad there is an immediate and obvious impact on that person's ability to
continue
his normal family and private life which has to be justified.
- The judge said:
"22. Nonetheless, Mr Underwood says that to the extent that there is utility, it has to be balanced against the interference with Mr
Su's
rights. Some of those matter I have dealt with, namely the question of being an over stayer and the question of access to services and the question of where he was living.
23. There are some other points which Mr
Su
mentioned in his evidence, although Mr Underwood did not deal with them specifically. It is said that, because he cannot work, he has to sit around. But he will not have to sit around forever because this means hearing is going to
come
on as soon as I can practically fix it.
24. It is said that he had a particularly unpleasant experience in prison, and I do not gainsay that, but that is not the situation that we are facing now so far as this restraining order is
concerned.
It is true that there is a third
committal
application, but if that is made out then that is simply because of the defaults which he knowingly made at the time and in those circumstances I do not see how that is relevant to the application which is before me.
25. It is said that his rights to see his children and his elderly mother, although he does not seem to have always had a good relationship with her, are affected. All of that is true they were just as true when the matter was brought before me back in January of last year."
- It is
correct
to say that the judge regarded the position of Mr
Su's
family and private life as being largely unchanged since he first
considered
them on 30 January 2020. The only material change in circumstances was, he said, the passage of a further 12 months since that hearing. His review of the impact of the
continuation
of the passport order on these matters was therefore by reference to his earlier decision. But I do not accept that he failed to carry out a proportionality review. It is apparent from his judgment that he did take into account the evidence
contained
in Mr
Su's
witness statement and the impact which the
continuation
of the order would have. But that evidence was
very
limited and his
view
was that the personal
consequences
of the
continuation
of the passport order were overstated and were in any event outweighed by the need for an effective second Means Hearing which
could
only be guaranteed by the
continuation
of the order.
- This
court
can only interfere with an assessment of this kind if it can be shown that the judge took into account immaterial factors; failed to take into account material factors; or erred in principle: see Assicurazioni Generali SpA
v
Arab Insurance Group (Practice Note) [2003] 1 WLR 577. The judge had the
content
of Mr
Su's
witness statement
very
much in mind in deciding whether the adverse effect on Mr
Su
on
continuing
the passport order outweighed the need to ensure that there was an effective Means Hearing. But he was entitled on the evidence to
consider
that Mr
Su's
lack of access to NHS facilities or to employment was of little or no material effect on someone who has significant assets at his disposal and can afford to litigate at
considerable
personal expense. The absence of personal
contact
with his mother and family are of
course
concerning
but in an Article 8
context
Mr
Su's
evidence falls short of establishing that either his mother or his children were part of his family life within the meaning of the
Convention.
In her judgment in Mobeen
v
SSHD [
2021]
EWCA
Civ
886 Carr LJ said:
"44. The relevant principles relating to family life in the case of adults have been explored in a line of well-known authorities including Kugathas; Singh
v
ECO New Delhi [2004]
EWCA
Civ
1075 ("Singh 1"); ZB (Pakistan)
v
SSHD [2009]
EWCA
Civ
834 ("ZB"); Singh
v
SSHD [2015]
EWCA
Civ
630 ("Singh 2"); Britcits; AU
v
SSHD [2020]
EWCA
Civ
338 ("AU"). The position can be
summarised
as follows.
45. Whether or not family life exists is a fact-sensitive enquiry which requires a careful assessment of all the relevant facts in the round. Thus it is important not to be overly prescriptive as to what is required and
comparison
with the outcomes on the facts in different cases is unlikely to be of any material assistance.
46. However, the case law establishes clearly that love and affection between family members are not of themselves
sufficient.
There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the
substance
and not the form of the relationship(s) that matters. The existence of effective, real or
committed
support
is an indicator of family life.
Co-habitation
is generally a strong pointer towards the existence of family life. The extent and nature of any
support
from other family members will be relevant, as will the existence of any relevant cultural or social traditions. Indeed, in a case where the focus is on the parent, the issue is the extent of the dependency of the older relative on the younger ones in the UK and whether or not that dependency creates something more than the normal emotional ties.
47. The ultimate question has been described as being whether or not this is a case of "effective, real or
committed
support"
(see AU at [40]) or whether there is "the real existence in practice of close personal ties" (see Singh 1 at [20])."
- The evidence set out in Mr
Su's
witness statement was insufficient in its detail to enable the judge to find the existence of the
support
or close personal ties referred to in the authorities and the evidence in relation to Mr
Su's
mother in fact points away from there being
such
a relationship. Given that Mr
Su
did not provide the material which
could
have
supported
a claim to a family life with his mother and children the judge cannot be criticised for his treatment of the evidence which was relied upon.
- The other aspect of ground 1 which also informs the outcome of ground 3 is the argument that the passport order has the effect of
compelling
or causing Mr
Su
to
commit
a criminal offence under s. 24 of the Immigration Act 1971 by remaining in the UK without a current
visa.
Mr Grant
submits
that the jurisdiction under s. 37 cannot be used in a way which leads inevitably to the
commission
of a criminal offence and that it was not lawful for Waksman J to
continue
the passport order once Mr
Su's
visa
had expired.
- At one level of generality it is obviously
correct
that the
consequences
of being restrained from leaving the jurisdiction including the possibility of
committing
an immigration offence are highly material for a judge to
consider
when deciding whether to make a passport order particularly when the
consequences
for the defendant may include a further sentence of imprisonment. But I am not
convinced
that the judge was faced with this issue in
such
stark terms. Quite apart from the passport order Mr
Su
has been
confined
to the jurisdiction for significant periods of time by the terms of imprisonment imposed on him for
contempt.
As things stand today he remains in prison having been sentenced to a further term of 24 months for
contempt
on 7 July. It is far from clear that Mr
Su
will face any further penalties by reason of the expiry of his
visa.
The Secretary of State has a residual discretion to grant leave to remain outside the Immigration Rules: see s. 1(2) of the Immigration Act 1971 and the Home Office guidance note on Discretionary Leave published on 27 May
2021.
The power is exercisable where there are "exceptional circumstances" and as Mr Phillips QC
submitted,
the
compulsory
retention within the jurisdiction of a foreign national under an order of the
court
may
very
likely qualify as
such.
Mr
Su
has yet to make
such
an application but until he does and until it is refused the judge was I think entitled to take the
view
that there are unlikely to be any criminal
consequences
resulting from the
continuation
of the passport order.
- That leaves the second ground of appeal which is that the judge treated the additional period of time between the making of the first and second orders as legally irrelevant. Mr Grant
contends
that Waksman J approached the matter on the basis that the mere passage of time between the two orders was not a material change of circumstances that might justify the
variation
or discharge of the earlier order. I think that this is a misreading of his judgment. The judge dealt with this issue in paragraphs 27 to 28 of his judgment as follows:
"27. Now, as against all of that, one has to then address the fundamental objection to this application in principle, which is that, in truth, the only change of circumstance has been passage of time, and the only reason we are where we are is because of Mr
Su's
serial defaults. That is plainly
correct.
If he had given full disclosure to begin with there would not be a need for a disclosure order. If matters were held up while he was in prison, well, he should not have broken the orders that led him to be
committed
in the first place and then, importantly, while it is true that
Lakatamia
in September told the
court
because, apart from anything else, they were aware of the fact that there was a
continuing
restraint order, that they needed a delay to process the documents, again, that delay would not have happened if the documents had been produced by Mr
Su
in the first place. When they did intimate a delay, there was no objection to it at that stage, on the basis of the restraint order. When they were in a position that they would go ahead with the Means Hearing and sought an expedited hearing precisely because there was the underlying restraint order, Mr
Su's
response to that was to say that it was not urgent. If he had agreed to that, this matter may not have been heard by now, but it certainly would have been fixed by now.
28. So that objection really goes to the heart of the application. It would be a
very
odd situation if, essentially, because of his own series of defaults, it is now open to Mr
Su
to
complain
that effectively he has been kept in this jurisdiction too long, the passage of time being, as I say, in essence, the only material change of circumstances."
- It seems to me that the judge did regard the passage of time as material but treated the delay as largely, if not exclusively, attributable to the
conduct
of Mr
Su.
In
support
of the appeal Mr Grant has not sought to argue that in the face of Mr
Su's
repeated breaches of the disclosure orders
Lakatamia
could
have progressed the second Means Hearing more rapidly than they have in fact done. It is obvious that Mr
Su
has steadfastly refused to
comply
with the orders for disclosure and has deliberately
concealed
information about his assets. The protracted steps taken by
Lakatamia
to deal with this kind of
conduct
are entirely due to Mr
Su's
own behaviour.
- The judge was therefore faced with an argument that notwithstanding Mr
Su's
responsibility for the delay the point had been reached when because of the time that had passed since the making of the original passport order and even since the order of 30 January 2020, the interests of justice
could
only be served by discharging the order.
- Mr Grant is quite right to emphasise that under the guidance given by this
court
in Bayer A.G.
v
Winter a passport order should be of
very
limited duration given the interference with the liberty of the
subject
which is involved. But where the delay is caused by the defendant refusing to
comply
with the orders and the process which the passport order is designed to facilitate, an acceptance that after a particular length of time the order should be discharged would enable determined
contemnors
like Mr
Su
to benefit from their own misconduct.
- It is not necessary, nor I think possible, for us in this case to lay down any definitive guidance as to the maximum possible duration of a passport order. The jurisdiction to grant and
continue
such
orders involves the active exercise of a judicial discretion which must take account of all the relevant circumstances in deciding whether the
continuation
or extension of the order is justified. It goes without saying that the longer the order remains in place, the greater will be the onus on the applicant to justify its
continuation.
But the
court
is also entitled to protect its own process and to take a realistic
view
about the
conduct
and evidence of parties
such
as Mr
Su
who may think that the hardship imposed by the order is a small price to pay for the non-disclosure of his assets.
- In the present circumstances of this case where directions had been given for a second Means Hearing as soon as reasonably practicable and there was an expectation that an effective hearing
could
take place within the next few months the judge was I think entitled to take the
view
that it was just and
convenient
to
continue
the passport order until that hearing took place. Although the length of time taken to reach this stage is exceptional the process has been managed both judicially and I think proportionately in the light of Mr
Su's
extraordinary resistance to any order which the
court
makes. There was in my
view
no error of principle in the judge's reasoning.
- For those reasons I would therefore dismiss the appeal.
Lady Justice Carr:
- I agree. For the reasons set out by Sir Nicholas Patten, the appeal is without merit. Whilst Mr Grant managed to persuade me at the
commencement
of the hearing that the appeal was not wholly academic (because of Mr
Su's
outstanding attempt to appeal against the most recent custodial sentence imposed on him), it is nevertheless difficult to see what practical purpose the appeal serves in circumstances where i) the passport order expires at the end of this month and ii) Mr
Su
is currently in prison, where on any
view he will remain for the months ahead. It is imperative that the second Means Hearing now proceeds swiftly and effectively so that this aspect of the litigation at least can be put to rest.
Lady Justice Asplin:
- I agree.
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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2021/1187.html