![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lakatamia Shipping Company Ltd & Ors v Su & Ors [2021] EWCA Civ 1187 (30 July 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1187.html Cite as: [2021] EWCA Civ 1187 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
![]() ![]() ![]() ![]() ![]() ![]() ![]() | ||
![]() |
COURT
OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT
OF JUSTICE
QUEEN'S BENCH DIVISIONCOMMERCIAL
COURT
Mr Justice Waksman
CL-2011-001058
![]() ![]() Strand, London, WC2A 2LL |
||
![]() |
B e f o r e :
LADY JUSTICE CARR
and
SIR NICHOLAS PATTEN
____________________
(1) ![]() ![]() ![]() ![]() ![]() ![]() |
Respondent/First Claimant |
|
(2) SLAGEN ![]() ![]() ![]() ![]() (3) KITION ![]() ![]() ![]() ![]() (4) POLYS HAJI-IOANNOU |
Second to Fourth Claimants |
|
- and - |
||
(1) NOBU ![]() ![]() ![]() ![]() |
Appellant/First Defendant |
|
(2) TMT ![]() ![]() (3) TMT ASIA LIMITED (4) TAIWAN MARITIME TRANSPORTATION ![]() ![]() (5) TMT ![]() ![]() (6) TMT ![]() ![]() (7) IRON MONGER I ![]() ![]() |
Second to Seventh Defendants |
____________________
Thomas Grant QC, Ryan James Turner and Rory Forsyth (instructed by Ashfords LLP) for the Appellant
Hearing date: 15 July 2021
____________________
VERSION
OF APPROVED JUDGMENT
SIR NICHOLAS PATTEN:
"The time during which the first of those orders should run should – and Mr. Prescott accepts this – be ofvery
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."
"40. The second point that is made by MrColeman
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. MrColeman'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 MrColeman
![]()
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 MrSu."
"11. Mr Underwood, I interpose, makes the same argument before me today. There are two problems with hissubmission.
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."
"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 juniorcounsel.
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."
"22. Nonetheless, Mr Underwood says that to the extent that there is utility, it has to be balanced against the interference with MrSu'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 MrSu
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 isconcerned.
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."
"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; Singhv
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 andcomparison
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 themselvessufficient.
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 orcommitted
![]()
support"
(see AU at [40]) or whether there is "the real existence in practice of close personal ties" (see Singh 1 at [20])."
"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 MrSu'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 avery
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."
Lady Justice Carr:
Lady Justice Asplin: