Commercial Court confirms it has the power to require directors outside the jurisdiction to disclose a company’s assets

12/06/13

Cruz City 1 Mauritius Holdings v. Unitech Ltd [2013] EWHC 1323 (Comm)

Mr. Justice Field has confirmed that the English Courts may issue an injunction requiring directors and officers of a corporate Defendant to disclose that Defendant's worldwide assets, to assist in the enforcement of a judgment, even if they are not personally subject to the jurisdiction of the Court.

The Court considered the argument that such an injunction would circumvent the restriction laid down by the House of Lords in Masri v. Consolidated Contractors International (UK) Ltd (No. 4) [2009] UKHL 43; [2010] 1 AC 90 on the scope of CPR 71, which governs the Court's power to compel directors to attend the Court to give evidence regarding a Judgment debtor's assets. In Masri the House of Lords held that CPR 71 conferred no power to compel directors outside the jurisdiction to so attend, since they were not themselves Defendants and they were not otherwise within the Court's jurisdiction. Field J rejected the argument that an injunction requiring disclosure by a director of its company's assets under the general power conferred by s.37 of the Senior Courts Act 1981, on pain of committing a contempt of court if he or she did not comply, sought to achieve substantially the same result and therefore should not be ordered.

Field J also considered the Commercial Court's practice of granting permission as a matter of course for the alternative service of an arbitration claim form upon the solicitors acting for a party in arbitration proceedings. He confirmed that (a) a claim form seeking an injunction requiring the disclosure of a Defendant's assets, to assist in the enforcement of an arbitration award against that Defendant, constituted an arbitration claim form; and (b) the practice of permitting alternative service of such a claim form upon the solicitors that had acted for the Defendant in the arbitration should apply, notwithstanding that the arbitration had been concluded and the solicitors in question were in fact not instructed at the time of service.

The judgment is here.