First published by Appleby

In Deutsche Bank v. Sebastian Holdings [2014] EWHC 112 Cooke J noted that “service is a different concept from notice and whilst a prime purpose of service is to bring the issue of proceedings to the attention of the defendant, there is more to it than that because it is the formal act which engages the Court’s jurisdiction in respect of a defendant. The limits to that principle were considered by the Court of Appeal of the Eastern Caribbean Supreme Court in Rogalskiy v. JSC MCC Eurochem BVIHCMAPP2017/0007.

The Applicants sought to obtain an order for the cross-examination of the deponent of an asset disclosure affidavit, served pursuant to a worldwide freezing order. Prior to issuing that application, the Applicants had sought to obtain an order for the appointment of sequestrators over the Respondent’s assets. Following the service of the asset disclosure affidavit, the Applicant invited the Court to adjourn its own application for the appointment of sequestrators to enable the use of that material on the later committal application.

The application for permission to cross-examine the Respondent was duly issued. At first instance, the Respondent argued that a cross-examination order was not appropriate either as a matter of jurisdiction, or discretion. As to discretion, the Respondent argued that the Applicant had foreshadowed an intention to make use of that disclosure in committal proceedings – thus turning on its head the principle that an alleged contemnor could not be forced to give evidence against himself. In addition, an order on the facts of the case would be disproportionate, and was not intended to achieve any permissible purpose (i.e. the identification of assets), but was a collateral exercise in attempting to prove a contempt and to cross-examine on the merits of the underlying claims. The Respondent also submitted that the Court had no jurisdiction to make a cross-examination order against a person outside of the jurisdiction of the Court.

At first instance, the Judge considered that the power to cross-examine a foreign defendant was an incident of the Court’s inherent jurisdiction to make its orders effective, and that the power to direct cross-examination arose by virtue of CPR 30.1 after an affidavit had been filed (whether or not under compulsion).

The following day, the Court then considered consequential matters. The Respondent submitted that the orders sought by the Applicant exposed the vice inherent in the cross-examination order made the day before. The Applicant invited the Court to direct either that the Respondent, a Russian citizen, should travel to the BVI (which would require him to apply for a visa for that purpose), or to attend at a particular address in Moscow. The Respondent submitted that the latter was akin to issuing a witness summons out of the jurisdiction, which would infringe the sovereignty of the Russian Federation, particularly where the Applicant had taken no steps to obtain consular assistance. The advice of the Foreign & Commonwealth Office was later that such an order would be inappropriate if consular assistance was not sought.

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