The Commercial Court has given an important judgment on the law of contempt in Deutsche Bank’s long-running litigation with billionaire businessman Alexander Vik and his corporate vehicle, Sebastian Holdings Inc.
Deutsche Bank is seeking to commit Mr Vik for breaches of a CPR 71.2 order that required him to attend for cross-examination and provide information and documents about Sebastian Holdings’ means to pay the US$243 million judgment Deutsche Bank obtained against it in 2013. Deutsche Bank made an application to amend its committal application to further particularise its allegations of contempt and narrow the scope of the application. In response, Mr Vik sought to strike-out Deutsche Bank’s committal application on three grounds: (i) Deutsche Bank’s alleged failure to particularise its allegations of contempt; (ii) alleged abuses of process by Deutsche Bank in bringing the committal application against Mr Vik; and (iii) insofar as the committal application was based on allegations Mr Vik lied under oath, that there were no reasonable grounds for the application and the Court’s permission was required to be, but had not been, obtained to prosecute these contempts.
In a Judgment handed down on 21 December 2020, Mrs Justice Cockerill allowed Deutsche Bank’s amendments and dismissed Mr Vik’s strike-out application on all three grounds. The Judgment provides detailed guidance on committal applications and the effect of the new CPR Part 81.
As regards particularisation, the Judgment clarifies that the requirement to provide “details of the alleged acts of contempt” in the old CPR Part 81, and to provide “a brief summary of the facts” in the revised CPR Part 81, entails “an identification of the type of contempt alleged (breach of order etc) and then a short summary sufficient to enable the respondent to understand and to respond” [106]. The Judge held that Deutsche Bank’s committal application was sufficiently particularised and that, even if it had not been, the amendment application ought to be allowed to cure any lack of particularity.
As regards abuse of process, Mr Vik alleged that the committal application infringed his right to silence because the amendments took into account evidence that Mr Vik had not yet deployed and the application was brought too late, was oppressive and was defective even with the proposed amendments. The Judge rejected Mr Vik’s contention that there was any abuse of process but, to protect Mr Vik’s right to silence, required that the committal application be revised so as not to refer to any evidence Mr Vik had not yet elected to deploy in his defence.
Finally, as regards Deutsche Bank’s allegations that Mr Vik lied under oath at the CPR 71.2 hearing, the Judge held that the revised CPR Part 81 did not require the Court’s permission to pursue allegations of false testimony in existing proceedings. If, however, the point had arisen in light of the new CPR Part 81, the Judge indicated that she would anyway have held that Deutsche Bank’s allegations were of breach of an order to attend for cross-examination and provide information and documents, and not allegations of lying to the Court.
Sonia Tolaney QC, James MacDonald and Andrew Lodder acted for Deutsche Bank, instructed by Freshfields Bruckhaus Deringer LLP.
The judgment is available here.