Case No: 2001-1226

Neutral Citation Number: [2014] EWHC 3777 (Comm)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Date: 19/11/2014
Before :
MR JUSTICE HAMBLEN
--------------------Between :
ISLAMIC INVESTMENT COMPANY OF THE
GULF (BAHAMAS) LTD
- and (1) SYMPHONY GEMS NV
(2) RAJESH KISHOR MEHTA
(3) VIJAY KUMAR KIRTILAL MEHTA

Claimant/
Respondent
Defendants/
Applicant

----------------------------------------Mark Cunningham QC and Andrew Ayres (instructed by Norton Rose Fulbright LLP) for
the Claimant
Alastair Tomson (instructed by R.R Sanghvi & Co) for the Second Defendants/Applicant
Hearing dates: 29 and 30 October 2014
---------------------

Judgment

Mr Justice Hamblen:
Introduction
1.

The facts giving rise to the present application are so extraordinary that they
could have come from one of A.P.Herberts Misleading Cases.

2.

As with A.P. Herberts Uncommon Law, this case involves the false
document literary technique the creation of a sense of authenticity through
the invention of documents which appear to be factual.

3.

The author in this case was Mr Andrew Benson, then a partner in Byrne &
Partners LLP who was purporting to act for the Second Defendant, Rajesh
Mehta (RM).

4.

From the end of October 2010 until December 2013 he conducted fictitious
litigation for RM. That litigation involved fictitious hearings before the
Commercial Court and the Court of Appeal; purported judgments of those
courts; purported sealed court orders; a purported hearing transcript; purported
skeleton arguments; purported correspondence with court officials and the
Claimants solicitors, Norton Rose; the fictitious instruction and engagement
of various counsel, and telephone conferences involving the impersonation of
his senior partner and of leading counsel. None of this reflected reality.
Throughout that period there was in fact no contact with Norton Rose or the
court.

5.

The deception was finally discovered in December 2013 when questions were
asked about a transcript of a purported hearing before Popplewell J. and his
real clerk was contacted directly.

6.

Mr Benson has been dismissed from Byrne & Partners and is under
investigation by the Metropolitan Police and the Solicitors Regulation
Authority (SRA).

7.

The present application seeks the setting aside of orders made by the court at
the time Mr Benson was purportedly acting for RM in real litigation. That
litigation culminated in an order of David Steel J. dated 4 October 2010 (the
ACO) by which he activated a suspended committal order made by him on 1
October 2009 (the SCO) and had a bench warrant issued for RMs arrest.
RM seeks the setting aside of all adverse orders made against him during the
time of his representation by Mr Benson from the first instruction of Byrne &
Partners on 28 June 2007 until the ACO in October 2010, but his main focus is
on the SCO and the ACO. He contends that it is apparent that Mr Benson was
acting fraudulently and against his interests from at least the end of October
2010 until December 2013; that there is clear evidence of Mr Benson
misconducting the litigation in the lead up to the SCO and the ACO; that that
misconduct had a direct impact on the orders made, and that there is good
reason to believe that he was acting against RMs interest and with the
intention and effect of prejudicing him in the proceedings. In these

circumstances it is submitted that the court should set aside the orders pursuant
to its broad discretionary powers under CPR r3.1(7).
8.

Neither Mr Benson nor Byrne & Partners are party to these proceedings, nor
are they represented. Any findings I make are made on the basis of the
evidence presently before the court and for the purpose of this application
only.

The real litigation

9.

The real litigation has a long history. It is conveniently summarised in the

judgment of the Court of Appeal [2010] EWCA Civ 709 in which it dismissed
an appeal from the SCO. In giving the judgment of the Court Toulson LJ.
explained the background as follows:
3 The proceedings arise from a finance agreement made between the
claimants, an Islamic Investment Company, and the first defendants, who
were diamond traders, in January 2000. The appellant guaranteed the
obligations of the first defendants and both the financing and the guarantee
agreement were subject to English law and English jurisdiction. An event
of default having occurred, the claimants issued proceedings in 2001
against the first defendants and the appellant. In October 2001 the
claimants obtained a worldwide freezing order against the appellant for
over $10 million and an order that the appellant provide disclosure of his
assets.
4 On 13 February 2002 Tomlinson J ordered that summary judgment be
entered for the claimants against the first defendants and the appellant for a
sum of just over $10 million. The amount now stands with interest at over
$14 million. None of it has been paid. The history over the last eight years
has been of the claimant's unsuccessful attempts to obtain payment. The
appellant has never had difficulty in being represented by distinguished
solicitors and counsel. The material parts of the history are chronicled in
the judgment under appeal. Having summarised and having set out the
history, the judge said at [51]:
It is common ground that RM has the resources to meet the
judgment debt. But in my judgment this history demonstrates that a
determination on the part of RM to devote his time and money to
avoid payment and to obstruct the enforcement process. The
impression is fortified by the content of the oral examination as so
far completed. I regret to say that my reaction is few witnesses
have instilled still less confidence in their testimony whether from
the perspective or reliability or completeness. Throughout he was
evasive and unconvincing. Save where unchallenged, I would be
hesitant to accept any of his evidence absent corroborative
material.
5 The oral examination to which the judge referred had taken place before
him on 24 April, 27 April, 22 July and 23 July 2009. His examination was
as a judgment debtor, pursuant to the provisions of CPR 71. The committal

application was heard by the judge on 23 July immediately after the

conclusion of the oral examination under CPR 71, so the judge had heard a
good deal of evidence from the appellant. However, he did not give
evidence in response to the committal application.
6 The contempt application arose in this way. On 17 January 2007 Master
Miller made an order, which I will refer to as the original order, that:
1) the judgment debtor attend the court on 20 February 2007 at
10.30 am to provide information about his means and any other
information needed to enforce the judgment order. The questioning
will take place before a Court Officer.
2) The judgment debtor at that time and place produce at Court all
documents in the judgment debtor's control which relate to each of
the judgment debtor's means of paying the amounts due under the
judgment or Order and which related to those matters mentioned in
paragraph 1. The documents produced must include those shown in
the attached list of documents in Appendix 1 below.
7 The critical part of the order is at paragraph 2. The contempt found by
David Steel J was that the appellant wilfully failed to comply with that
order, but that is to jump ahead. In view of the arguments it is necessary to
trace the events over the period of some two years nine months between
the date of the original order and the finding of contempt.
8 The appellant sought to evade personal service of the original order by
denying his true identity. He was then arrested in Belgium, where he
suffered or at least claimed to have suffered a neck injury. This led to serial
postponements of the date fixed for his oral examination.
9 On 5 June 2007 the claimants obtained an order, without notice, for
substituted service of the original order, now re-listed for 3 July 2007, and
an order that if the appellant was prevented from attending the re-listed
hearing he was required to provide the documents referred to in the
original order to the claimants' solicitors, verified by affidavit.
10 The order, as served by way of substituted service, was in its original
form save that the date specified in the original order was altered to the
new date and the order was restamped with that alteration. The same thing
happened on each subsequent occasion when there was a postponement.
11 As a result of an adjournment application by the appellant, on 3 July
2007 a consent order was made for the hearing to be adjourned to 9
October, with further orders that the costs should be the claimants' and that
the appellant should provide the documents referred to in the original order
to the claimants' solicitors verified by affidavit on 10 July 2007. That did
not happen, and on 17 July the claimants obtained what was described as a
final order, that the appellants provide the documents to the claimants'
solicitors by 31 August 2007. Three days after that date, on 3 September
2007, the appellant issued an application challenging the court's
jurisdiction to have made the orders on 5 June and 31 August, which had

been made on without notice applications, and the order of 5 July, which
had been made by consent. The basis of the application was that the court
had no jurisdiction to require production of the documents prior to the
hearing ordered by paragraph 1 of the original order. The application came
before Andrew Smith J on 4 October 2007 and he allowed it.
13 On 8 October Andrew Smith J also granted an application by the
appellant for a further adjournment of the hearing which was due to have
taken place on the following day. The hearing was re-listed for 27
November 2007.
14 On 26 November the appellant sought a further adjournment. This time
it was because he had gone from Belgium to India voluntarily, so as to
avoid extradition proceedings and was unable to leave India. The
application came before Master Miller. On 6 December he adjourned the
hearing to 31 January 2008 and ordered that in the event of the appellant
failing to attend on that day he should provide written answers to a list of
questions by 14 February 2008. The imposition of a requirement to
provide answers to questions was no doubt in consequence of the previous
finding that the court had no jurisdiction to require the production of
documents prior to the hearing.
15 The appellant did not attend on 31 January 2008 and Bean J made a
suspended committal order. On 21 February 2008 Teare J made an order
for substituted service of Master Miller's original order but amended to set
a new date of 11 March 2008. He also granted substituted service of the
suspended committal order. On 11 March 2008 two things happened. This
court set aside the suspended committal order made by Bean J, although it
ordered the appellant to pay all the costs. Simultaneously the examination
which had been ordered by Master Miller 14 months earlier began before a
court officer. The appellant did not produce any of the documents which he
had been ordered to produce. He did produce a witness statement annexing
his answers to the questions which Master Miller had ordered on 6
December. In relation to a considerable number of the questions, but by no
means all of them, he stated that he declined to give an answer on grounds
of self-incrimination. At the oral examination he answered some questions
put to him but refused to answer others on grounds of self-incrimination.
16 On 16 May 2008 Master Miller made an order which among other
things provided:
The second defendant's failure to comply with paragraph 2 of the
order of Master Miller made on 16 January 2007 be referred to the
same Judge pursuant to CPR 71.8(1) (c) .
The reference to the same judge was to a judge of the Commercial Court
to whom Master Miller referred the issue whether the appellant was
entitled to refuse to answer questions which had been put to him on
grounds of privilege against self-incrimination.
17 On 15 July 2008 David Steel J dealt with the privilege issue and ruled
against the appellant. 18 July 2008 had been fixed for a resumption of the

examination under CPR 71, but on the morning of the hearing David Steel
J granted a further application to adjourn proceedings on medical grounds
and fixed a resumed hearing for 8 September, when he was due to be
sitting as the vacation commercial judge.
18 In his judgment on 18 July he addressed the question what should
happen prior to the adjourned hearing in September. As to that he said as
follows:
10. The next question is what, if anything, must happen prior to
that hearing. The first thing that must happen is that he must
produce the documents that he was ordered to by Master Miller in
January 2007, 18 months ago. As I understand it, it is suggested
that the failure to comply with that order is associated with a claim
of privilege. For the moment I will accept that there is, or may have
been the justification, for failing to produce the documents but that
justification has now disappeared and the documents that have
been called for an indeed the documents that he has offered to
produce during the course of the last hearing, must be disclosed
some 10 days before the next hearing.
I quote that extract because it is relevant to one of the submissions which it
has been necessary to address.
19 There followed further applications, the details of which it is
unnecessary to recite, and further adjournments. The appellant sought
leave to appeal among other things on the issue of privilege. Leave was
initially refused. On the appellant's renewed oral application it was
granted, but only on the terms that the appellant brought the entirety of the
judgment sum into court, paid all unpaid costs orders and provided
security for costs. Those conditions no doubt reflected what the court
thought of the merits of his position. They were not at all, of course, what
the appellant wanted and he did not comply them. It would be naive to
suppose that he intended to do so, having regard to the wider history of
events, but applied for an extension of time to comply with the Court of
Appeal's order, which the court granted. He still failed to comply with the
conditions and so that appeal fell away.
20 Some months having elapsed, the hearing for his examination under
CPR 71 was re-listed. So it was that it came before David Steel J in April
2009 and on the further dates in July 2009 to which I referred. Shortly
before the April hearing the appellant produced some further documents to
which I will return. He promised to produce others but did not do so and so
on 6 May 2009 David Steel J ordered that he produce the further
documents by 20 May 2009.
21 There then ensued the continued further examination under CPR 71 on
22nd and 23rd July 2009 and the hearing of the contempt application. The
judge found that there had been a breach of the original order by the
appellant's failure to produce the documents which he had been ordered to
produce at the hearing on 11 March 2008. He found that he was satisfied to

the criminal standard that the failure was through wilful disobedience. As
to that he said at [65]:
I have no hesitation in concluding that RM's contempt was
contumacious. Throughout the period from March 2007 to March
2008 RM's stance is only consistent with a refusal to comply with
the order to produce documents. Indeed, no suggestion was made
that any material attempt to pay the order had been undertaken. The
suggestion that the order had been superseded was a late and
misconceived proposition
He then considered whether the appellant had effectively purged his
contempt by subsequent compliance and concluded that he had not.
22 As to the penalty he said at [75]:
In my judgment RM unlawfully disobeyed the order of 2007 in
March 2008 and nothing that has happened since makes it
inappropriate to impose a suspended committal order in respect of
that contempt. I am satisfied that it is proper to impose a penalty.
Only the coercive threat of the imposition of such a penalty has the
prospect of ensuring the obedience on the part of RM. As regards
the condition for any suspension, I accept in broad terms the terms
suggested by the bank in a draft order but subject to further
comment on behalf of RM. The process of specifying the nature of
the sanction and the period of suspension during which compliance
had been achieved must also involve furnishing an opportunity of
RM to make further submissions in this worryingly protracted
litigation
Further submissions were made by the parties before the judge made his
final order.
10.

RM had appealed from the SCO on a large number of grounds, but the main
grounds were: (i) there was no breach of Master Millers order of 17 January
2007 because that order had been superseded by the court orders made on 5
June, 3 July and 31 August 2007; (ii) there was no contumacious default by
RM in failing to produce any documents at all for the hearing in March 2008
because he believed that he was protected from doing so by privilege against
self-incrimination; (iii) the judge was wrong in not concluding that RM had
purged his contempt by the production of further documents and (iv) the terms
on which the order was suspended were inappropriate and the nine month
committal sentence was too long. The appeal was dismissed on all grounds.
The Court observed at [46] that:
46 The judge was entitled to regard this as a bad case in which a
judgment debtor had metaphorically thumbed his nose at the court and that
it merited a significant period of committal if there was to be any realistic
prospect of the appellant complying with his obligations.

11.

Subsequent to the Court of Appeal judgment, a hearing date of 4 October 2010

was fixed for the committal proceedings. Mr Benson appeared at that hearing
but stated that he was without instructions. The result of the hearing was the
lifting of the suspension of the committal order and the issue of a bench

warrant. The chronology leading up to that hearing will be considered in more

detail below.
The fictitious litigation
12.

It is necessary to set this out in some detail since RM invites the court to draw
inferences from the nature and sophistication of the fraud involved.

13.

Throughout this period RM was outside the UK and only met with Mr Benson
on two occasions. For much of this time (and before) RM had the assistance
of Mr Sanghvi, an English solicitor who was helping him. Mr Sanghvi has
made a 271 page witness statement in support of the application following a
thorough review of Byrne & Partners files (although apparently not all of them
have been released by the SRA). A number of the communications with Mr
Benson were made by or through Mr Sanghvi.

14.

The following chronology is what appears to be shown by the files provided,

supplemented by the evidence of Mr Sanghvi.

15.

David Steel J.s order lifting the suspension of the committal order was made
on 4 October 2010. RM immediately instructed Mr Benson to take urgent
steps to appeal against that order.

16.

By around 14 October 2010 Mr Benson appears to have led RM to believe that

Mr Timothy Owen QC had been instructed to represent him in the future
conduct of the case. It has since become apparent that Mr Owen QC was
never instructed.

17.

By mid-November 2010 Mr Benson had told RM that he had instructed Lord

Kenneth MacDonald QC to represent him. It has since become apparent that
Lord MacDonald QC was never instructed to represent RM. However, on 16
November 2010 Mr Benson forwarded to RM and Mr Sanghvi a copy of
leading counsels note purportedly written by Lord MacDonald QC in relation
to expedition of the prospective appeal.

18.

In December 2010 and January 2011, RM expressed concerns that there did
not seem to have been any developments. Mr Benson blamed the delay on
Lord MacDonald QC, and drafted a complaint email, purportedly to be sent to
Lord MacDonald QCs clerks.

19.

On 30 January 2011 Mr Benson circulated a draft letter to Norton Rose, which

Mr Benson claimed was sent on 31 January 2011. In fact, Norton Rose has
confirmed that they had no contact with Byrne & Partners after late October
2010. The terms of the letter invited the Claimant to agree to an application to
stay or lift the bench warrant to allow RM to attend a hearing.

20.

Mr Benson then forwarded to RM a letter dated 2 March 2011 addressed to the

clerk to Mrs Justice Glouster [sic], requesting that his matter be brought
before a judge other than David Steel J.

21.

By a further letter dated 7 March 2011 Mr Benson purported to have written to

the clerk to the Commercial Court list in relation to the removal from the list
of an application by RM which was supposedly to be heard on 8 March 2011
before David Steel J.

22.

Mr Benson then copied to RM a letter dated 9 March 2011 purportedly sent to

the Registrar at the Royal Courts of Justice expressing concerns about RM
receiving a fair hearing, and David Steel J.s appropriateness to hear the
matter.

23.

Mr Benson then provided a draft letter dated 24 March 2011 from Byrne &
Partners to Norton Rose (with amendments from Mr Sanghvi), which RM
believed had subsequently been sent, expressing RMs desire to return to the
country and appear before the Court to demonstrate to the Court his efforts in
meeting his obligation. The letter also referred to an application being made
to recuse Mr Justice David Steel from further hearings in respect of this
matter.

24.

Shortly thereafter Mr Benson forward to RM a letter purportedly written to the

Civil Appeals Office dated 31 March 2011 in relation to an appeal which had,
apparently, been removed from the list on 18 March 2011 because it was
considered events under appeal were to be superseded by events in the
Commercial Court. It now asked for the appeal to be relisted.

25.

By an email dated 8 April 2011 RM contacted Mr Benson expressing his

frustration at being unable to see his children, and the impact it was having on
them and on RM. He wanted to speak urgently with Ken (Lord MacDonald
QC) as I cant believe the way my matter is being treated by the uk courts,
especially since it is a civil matter.

26.

In an email of 12 April 2011 Mr Benson again appeared to be trying to blame

counsel for the delays: Im struggling to tie Counsel down but can we meet
later this week simply to go over the bias point and make sure I am not
missing anything?.

27.

On 15 April 2011 Mr Benson, after many requests, finally emailed to RM what

purported to be an order of the Commercial Court dated 16 March 2011
directing that RMs application be taken out of the list and relisted at the
parties convenience, that David Steel J. should determine whether to recuse
himself, and that all matters pertaining to the matter should be removed from
the Court of Appeal list. This appears to be the first of the orders of the Court
fabricated by Mr Benson. It bore an apparent Court seal but no judges name
or signature.

28.

By early May 2011 RM understood that a hearing had been listed for 18 May
2011, at which he would be represented by Lord MacDonald QC. From 4 May
2011 RM was pursuing Mr Benson by email, again expressing frustration at
the way things were being handled.

29.

On 14 May 2011 Mr Benson sent to RM what purported to be a draft skeleton

argument for the 18 May 2011 hearing.

30.

On 16 May 2011 Mr Benson forwarded to RM and Mr Sanghvi what

purported to be an email from Mr Christian Tuddenham of Norton Rose saying
that due to the unavailability of their counsel they were intending to ask for the
hearing of 18 May 2011 be taken out of the list.

31.

This caused further concern to RM about the way that Mr Benson had
apparently been conducting the litigation, leading to RM sending to Mr
Benson a set of new systems in place on 18 May 2011. It is clear from the
terms in which the list of points was written that RM continued to believe
Lord MacDonald QC was representing him, and that there were outstanding
matters in both the Court of Appeal and in the Commercial Court. RM
finished by noting that: It is not right that whilst my parents pay the fees, I
have no advice. My family has asked me to ensure that we comply with these
failing which I will be forced to withdraw my instructions and they will then
engage a lawyer solely of their choice.

32.

On 20 May 2011 Mr Benson sent to RM a draft letter of instruction to Lord

MacDonald QC.

33.

On 22 May 2011 RM emailed Mr Benson asking him to finalize the bias

appeal & the appeal against the October order as early as possible this week.

34.

On 25 May 2011 Mr Benson forwarded to Mr Sanghvi a copy of an email he

claimed to have sent to Commercial Court listing the previous day, pushing for
RMs matter to be relisted. The following day he forwarded a similar email
addressed and purportedly sent to the Court of Appeal listing office.

35.

Between 26 May 2011 and 30 May 2011 Mr Benson connected a person to

speak to RM on a telephone conference who was introduced as the senior
partner of Byrne & Partners, David, with whom RM had a 30 to 45 minute
telephone conversation about his matter. It would appear that Mr Benson had
arranged for an accomplice in the deception to impersonate David Byrne,
senior partner of Byrne & Partners, on that telephone call. For the avoidance
of doubt, no suggestion is made by RM that any other person from Byrne &
Partners was involved in the deception.

36.

On 31 May 2011 Mr Benson forwarded to RM a copy of a letter, purportedly

from Lord MacDonald QC to the Registrar at the Civil Appeals Office seeking
expedition of RMs matter.

37.

In early June 2011 Mr Benson communicated that there might be difficulties

with Lord MacDonald QCs availability because he had, apparently, received
urgent instructions in relation to a national security issue. He claimed to
have been in touch with Lord MacDonald QCs clerks to ensure his
availability for RMs matter, and claimed to be liaising with the Court of
Appeal to list the appeal.

38.

In late June 2011 Mr Benson was actively engaging with RM and Mr Sanghvi
in developing submissions in relation to the appeal on grounds of David Steel
J.s alleged bias, and the terms of a draft order from the Commercial Court for
the continuation of the proceedings, including a stay of the committal order
and Bench Warrant.

39.

In early July 2011 Mr Benson informed RM and Mr Sanghvi that Norton Rose
had consented to the terms of an order staying the bench warrant and allowing
RM the opportunity to demonstrate his compliance afresh. On 5 July 2011 he
forwarded to RM and Mr Sanghvi what purported to be a sealed order dated 4
July 2011. He claimed to have attended at court that day without NR and
have not been successful in obtaining a Judges signature. RM was very
concerned that, as it appears Mr Benson had explained to him, the order was
ineffective without a judges signature. As he expressed in an email of 7 July
2011:
I am worried by this because I only asked to get it signed by a judge as
additional security for my travel & to ensure that the other side could not
wriggle out of this consent terms,& if I had travelled on the consent form
signed between the parties, I am not sure what would have happened to me
at the airport. Also I am now aware how long the court is going to take in
listing this application & it is obviously eating away the days that I need
for my compliance as I am unable to work on it from here.

40.

On 11 July 2011 Mr Benson forwarded to RM an email purportedly from

Norton Rose, confirming receipt of a letter from Byrne & Partners in relation
to a payment to Byrne & Partners of 25,000 seemingly required under
paragraph 5 of the supposed sealed consent order as security for RMs
attendance at court.

41.

On 19 July 2011 Mr Benson forwarded an email he purported to have sent to

the Commercial Court for the attention of Blair J. the previous day.

42.

On 22 August 2011 Mr Benson forwarded an email he purported to have sent

to the Commercial Court for the attention of Sales J. in relation to the consent
order, as nothing had apparently been heard (Sales J. was not in fact a
Commercial Court Judge).

43.

On the same day Mr Benson sent a draft letter of complaint in relation to Sales
J. for RMs approval from which it is apparent that Mr Benson had led RM to
believe that the consent order had been put before Blair J. on 8 July 2011, but
not dealt with; that Sales J. had become involved on 5 August 2011; that on 12
August and 15 August 2011 Sales J. had given assurances in open court that he
would turn his mind to the issues; that further assurances had been given by
Sales J.s clerk to Byrne & Partners, repeatedly, that the judge would deal with
it, but that the consent order had still not been dealt with.

44.

RM expressed his frustration in an email of 20 August 2011 stating that:

I am being denied access to travel, to visit my children in spite of such
serious riots, & to make proper compliance of my orders. The courts not
endorsing the consent order will make me not carry out my compliance in

the best possible manner & thereby give the claimant another shot to go
after me....Please arrange for the compliance to start at the earliest with
each question in each order being answered individually with the
necessary documents.
45.

On 30 August 2011 Mr Benson told RM that on 26 August Mr Justice

Hutchinson had agreed to deal with the matter unless Blair J. or Sales J. dealt
with it, and forwarded to RM an email he claimed to have sent to their clerks
to that effect (there is no Mr Justice Hutchinson).

46.

On 31 August 2011 Mr Benson then forwarded by email a stamped order of

Mr Justice Hutchinson confirming apparently after a hearing at which RM
had been represented by counsel - that the order of David Steel J. of 4 October
2011 remained in full force and effect, and that the consent order had been
ineffective. The order stated that the parties were to attend the listing office to
fix further hearings.

47.

In emails of 10, 15 and 24 September 2011 sent to Mr Benson RM again

expressed his frustration at the way be perceived he was being treated by the
English court, his belief that David Steel J. had been biased against him, his
desire to take further steps to demonstrate his compliance, and the effect this
was all having on himself and his family. As he stated in his email of 24
September 2011:
I am not sure whether you understand the grief and difficulty this
situation is causing me, my family & children. If you did understand it I
am wondering why my matter is being handled in this manner. My family
& we are at breaking point & if this is not resolved just to give me a proper
hearing in court with full preparation then we will have to think about
other options. I do hope you see where we are coming from because I have
now gone through more punishment than the original sentence itself.

48.

In late September 2011 Mr Benson informed RM that he had now instructed

Mr Edward Fitzgerald QC to represent him in place of Lord MacDonald QC,
and that there was a hearing listed for 7 October 2011 before the Commercial
Court. A draft affidavit was under preparation for that hearing.

49.

On 6 October 2011 Mr Benson informed RM that counsel had written to the

court to ask it to direct that the Claimant should show cause as to why the 4
July 2011 consent order should not be adhered to. Later that day he forwarded
an email purporting to come from Commercial Court listing communicating
that The Judge had directed that the Claimant provide written confirmation
as to its position on the 4 July 2011 consent order. The following day he
forwarded an email purportedly from the court saying that the Claimant had
objected to the course of conduct directed by the Judge and the parties
counsel had been directed to attend court at 0930 that day.

50.

It is not clear what then supposedly transpired, but later on 7 October 2011 Mr
Benson forwarded to RM a draft skeleton argument in relation to the
contentions about David Steel J.s alleged bias.

51.

RM appears to have been told by Mr Benson that the court had required him to
provide an affidavit setting out his commitments over the coming weeks, and a
draft was worked on and produced.

52.

On 20 October 2011, Mr Benson sent to RM a purported sealed order of Teare

J. dated 17 October 2011 directing that the committal order and bench warrant
made on 6 October 2010 [sic] be suspended, and that there be a fresh
consideration of RMs compliance, to be heard by a judge other than David
Steel J. RM was required to serve an affidavit detailing his compliance by 9
December 2011.

53.

It then appears from subsequent documents that Mr Benson led RM to believe

that Teare J.s order had been stayed because the Claimant was appealing
against it and that there was a hearing before the Court of Appeal on 6
December 2011. It appears that Mr Benson had told RM that the Claimant had
delayed serving its appeal skeleton argument, and Mr Benson had as a result
requested that the Claimant be debarred from pursuing the appeal.

54.

On 29 November 2011 Mr Benson forwarded to RM what purported to be a

skeleton on behalf of the Claimant, bearing the names of the Claimants
leading and junior counsel.

55.

On 30 November 2011 Mr Benson circulated a discussion note in advance

of the forthcoming appeal. It then appears that Mr Benson told RM that there
would be a Court of Appeal hearing on Friday 6 January, at which he would be
represented by Mr Fitzgerald QC.

56.

On 8 January 2012 RM again expressed his frustration at the way his case was
being handled, including that he had not been able to speak to counsel
instructed on his behalf since October 2010, and that David (being David
Byrne, senior partner of Byrne & Partners) had not taken more of an interest in
the case (presumably a reference back to the telephone conference held in late
May 2011 when David spoke with RM).

57.

From an email of 15 January 2012 it appears that RM had been told that
additional leading counsel had been instructed to give an opinion, but that the
promised opinion was late. The same email suggests Mr Benson had told RM
that Mr Fitzgerald QC had written to the court. RM instructed Mr Benson to
make an application for the stay on Teare J.s order to be lifted, and on 19
January 2012 Mr Benson told RM that that application was being heard on
that same day, forwarding a copy of a note to the court.

58.

On 24 January 2012 Mr Benson emailed to RM an order purportedly made in

the Commercial Court by Proudman J. lifting the stay on Mr Justice Teares
order as no decision has [sic] given in the appeal heard 6 December 2011.
The order was dated 23 January 2012, but the stamp bore the date 23 July
(Proudman J. is not a Commercial Court Judge).

59.

Mr Benson also forwarded to RM a copy of a letter dated 23 January 2012

purportedly sent to the Director of the UK Border Agency enclosing a copy of
Proudman J.s order and asking for confirmation that all bench warrants and
or orders to detain Mr Mehta had been notified to all staff as being
withdrawn.

60.

On 8 February 2012 Mr Benson forward to RM what purported to be an email

from the Civil Appeals office referring to a hearing the previous day, and
stating that judgment would be handed down in the presence of counsel the
following day, failing which it would be released by email that Friday, with
submissions on consequential matters to be made in writing and an order to be
considered made on Monday in the absence of the parties.

61.

On 10 February 2012 Mr Benson forwarded to Mr Sanghvi what purported to

be a judgment from the Court of Appeal (Moore-Bick and Richards LJJ, and
Sir David Latham) in relation to the hearing of the Claimants appeal against
Teare J.s order. The judgment is in Westlaw format, has the citation number
[2012] EWCA Civ 409 and records that Mr Edward Fitzgerald QC and Mr
James Hines had appeared for RM and Mr Anthony Trace QC and Mr Andrew
Ayres for the Claimant appellant. It runs to 6 pages and comprises 37
plausibly reasoned paragraphs.

62.

At paragraph 23 of the judgment the court explained the basis of the appeal:
The Respondent sought and obtained an order that the Committal Order
and the Bench warrants be considered afresh on the basis of the apparent
bias of the Trial Judge Mr Justice David Steel. The context of this
application arose because the parties had agreed in August 2011 to set
aside the judgment with a view to obtaining fresh compliance. Ultimately
although an order was made by the parties by consent the Court using its
inherent jurisdiction Ordered the matter be tried given the implicit
criticisms of a Judge. That is the matter that went before Mr Justice Teare
and the subject of this appeal.

63.

The judgment concluded that Teare J. had not considered all of the relevant
matters in reaching his conclusion, and that his order would therefore be set
aside and the matter would have to be remitted to be heard again:
It is essential that the parties understand that I am not finding that there is
no appearance of bias but merely that the judge erred in finding that there
was on the basis that he did...Accordingly the parties are invited to provide
proposals as regards the future conduct of the matter on the basis that it
ought properly be referred back to the Commercial Court. Having said this
it will be clear from what I have said above that the Committal Order and
Bench Warrant remain in full force unless and until further application is
made on the basis of complete information to a Judge of the Commercial
Court. (paragraphs 33 to 35).

64.

Hence by this point Mr Benson had constructed a fiction in which RM was

effectively back to square one. He purported to have sent letters to Norton
Rose to explore the way forward on 10 and 20 February 2012. On 17 February

2012 he forwarded a copy of the Court of Appeals order in unsealed form

which he claimed had been provided by the court.
65.

On 21 March 2012 Mr Benson told RM that Gloster J. had set aside David
Steel J.s orders of 4 October 2010. It appears from an email sent by RM the
same day that he was told that this was on the grounds of RMs health at the
time of the 4 October 2010 hearing. RM explained that he still wished to
consider taking further steps in relation the bias issue, including taking the
matter to the ECHR in Strasbourg: I have suffered separation from my family
for sixteen months & counting on a civil matter & there is no remedy for the
anguish that we are going through & my right to family life is completely
violated. I want to see if there is something we can do about this.

66.

On 26 March 2012 Mr Benson emailed what purported to be the sealed order

of Gloster J.

67.

He then informed RM that the Claimant had lodged an appeal against the
order of Gloster J. On 25 May 2012 he forwarded a purported sealed order of
the Court of Appeal dated 18 May 2012 upholding Gloster J.s order, but
providing that the matter be brought before the court to consider whether
conditions should be applied. Mr Benson then forwarded what purported to be
a further sealed order from the Court of Appeal, dated 25 May 2012, applying
conditions pursuant to the Courts previous Order (dated 18 May 2012) that
RM should pay USD 3,000,000 into court on or before 6 July 2012; should
return to the jurisdiction pending the redetermination of his compliance;
should surrender his passport; and should serve the evidence in relation to his
compliance by 29 June 2012.

68.

Shortly thereafter, Mr Benson sent to RM copies of a letter purportedly sent to

the UK Border Agency enclosing the Court of Appeals order and seeking
confirmation that the UK Border Agencys records had been suitably updated.

69.

Thereafter considerable steps were taken to seek to demonstrate RMs

compliance. This included visits by Mr Benson and Mr Sanghvi to see RM in
Brussels and Antwerp on 1 June and 18 June 2012 respectively to take
instructions from him. Various drafts of an affidavit were produced and RM
was led to believe that this had, in its final form, been lodged with the Court.

70.

Mr Benson then told RM that the matter was being listed before Dobbs J. and
that Mr Fitzgerald QC remained instructed. He subsequently informed RM
that a hearing had been held before Dobbs J., and that judgment was awaited.
On 6 August 2012 he forwarded an email from the Commercial Court
explaining that while Dobbs J. had intended to hand down her judgment on 6
August she was still working on her judgment (Dobbs J. was not a
Commercial Court Judge).

71.

Mr Benson forwarded by email on 13 September 2012 what purported to be a

judgment of Dobbs J. in relation to applications made concerning the
committal order and the bench warrant. The judgment was seven pages
long, had a neutral citation number and was in Approved Judgment form. The

judgment stated that RMs further affidavit still did not amount to
compliance, refused his applications, and gave directions for a further affidavit
to be served, and for the matter to be brought back before her on 3 October
2012.
72.

Work immediately commenced on producing the further affidavit apparently

ordered and to deal with the points raised in Dobbs J.s judgment.

73.

Mr Benson then informed RM that, in the event, the hearing directed for 3
October 2012 had been vacated. On 11 October 2012 he circulated
submissions he said had been served by the Claimant and led RM to believe
that a hearing had taken place with judgment reserved.

74.

No judgment was handed down, and Mr Benson then reported that an

appearance by counsel had been made before Goldring LJ. as Senior Presiding
Judge to complain about the delay in judgment being handed down, and that
he had issued a ruling, for the attention of Dobbs J. to reaffirm the need for
swift and transparent processes.

75.

It appears that in the light of this ruling, Mr Benson told RM that Dobbs J.
had made an order on 6 November 2012 (but not delivered a judgment)
requiring RM to disclose certain categories of documents by 7 November
2012. A Ninth Affidavit of RM was then produced dealing with the questions
raised, which RM believed had been filed and served.

76.

Mr Benson told RM that a hearing had taken place before Dobbs J. on 19

November 2012, at which he had again been represented by Mr Fitzgerald QC.
On 21 November 2012 he emailed to RM wording of a further order which, he
claimed, Mr Fitzgerald QC had agreed. The terms of the order required RM to
provide by 24 November 2012 information and documents relating to the
funding of his day to day living expenses, accommodation, and travel
arrangements. The matter was, apparently, to be relisted on 27 November
2012.

77.

A Tenth Affidavit of RM was then prepared and, RM believed, lodged and

served, dealing with those questions.

78.

On 3 December 2012 Mr Benson forwarded to RM an email purportedly from

the clerk to Dobbs J. explaining that her ruling would be circulated that day,
and that she had updated the Presiding Judge as to her progress and he has
requested that he be kept informed updated [sic] as regards progress later
today.

79.

Nothing was apparently received from Dobbs J., and on 28 December 2012
Mr Benson sent to RM a copy of an appeal submission he claimed Mr
Fitzgerald QC had drafted to be placed before the Court of Appeal in relation
to the delay in the handing down of Dobbs J.s decision.

80.

Mr Benson then provided RM with a copy of an order apparently made by the

Court of Appeal on 10 January 2013 providing that certain consequences

would follow if Dobbs J. did not hand down her judgment before 18 January
2013.
81.

On 29 January 2013 Mr Benson told RM that there had been a hearing before
the Court of Appeal on that day at which the setting aside of the committal
order and the direction for an expedited hearing before a judge other than
Dobbs J. had been debated. This led to consideration of the position in emails
between Mr Benson, Mr Sanghvi and RM prior to a hearing before the Court
of Appeal Mr Benson had told them would take place on 4 February 2013.

82.

During this period a telephone conference took place between Mr Benson,

RM, Mr Sanghvi and someone impersonating Mr Fitzgerald QC.

83.

Subsequently (although not until 28 March 2013) Mr Benson provided RM

with a copy of the sealed order he said had been made by the Court of Appeal
on 30 January 2013. The terms of the order included that Dobbs J.s
determination should be set aside and the matter remitted to the Commercial
Court, and that RMs application to re-enter the jurisdiction should be
permitted subject to certain conditions, including that he lodge security of
USD 1.5 million to the Supreme Court Costs Office, and that he surrender his
passport within 24 hours of entry into the jurisdiction.

84.

In late February 2013 Mr Benson led RM and Mr Sanghvi to believe that the
matter was before Popplewell J. and that an order was being drawn up
providing that unless the Claimant filed and served a witness statement by 15
March 2013 detailing any and all documents which it is alleged the 2 nd
Defendant has failed to disclose pursuant to the Orders of Master Miller dated
16 January 2007 and Mr Justice Steel dated 6 October 2009 it would be
ordered that RM had complied with the said orders. A purportedly sealed
order of Popplewell J. to this effect was then forwarded to RM by Mr Benson.

85.

On 15 March 2013 Mr Benson forwarded a witness statement purportedly

made by Mr Walton of Norton Rose dated the same day, as provided for in
Popplewell J.s order, explaining why the Claimant contended that RM had not
complied with his disclosure obligations.

86.

Work then commenced on an affidavit from RM in reply to the statement he

believed had been served on behalf of the Claimant and various drafts were
produced. Mr Benson was instructed to serve the evidence in affidavit form on
22 March 2013.

87.

Mr Benson then led RM to believe that there had been a hearing before
Popplewell J. on about 11 April 2013, leading to an order requiring RM to
give further affidavit evidence, the draft terms of which Mr Benson
communicated on 12 April 2013.

88.

On 25 April 2013 Mr Benson forwarded to RM an email purportedly from Mr

Walton of Norton Rose requesting a change to the timetable ordered by
Popplewell J. He then claimed to have spoken to Mr Fitzgerald QC about it

who advised that RM should not serve his own evidence until the following
week.
89.

The affidavit which RM believed he had been ordered to provide by

Popplewell J. was then finalised on 1 May 2013.

90.

RM was led to believe that a hearing then took place before Popplewell J. on 8
May 2013, with judgment reserved. This was, RM believed, the hearing at
which the affidavits he had sworn in the period since October 2010 would be
considered in order to determine whether he had complied with his disclosure
obligations under Master Millers 16 January 2007 order. Subsequent to that
supposed hearing, a further telephone conference was held with someone
impersonating Mr Fitzgerald QC.

91.

On 15 May 2013 Mr Benson forwarded an email purporting to come from the

clerk to Popplewell J. requesting his and Mr Waltons attendance in chambers
to assist him with documentation to ensure his notes are reconciled to the
specific documents referred to and that his judgment deals with all the relevant
points.

92.

On 21 May 2013 Mr Benson forwarded another email purportedly from

Popplewell J.s clerk saying that judgment would be handed down at 1630 that
day. He later reported back to RM that Popplewell J. had found RM in
contempt and had handed down a bench warrant. Orders purportedly sealed
and signed by Popplewell J. were forwarded on 5 June 2013.

93.

RM instructed Mr Benson to lodge an appeal against the orders of Popplewell

J., and on 16 July 2013 Mr Benson forwarded a draft Court of Appeal skeleton
argument which he claimed had been drafted by Mr Fitzgerald QC.

94.

On 16 July 2013 Mr Benson told Mr Sanghvi that the hearing before the Court
of Appeal was due to be that Thursday.

95.

On 28 August 2013 Mr Benson circulated by email what purported to be a

copy of Popplewell J.s judgment of 28 May 2013. This appeared to have
been taken from Westlaw, had a neutral citation number and ran to five pages.

96.

On 30 September 2013 Mr Benson emailed to RM and Mr Sanghvi a copy of a

sealed order of the Court of Appeal upholding Popplewell J.s order of 28
May 2013, and a copy of what purported to be the judgment of the Court of
Appeal (Jackson, Arden LJJ and Sir Scott Baker). This was again in Westlaw
format, had a neutral citation number and ran to four pages.

97.

A further witness statement on behalf of RM was then drafted and forwarded

to Mr Benson on 28 October 2013.

98.

In early November 2013 Mr Sanghvi, at the request of RMs parents, chased

Mr Benson for a transcript of the hearing before Popplewell J. This was not
forthcoming, and RM chased again on 20 and 28 November 2013. On 2
December 2013 RM instructed Mr Benson to provide Mr Sanghvi with the

dates of the hearing so he could chase the transcribers. He chased him again
on 3 December 2013: My parents have been extremely upset that its been
three months that we have not moved forward due to the fact that we are
waiting for transcripts. In the light of this its best I withdraw my instructions
to your firm as its causing too much friction as well as delay in my matters..
Mr Sanghvi chased Mr Benson to similar effect on 4 December 2013.
99.

On 9 December 2013 Mr Benson finally sent through what purported to be a

transcript of the hearing before Popplewell J. on 28 May 2013. He promised to
forward the Court of Appeal transcript subsequently, but this did not ever
materialise. Mr Sanghvi raised with Mr Benson a number of anomalies in
relation to the transcript.

100.

Nothing further was heard from Mr Benson after 9 December 2013.

101.

By now, RM and Mr Sanghvi had grown suspicious of what they have been
told by Mr Benson, and in particular the delay in providing the transcripts of
the hearings before Popplewell J. and the Court of Appeal. From 9 December
2013 Mr Sanghvis firm started to make its own enquiries directly with the
Commercial Court and Court of Appeal. It was in the course of these
investigations that the Commercial Court and Court of Appeal confirmed that
the various hearings, orders, judgments etc. since the 4 October 2010 hearing
had been fabricated by Mr Benson.

102.

Mr Sanghvis firm also made enquiries of various counsel said to have been
instructed since October 2010. The clerks to Mr Fitzgerald QC, Mr Owen QC
and Lord MacDonald QC all confirmed that they had never been instructed on
RMs matter.

103.

On 20 December 2013 Mr Sanghvi contacted the Police, and on 9 January

2014 he contacted the SRA to explain what had been discovered about Mr
Bensons conduct.

104.

The deception practised by Mr Benson over a period of more than 3 years, as

summarised above, is rightly described as breathtaking. Until the Police and
the SRA have concluded their investigations much remains unclear, including
his motives. What is clear, however, is that his actions will have had a
significant effect on RM (and his family) who has been strung along for more
than 3 years in attempts to challenge the ACO and apparent subsequent court
orders and in efforts to demonstrate that he has complied with the order of
Master Miller of 17 January 2007. Throughout this time RM has been
effectively been prevented from entering this jurisdiction causing obvious
distress to himself, his partner and his children (who live in the UK).

105.

The motives for Mr Bensons actions are presently unclear. The only payment
made on behalf of RM during this period is the payment of 25,000 made to
Byrne & Partners pursuant to the supposed consent order dated 4 July 2011.
This has now been returned. None of the other payments called for in
purported court orders were made. There is some evidence that other
payments may have been made to Byrne & Partners but, if so, not by or on

behalf of RM. There is also some evidence of a bitter family feud and of
parties who might have an interest in ensuring that RM failed in all aspects of
the English court litigation. However, at present this is all speculation.
Matters will no doubt become clearer as a result of the Metropolitan Police
and SRA investigations.
CPR r.3.1(7)
106.

Rule 3.1(7) provides as follows:

A power of the court under these Rules to make an order includes a power
to vary or revoke the order.

107.

All of the orders which are sought to be set-aside by the application are orders
made under the Rules. That includes the bench warrant of 4 October 2010
which was made under rule 71.8(4) (b).

108.

The authorities indicate that CPR r.3.1 (7) is not to be used to vary or revoke a
final order, i.e. an order which, to adopt the definition in section 3.1.9.1 of the
White Book 2014 (page 67), determines between the parties the issues which
are the subject matter of the litigation and which give rise to a cause of action
estoppel between those parties. Generally, a party seeking to challenge such
final orders should appeal against the orders, not seek to have them set aside see, for example, the judgments of the Court of Appeal in Enron (Thrace)
Exploration v. Clapp (No.2) [2005] EWCA Civ 1511 and Roult v. North West
Strategic Health Authority [2009] EWCA Civ 444, and the judgment of Briggs
J. in Kojima v. HSBC Bank plc [2011] EWHC 611 (Ch). None of the orders
which RM seeks to have set aside are final orders in this sense. Accordingly,
RM submits that the appropriate course is for RM to apply back to the Court
to seek to have them set aside.

109.

The Claimant does not dispute the availability of the Courts jurisdiction under
CPR r3.1 (7) in relation to orders such as those sought to be set aside.
However, it contends that on the facts of this case the Courts discretion under
the rule is not engaged.

110.

In Tibbles v. SIG plc [2012] EWCA Civ 518 Rix LJ. reviewed the
jurisprudence relating to the exercise of the CPR r.3.1(7) power at [27] to [38].
He expressed his conclusions at [39] to [42]:
[39] In my judgment, this jurisprudence permits the following
conclusions to be drawn:
(i) Despite occasional references to a possible distinction between
jurisdiction and discretion in the operation of CPR r 3.1(7), there
is in all probability no line to be drawn between the two. The rule
is apparently broad and unfettered, but considerations of finality,
the undesirability of allowing litigants to have two bites at the
cherry, and the need to avoid undermining the concept of appeal,
all push towards a principled curtailment of an otherwise
apparently open discretion. Whether that curtailment goes even
further in the case of a final order does not arise in this appeal.

(ii) The cases all warn against an attempt at an exhaustive

definition of the circumstances in which a principled exercise of
the discretion may arise. Subject to that, however, the
jurisprudence has laid down firm guidance as to the primary
circumstances in which the discretion may, as a matter of
principle, be appropriately exercised, namely normally only (a)
where there has been a material change of circumstances since the
order was made, or (b) where the facts on which the original
decision was made were (innocently or otherwise) misstated.
(iii) It would be dangerous to treat the statement of these primary
circumstances, originating with Patten J (Lloyds Investment
(Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch) and
approved in this court (Collier v Williams [2006] 1 WLR 1945), as
though it were a statute. That is not how jurisprudence operates,
especially where there is a warning against the attempt at
exhaustive definition.
(iv) Thus there is room for debate in any particular case as to
whether and to what extent, in the context of principle (b) in (ii)
above, misstatement may include omission as well as positive
misstatement, or concern argument as distinct from facts. In my
judgment, this debate is likely ultimately to be a matter for the
exercise of discretion in the circumstances of each case.
(v) Similarly, questions may arise as to whether the misstatement
(or omission) is conscious or unconscious; and whether the facts
(or arguments) were known or unknown, knowable or
unknowable. These, as it seems to me, are also factors going to
discretion: but where the facts or arguments are known or ought to
have been known as at the time of the original order, it is unlikely
that the order can be revisited, and that must be still more strongly
the case where the decision not to mention them is conscious or
deliberate.
(vi) Edwards v Golding [2007] EWCA Civ 416 is an example of
the operation of the rule in a rather different circumstance, namely
that of a manifest mistake on the part of the judge in the
formulation of his order. It was plain in that case from the master's
judgment itself that he was seeking a disposition which would
preserve the limitation point for future debate, but he did not
realise that the form which his order took would not permit the
realisation of his adjudicated and manifest intention.
(vii) The cases considered above suggest that the successful
invocation of the rule is rare. Exceptional is a dangerous and
sometimes misleading word: however, such is the interest of
justice in the finality of a court's orders that it ought normally to
take something out of the ordinary to lead to variation or
revocation of an order, especially in the absence of a change of
circumstances in an interlocutory situation.
[40] I am nevertheless left with the feeling that the cases cited above,
the facts of which are for the most part complex, and reveal litigants,
as in Collier v Williams [2006] 1 WLR 1945, seeking to use CPR r

3.1(7) to get round other, limiting, provisions of the civil procedure

code, may not reveal the true core of circumstances for which that
rule was introduced. It may be that there are many other, rather
different, cases which raise no problems and do not lead to disputed
decisions. The revisiting of orders is commonplace where the judge
includes a Liberty to apply in his order. That is no doubt an
express recognition of the possible need to revisit an order in an
ongoing situation: but the question may be raised whether it is
indispensable. In this connection see the opening paragraph of the
note in the White Book at para 3.1.9 (Civil Procedure 2012, vol 1, p
60) discussing CPR r 3.1(7), and pointing out that this omnibus
rule has replaced a series of more bespoke rules in the RSC dealing
with interlocutory matters.
[41] Thus it may well be that there is room within CPR r 3.1(7) for a
prompt recourse back to a court to deal with a matter which ought to
have been dealt with in an order but which in genuine error was
overlooked (by parties and the court) and which the purposes behind
the overriding objective, above all the interests of justice and the
efficient management of litigation, would favour giving proper
consideration to on the materials already before the court. This
would not be a second consideration of something which had already
been considered once (as would typically arise in a change of
circumstances situation), but would be giving consideration to
something for the first time. On that basis, the power within the rule
would not be invoked in order to give a party a second bite of the
cherry, or to avoid the need for an appeal, but to deal with something
which, once the question is raised, is more or less obvious, on the
materials already before the court.
[42] I emphasise however the word prompt which I have used
above. The court would be unlikely to be prepared to assist an
applicant once much time had gone by. With the passing of time is
likely to come prejudice for a respondent who is entitled to go
forward in reliance on the order that the court has made. Promptness
in application is inherent in many of the rules of court: for instance
in applying for an appeal, or in seeking relief against sanctions (see
CPR r 3.9(1)(b)). Indeed, the checklist within CPR r 3.9(1) must be
of general relevance, mutatis mutandis, as factors going to the
exercise of any discretion to vary or revoke an order.
111.

RM contends that this is a case which involves the primary circumstance of

a material change in circumstances, that it is undoubtedly out of the
ordinary and that the courts discretion is accordingly engaged.

112.

In relation to the exercise of that discretion, RM contends that in

circumstances where there is good reason to believe that his then solicitor was
acting against RMs interests at the time that the orders were made, it would
be just and in accordance with the overriding objective to set aside those
orders. RM also points out that contempt proceedings are to be regarded as

the trial of a criminal charge for the purposes of section 6 of the Human Rights
Act 1998 - see In the Matter of Ravinder Balli [2011] EWHC 1736 (Ch) at
[21]. Article 6(3) ECHR, and its minimum fair hearing rights, is accordingly
engaged.
113.

RM also relies by analogy on criminal appeal case law in which a conviction

is found to be unsafe as a result of alleged incompetent representation. As is
stated in Archbold 2014 at 7-83 citing R v Day [2003] EWCA Crim 1060:
in order to establish lack of safety in an incompetence case, the
appellant has to show that the incompetence led to identifiable errors or
irregularities in the trial, which themselves rendered the process unfair or
unsafe.

114.

RM also relies on Boodram v The State [2001] UKPC 20, [2002] 1 Cr App
Rep 103 in which it was held by the Privy Council that where the failings were
so fundamental as to have deprived the defendant of due process, the
conclusion would be that the defendant had not had a fair trial and the
conviction would be quashed without embarking on an enquiry as to the
impact of the failings. As Lord Steyn stated at [39]:
Where counsels conduct is called in question the general principle
requires the court to focus on the impact of the faulty conduct: R. v.
Clinton (1993) 97 Cr.App.R. 320, [1993] 1 W.L.R. 1181; Sankar v. State of
Trinidad and Tobago [1995] 1 W.L.R. 194. On the other hand, as the Chief
Justice observed, there may be cases where counsels misconduct has
become so extreme as to result in a denial of due process to his client.
The Chief Justice gave examples including the case where counsel
conducted the defence without having taken his client's instructions.
Substantively, the Chief Justice explained:
In such a case, the question of the impact of counsel's conduct on
the result of the case is no longer of any relevance, for whenever a
person is convicted, without having enjoyed the benefit of due
process, there is a miscarriage of justice regardless of his guilt or
innocence. In such circumstances the conviction must be quashed.
It is not difficult to give hypothetical examples of how such a
situation might occur.
Such cases are bound to be rare. But when, exceptionally, they do occur
the conclusion must be that there has not been a fair trial or the appearance
of a fair trial. Their Lordships would respectfully endorse the formulation
of the Chief Justice.

115.

RM submits that this is not just a case involving incompetence. It is a case of

incompetence where there is good reason to believe that RMs legal
representative was acting against his interests at the time.

116.

The Claimant submits that it has not been proved (1) that there has been a
material change of circumstances; or (2) that any such change of
circumstances caused orders to be made that otherwise would not have been

made; or (3) that this is an appropriate case for the court to exercise its
discretion to set aside its earlier orders.
117.

It points out that Mr Bensons fraud in relation to the conduct of the fictitious
litigation (the litigation fraud) occurred after the orders which are sought to
be set aside and is therefore not in itself material. What needs to be proved is
fraud in relation the conduct of the real litigation (sabotage fraud) and that
this cannot be proved, nor is it suggested that it can be on the materials before
the court which are, moreover, being considered in the context of a summary
procedure. The highest it is put is that there is good reason to believe that
Mr Benson was acting against RMs interests and that is insufficient.

118.

The Claimant relies by analogy on CPR r.52.11(3)(b) which states that the
appeal court will only allow an appeal on the grounds of procedural unfairness
or irregularity where the decision of the lower court was unjust because of
a serious procedural or other irregularity. This requires, it submits, proof that
there was an irregularity; not proof that there may have been.

119.

The Claimant further emphasises the need to show that the conduct impacted
on the decision made, and submits that this is not made out in this case.

120.

The Claimant further submits that even if the courts jurisdiction under CPR
r.3.1(7) is engaged this is not an appropriate case for the court to exercise its
discretion given, in particular, the fact that RM is a judgment debtor and
enforcement resistor of the worst type, as judicially found. It places
particular reliance on David Steel J.s observations in his judgment of 4
October 2010 in which he dealt with the terms of the ACO at [8]:
So far as the sanction is concerned, I make these observations. This is a
worrying case in the sense it is a disturbing commentary on the powers of
enforcement of this court. The relevant judgment was handed down nearly
a decade ago and despite the defendant recognising his ability to meet the
judgment not a cent has been paid. As I have said in my judgment, the
defendant has, to the contrary, embarked on a prolonged and expensive
campaign to avoid payment and resist the enforcement procedures and a
significant part of this process has been the persistent and the flagrant
refusal to produce the documents required by the order of Master Miller
over a pretty long period.

Application to the facts

121.

I accept that there is no evidence to show that Mr Bensons alleged

misconduct had any impact on court orders other than the SCO and the ACO.
Indeed there has been no attempt to show any specific link between his
conduct and those orders, nor has any specific criticism been made of Mr
Bensons conduct in relation to those orders. In those circumstances I accept
that it has not been proved that there has been any material change in
circumstances relevant to those orders or that this is otherwise an appropriate
case for the court to set them aside.

122.

Detailed submissions as to alleged misconduct have, however, been made in

relation to both the SCO and the ACO.

123.

RMs submissions are based on the documents and the evidence of Mr

Sanghvi. I have not received any evidence or representations from Mr Benson
or Byrne & Partners. It also appears that RM may not have been provided
with the full files of Byrne & Partners. Any findings I make on the evidence
currently before the court for the purpose of the present application must be
understood in the light of those limitations.

124.

In relation to the SCO the key criticisms made are as follows:

(1) Mr Benson failed to send to RM or Mr Sanghvi correspondence with
Norton Rose in September and October 2008. One result of this was that
RM was unaware of a deadline of 15 September 2008 for the swearing of
his legal costs funding affidavit which had been imposed by David Steel
J.s order of 8 September 2008. This was an aspect of the order in relation
to which RM and Mr Sanghvi believed an application for permission to
appeal and a stay had been made by Mr Benson, as instructed, but neither
had been.
(2) Mr Benson did not, in November 2008, provide RM or Mr Sanghvi with
correspondence with Norton Rose in relation to a revised date for the
swearing of the legal costs funding affidavit.
(3) Mr Benson failed to forward to RM or Mr Sanghvi a witness statement
served on 12 November 2008 on behalf of the Claimant, which itself
referred to correspondence in March and April 2008 relating to an
allegation of perjury that had not been provided to RM or Mr Sanghvi and
so was unanswered.
(4) Mr Benson failed to inform RM that by an order of 13 November 2008
David Steel J. had directed RM to provide the legal costs funding affidavit
by 26 November 2008.
(5) Mr Benson failed to tell RM or Mr Sanghvi that he was required to serve a
witness statement 10 days before an examination hearing on 24 April
2009, and as a result this deadline was not complied with causing
prejudice.
(6) Mr Benson allegedly failed until 5 May 2009 to forward to RM or Mr
Sanghvi a letter from Norton Rose dated 29 April 2009 apparently
recording documents RM had agreed to seek out and disclose during the
course of his examination of 24 and 27 April 2009 (this was disputed on
the basis of RMs own evidence in cross examination). This allowed the
Claimant to complain in a witness statement dated 5 May 2009 for a
hearing the following day that the letter had not been responded to.
(7) Mr Benson failed, until the day before a further hearing on 22 July 2009,
to forward a skeleton argument lodged on behalf of the Claimant for the
hearing on 6 May 2009 which contained assertions with which RM would

have wanted to instruct counsel to take issue, and would have wanted to
address in evidence prior to the hearing of 22 July 2009. Further, neither
RM nor Mr Sanghvi were provided with all the material which the
Claimant had placed before the court on the hearing of 6 May 2009.
(8) Mr Benson failed properly to inform RM or Mr Sanghvi about what had
transpired at the hearing of 6 May 2009. Of most significance, Mr Benson
failed to inform RM or Mr Sanghvi that an order had been made requiring
RM to provide the documents referred to in Norton Roses letter of 29
April 2009 by 20 May 2009. It was only on 21 May 2009 that Mr Benson
informed RM and Mr Sanghvi that there had been such a deadline. This
failure to inform RM of the deadline, and then the failure of Mr Benson to
take any steps to ensure that RM complied with the deadline, ultimately
led to significant prejudice being built up against RM who, from the
perspective of the Court had wilfully disobeyed another order,
compounding the failure to provide the legal costs funding affidavit back
in November 2008, which failure can also be attributed to Mr Benson.
(9) Mr Benson failed during May and June 2009 to forward to the Claimant
documents which RM had provided to him in relation to his response to
matters set out in Norton Roses 29 April letter, and which he believed
were being forwarded on an ongoing basis in compliance with his
obligations.
(10) Mr Benson led RM and Mr Sanghvi to believe that during June 2009
that a consolidated letter bringing together all the documents and
information RM had agreed, and had attempted, to locate and provide, in
compliance with the order of 6 May 2009, had been finalised and sent to
Norton Rose. In fact, no such letter had been sent by Mr Benson. This
was a significant failure which prejudiced RM in the courts eyes, because
it then appeared to the Court that RM had only attempted to comply with
the order of 6 May on the eve of the resumed oral examination on 22 July
2009.
(11) On 14 July 2009 Mr Benson was instructed to make an application for
an adjournment of the committal hearing listed for 23 July (but not the
examination the previous day). No application was made.
(12) Despite being served with a copy of a witness statement on behalf of the
Claimant on 17 July 2009 which stated inter alia that RM had provided no
documents since 6 May (contrary to RMs belief that the consolidated
letter had been sent in June), Mr Benson failed to provide it to RM in
advance of the examination of 22 July 2009. The witness statement also
contained factual allegations with which RM would have wished to take
issue, and would have wanted to know about in advance of the resumed
examination, including the untrue allegation that RM was an international
diamond trader. This allegation, which was therefore allowed to go unrefuted, subsequently became significant in the context of David Steel J.s
later finding of contempt.

(13) Mr Benson failed to provide to RM in advance of the resumed

examination on 22 July 2009 with two large bundles of material which had
been sent to him in advance (on 20 July) by Norton Rose which they
proposed to refer to at the oral examination. Nor was RM provided with
copies of the skeleton arguments exchanged prior to the examination.

125.

The essence of the criticisms made is that Mr Bensons failures allowed an

unfairly prejudicial picture of RM to be built up and that he was severely
prejudiced in his preparations for giving evidence and in the presentation of
his case at the April and July 2009 hearings.

126.

Even if one accepts all the criticisms made there are a number of difficulties
with RMs case. In particular:
(1) None of these failures could have affected David Steel J.s finding that RM
had been in contempt in his complete failure to comply with Master
Millers order of 17 January 2007. He had been ordered to produce the
documents for a hearing of 11 March 2008. He failed to produce any
documents. That pre-dates any of the criticisms made of Mr Benson.
(2) David Steel J.s finding that RM had failed to purge his contempt was an
emphatic one:

73 It was the Bank's position that there had been large scale nondisclosure of documents, a proposition supported by the production of
a number of documents by the Bank which were copies of documents
manifestly within RM's control. Some of these were put to RM in the
course of the examination. Even then a complete documentary picture
of a number of RM's interests remains wholly unrevealed.
74 In particular, as emerged from his oral examination there are a
number of matters involving RM which cry out for further
documentary disclosure:
i) Relationship with UBS, Barclays and Mashreqbank.
ii) Relationship with various BVI companies.
iii) Relationship with Valuable Resources Ltd and the dissipation of
substantial proceeds of settlement of litigation relating to Jet airways.
iv) Relationship with Group Beautiful.
RM's responses to questions on these topics and his reaction to various
documents put to him revealed RM at his most obscure and
unconvincing.
(3) A finding in these terms is most unlikely to have been substantially
affected by prejudicial preparation and presentation. It is not a finding at
the margins.

(4) RM had the opportunity in evidence to meet the non-disclosure complaints

made. If there were answers to them then he ought to have been able to
provide them regardless of prejudice in preparation. It is clear from David
Steel J.s findings that he failed to do so see in particular [51] of his
judgment in which he stated that:

I regret to say that my reaction is few witnesses have instilled

still less confidence in their testimony whether from the
perspective or reliability or completeness. Throughout he was
evasive and unconvincing. Save where unchallenged, I would be
hesitant to accept any of his evidence absent corroborative
material.
(5) David Steel J.s findings that RM was in contempt and that he had failed to
purge that contempt were upheld on appeal.
(6) He was represented at the hearings by counsel who would have been able
to ensure that his case was properly presented. No complaint is made
about counsel.
(7) Although an unfairly prejudicial picture of RM might influence sentence,
the sentence imposed was well within the range of available sentences, as
the Court of Appeal held.

127.

It is also relevant to bear in mind that throughout this period RM was

represented by counsel. Moreover, on appeal he was represented by leading
and junior counsel and, as is apparent from the Court of Appeal judgment,
every possible point which could be taken was taken. At least some of the
above complaints/criticisms would have been apparent by then, but they were
not raised on appeal.

128.

Further, these events also took place at least 15 months before the
commencement of the fictitious litigation and the first proven instance of fraud
by Mr Benson. Whilst there is some force in RMs general point that it is
inherently unlikely that Mr Bensons fraud suddenly commenced on 5 October
2010, that is a stronger point the nearer in time one comes to October 2010.

129.

Even if one accepts that there was misconduct by Mr Benson as alleged, in all
the circumstances I am not satisfied that it has been shown that there is good
reason to believe that he was acting against the interests of RM at that time. It
has also not been shown that such misconduct impacted the order made.

130.

For all these reasons I am not satisfied that it has been shown that there has
been a material change in circumstances or, if there has been, that it is
sufficient to warrant setting aside the SCO, an order upheld on appeal.

131.

In relation to the ACO the key criticisms made are as follows:

(1)

RM had instructed Mr Benson in about December 2009 to

follow up letters to third parties with requests for
information and / or documents which had not been
provided by November 2009, and which might be important
to prove RMs compliance. It appears that Mr Benson took
no steps to chase these third parties, despite the importance
of being able to demonstrate to the Court that RM was
doing all he could to obtain documents he was required to
disclose if possible.

(2)

From April 2010, despite instructions to do so, Mr Benson

failed to press Norton Rose for specificity in relation to
what it was alleged RM had not disclosed, so that this could
be specifically addressed. This is despite him having told
RM that he had sent correspondence to this effect.

(3)

After 14 April 2010 Mr Benson failed to heed important

advice from counsel to take steps to consolidate all
documents that RM had provided to the Claimant and
provide a very comprehensive affidavit from RM
demonstrating that the documents and information provided
did amount to compliance.

(4)

In August 2010 RM was diagnosed with a serious heart

problem, and on 16 August 2010 he instructed Mr Benson
to apply for the adjournment of the committal proceedings
(not by then listed, but ultimately listed to be heard on 4
October 2010). RMs lawyer in India had also already
conveyed the same instructions to Mr Benson on 12 August
2010. Mr Benson failed to make any application for an
adjournment.

(5)

Notwithstanding his instructions to seek an adjournment,

Mr Benson allowed the hearing date to be fixed on or about
2 September 2010 without any request for adjournment
being made.

(6)

He did not inform RM or Mr Sanghvi of the fixing of that

hearing until 24 September 2010. He then described it as a
major problem and gave the false impression that he had
only just learned about it. There is no good explanation for
his failure to inform RM (or Mr Sanghvi) at any time
between 2 September 2010 and 24 September 2010 that a
hearing had been listed for 4 October 2010, particularly
knowing that RM was in India, had a severe heart
condition, and had provided instructions to seek an
adjournment of the proceedings before the hearing had been
listed. He also gave them the false impression that he had
asked the court to adjourn the matter but that the evidence
had not persuaded the Court.

132.

(7)

Mr Benson delayed sending to RM and Mr Sanghvi the

application bundle of about 400 pages served by the
Claimant in advance of the 4 October 2010 hearing: it had
been served on 17 September 2010, but was only provided
on 30 September 2010. It included an important 8th
Affidavit of Mr Walton which explained the respects in
which it was claimed that RM had still failed to comply
with his obligation to provide documents.

(8)

Once informed about the hearing listed for 4 October 2010

RM (who was in India receiving treatment) gave repeated
further instructions to Mr Benson to seek an adjournment
on the basis of his poor health. Mr Benson failed to comply
with those instructions. Instead, at the hearing of 4 October
2010 he attended without counsel, informed the court that
he had no formal instructions, but asked David Steel J. to
have regard to an affidavit sent to the court by Rajeshs
mother explaining his health condition. This was contrary
to the instructions he had been given which were to seek an
adjournment and, if that was not forthcoming, to make
substantive submissions as to why no committal order
should be made, particularly in the light of the lack of
specificity in the Claimants claim that RM had not
complied with his obligation to provide documents.

Mr Sanghvi summarises the position as follows:

530. In summary, in my view the conduct of Mr Benson in relation to the
hearing of 4 October was extraordinary. Simply put, having been
instructed to apply for an adjournment, he did not instruct counsel to do so
but merely attended the hearing, told the court he was without instruction,
and placed beforethe court the further medical report of 29 September,
details of the application that took place in India, and the affidavit sworn
by Rajeshs mother explaining his ill health. What is more, as I have
explained above, he had not done the things he had been instructed in the
12 months or so prior to that hearing to try to ensure that the court could be
persuaded of Rajeshs compliance with Mr Justice Steels order of 1
October 2009.

133.

The evidence presently before the court justifies the criticisms made. These
include a failure to prepare evidence for the hearing as instructed and advised
by counsel; a failure to apply to the Court for an adjournment of the hearing
on the grounds of RMs serious ill health; misrepresenting the position in
relation to the fixing of the hearing; giving the false impression on 24
September 2010 that an adjournment had been sought but refused by the
Court; delaying in providing important evidence from the Claimant to be
considered by the Court at that hearing; failing to ensure that there was any
evidence in response; failing to instruct counsel to attend the hearing; wrongly

informing the Court at the hearing that he was appearing without instructions;
failing to follow those instructions by seeking an adjournment and, if that was
refused, making positive submissions as to why no committal order should be
made.
134.

These criticisms involve serious misconduct by Mr Benson in the preparation

for and the conduct of this very important hearing. Notwithstanding David
Steel J.s understandable scepticism towards RM, his evidence and his last
minute applications, I am satisfied that these failures significantly impacted on
the order made and that an order would not have been made in the same terms
had the Court been given a full and accurate picture of the position.

135.

By way of example:
(1) David Steel J. observed at paragraph 2 that:

2. Mr Trace QC, on behalf of the claimants, has taken me through

the eighth affidavit of Mr Walton and the exhibits thereto. It is plain
from that evidence that Mr Mehta has in fact produced either no
documents at all post October 2009 or possibly one or two documents
of very modest consequence. What he has done, in pretty cynical
disregard of the order, is simply to furnish further copies of a range of
documents which were already before the court and in respect of which
the only really material documents were documents that had originally
been produced by the claimants themselves. In the result, there really is
no doubt in my judgment that he has failed to respond to the order for
production and thus, on the face of it, the justification for suspending
the committal for nine months has disappeared.
If the third party inquiries and responses had been chased up and
evidenced; if the comprehensive affidavit advised by counsel had been
prepared; if RM and Mr Sanghvi had been given a proper opportunity to
respond to the specific points made by Mr Walton, and if Mr Benson had
produced the response which was obviously needed to that affidavit, the
Judge is most unlikely to have commented in these terms or to have made
the same critical findings.
(2) David Steel J. observed at paragraph 3 that:

3. Mr Mehta is not present here today. That was a condition of the

order and he has clearly received adequate notice of this hearing, albeit
he affords some possible explanation of his absence. But one has to
observe that although for many years now he has been enabled to
retain solicitors, leading counsel and junior counsel at a whole range of
hearings, he has chosen not to give instructions to his retained
solicitors on the record let alone make arrangements for submissions to
be made on his behalf by counsel. There is no material before me
which explains why that particular course of action has been adopted.

He could not have made those comments if Mr Benson had not

misrepresented the position to him. Far from choosing not to give Mr
Benson instructions, RM and Mr Sanghvi had given him positive
instructions to seek an adjournment, alternatively to make submissions as
to why no committal order should be made.
(3) David Steel J. observed at paragraphs 8 and 9:

8. It is, to put it mildly, very surprising that this material (the medical
evidence) suddenly sees the light of day, so far as this application is
concerned, on the eve of the hearing, although it is, if I may
respectfully say so, part and parcel of the way in which Mr Mehta has
conducted these proceedings for many years; namely, to leave matters
to the last minute and the seek to ambush the claimants with regard to
new material combined with applications for adjournment and so on.
9. It does not seem to me that there is any conceivable basis upon
which Mr Mehta could not have given appropriate instructions to his
solicitors and counsel to develop the need for an adjournment rather
than simply rely upon medical evidence of some antiquity, which was
never brought to the attention of the claimants until the eve of the
hearing. It does not seem to me in those circumstances that an
adjournment can be remotely appropriate.
He could not have made these comments if Mr Benson had sought an
adjournment in August 2010, as he had been instructed to do. These
comments also show that no adjournment had previously been sought from
the Court, contrary to what Mr Benson had claimed, and that this was
being held against RM.
136.

Given my findings as set out in paragraphs 133-135 above and, in particular:

(1) the seriousness of the alleged misconduct; (2) the length of time over
which it occurred; (3) Mr Bensons misrepresentations to RM; (4) Mr
Bensons misrepresentation (as to instructions) to the Court; (5) his failure to
follow instructions before and for the hearing; (6) his failure to instruct
counsel (for whose convenience the hearing had been fixed) and his decision
to appear on his own; (7) the fact that his clearly evidenced fraudulent conduct
commenced within two weeks of the hearing, and (8) the nature, extent and
sophistication of that fraud, I am satisfied that RM can show on the evidence
currently before the Court that there is good reason to believe that Mr Benson
was acting against the interests of RM in relation to the preparation for and
conduct of this hearing.

137.

In the light of my findings on the present evidence as outlined above I am

satisfied that RM has shown a material change in circumstances. In addition
to the litigation fraud, there is evidence of serious misconduct by Mr Benson
in the preparation for and conduct of the ACO hearing and good reason to
believe that Mr Benson was acting against RMs interests in that regard. That
misconduct had a significant impact on the outcome of the hearing and, had it
not been for that misconduct, either no order would have been made (because

the hearing would have been adjourned) or an order would not have been
made in the same terms. The facts on which the decision was made were also
misstated in that the court was wrongly told that Mr Benson was without
instructions a further primary circumstance recognised in the Tibbles case.
138.

For all these reasons I am satisfied that in relation to the ACO the case falls
within the primary circumstances in which the courts jurisdiction under CPR
r.3.1 (7) may be exercised, as explained in the Tibbles case.

Discretion
139.

The Claimant submits that even if this case does engage the Courts
jurisdiction under CPR r.3.1(7) no setting aside order should be made as a
matter of discretion. It relies in particular on the following:
(1) RM was and remains a judgment debtor, who has not paid a cent of his
liabilities. There is no possible suggestion of misconduct before Byrne &
Partners first involvement in late June 2007. The judgment extends back to
2002, years before Byrne & Partners became involved.
(2) Despite paying the Claimant nothing, it is known that, between 2 July 2007
and 12 November 2008, two opaque companies called Douglas Corporation
and International Luxury Distribution apparently paid Byrne & Partners fees
in the sum of 271,582. RM has therefore been able to find considerable
sums to spend on fighting these enforcement proceedings instead of paying
(even in part) his obligations pursuant to the judgment or any order for costs
since Tomlinson J.s Judgment. Taking into account payments on account and
summary assessments only, RMs unpaid liabilities for costs total at least
386,183.48.
(3) It is common ground that RM has the means to pay the judgment. This was
recorded by David Steel J. in his 1 October 2009 judgment at [51] and
repeated by the Court of Appeal at [4] of their judgment. Despite this RM has
taken no steps to make even part payment. RM remains someone who, to use
Toulson LJ.s phrase, thumbs his nose at the court.
(4) David Steel J. and the Court of Appeal were clearly satisfied that RM was a
deliberate and chronic contemnor. At various times in 2008 and 2009, RM
was in multiple contempt for failure to produce documents, failure to answer
written questions posed to him, failure to disclose full particulars of his legal
expenses funding, failure to sign bank authorities and failure to keep his
affidavit of assets updated. RM has still failed to disclose all the documents
required by the Master Millers order of 16 January 2007 (and given greater
specificity in the order of David Steel J. of 6 May 2009).
(5) RM has not chosen to give any evidence himself but continues to use his
lawyers as a buffer between himself and the Court.
(6) RM is a continuing contemnor in other respects. He remains subject to a
freezing order made on 29 October 2001, increased by Langley J. on 21
November 2001 and continued by Tomlinson J. post judgment but he has
continually declined to give proper details of his legal expenses funding or set
out his up to date asset position. His position on legal expenses, has always
been that his parents are supporting him, but the existence of the opaque

Dubai companies, Douglas Corporation and International Luxury Distribution

raises questions about that. It should be inferred that RM is funding himself
using his considerable financial resources as an international diamond
dealer.
(7) Between 25 March 2007 (the date when RM failed to evade personal service
of the Order of Master Miller dated 16 January 2007 on him) and April 2009,
RM provided no documents at all to the Claimant. This shows that RM was
simply intent on blocking the CPR 71 process.
(8) The Claimant is an entirely innocent judgment creditor, who has been put to
considerable expense by RMs manoeuvring and obfuscation over many
years.
(9) In considering the balance between the Claimants interests and RMs
interests in the light of the history of the matter, there was not anything wrong
or unjust about any of the orders made between 2007 and 2010, including the
SCO and the ACO.

140.

There is force in a number of these points, particular RMs long history as a

judgment debtor and enforcement resistor. However, the point is made on his
behalf that it is only common ground that he has the means to pay the
judgment in the sense that the Indian assets disclosed by him in his affidavit in
response to the freezing order should have been sufficient to meet the
judgment debt. There is evidence, however, of third party claims to those
assets and to resulting difficulties in enforcement. RMs position is that he
does not have assets beyond those already disclosed and that his legal and
living expenses are paid by his parents. It is also denied that he is or ever has
been an international diamond dealer. It is further denied that he is in breach
of the freezing order in failing to provide information in relation to the
payment of legal expenses. That applies to expenses paid out of his own
funds, but his expenses are not being so paid. RM insists that he can and will
demonstrate compliance with the disclosure orders made and the essence of
the relief he seeks is to have a proper opportunity to do so, as he thought was
being afforded to him during the fictitious litigation. Further, it will be to the
Claimants advantage to have a clear, definitive and up to date disclosure and
asset statement.

141.

In an ordinary case there would be strong grounds for imposing conditions on

the exercise of any discretion in favour of RM, as indeed has been done in the
past. However, by definition this case is out of the ordinary. Indeed it is at
the extreme limits of what is out of the ordinary. It is a case which raises
serious concerns about the circumstances in which the ACO was made and in
relation to which it has been shown that there is good reason to believe that
RMs own solicitor, a man who has been shown to be dishonest, was acting
against his interests. It is axiomatic that justice must be both done and seen to
be done. In the circumstances of the present case in my judgment that
requires the setting aside of the ACO unconditionally.

Conclusion

142.

For the reasons outlined above I grant RMs application in relation to the ACO
but refuse the application in relation to all other Court orders.