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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Otkritie International Investment Management Ltd & Ors v Jemai [2016] EWCA Civ 1316 (21 December 2016) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/1316.html Cite as: [2016] EWCA Civ 1316

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
MR JUSTICE FLAUX and MR JUSTICE EDER

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2016

Lady Justice Gloster:

Introduction

1. This judgment relates to the following matters before the Court in which Mrs Olessia Jemai ("Mrs Jemai") is the appellant or the applicant:

i) Mrs Jemai's appeal against the order of Flaux J dated 26 June 2015 ("the Flaux order") dismissing her application to set aside the order of Eder J made on 25 March 2015 and referred to below;

ii) Mrs Jemai's appeal against the order of Eder J dated 25 March 2015 ("the Eder contempt order") committing her to prison for 20 months for four contempts of court in connection with her defence of the claims by the respondents Otkritie International Investment Management Ltd and others ("the claimants") against Mrs Jemai's Swiss company, Jecot SA ("Jecot"), the fourteenth defendant; the order was suspended until 9 April 2015 pending an application by her to discharge or vary the order;

iii) Mrs Jemai's applications for permission to appeal and extensions of time in relation to the order of Eder J made on 18 February 2015 dismissing her application for a declaration that the Court has no jurisdiction to hear the claims against her and entering judgment against her in the principal sum of US$3.25 million;

iv) Mrs Jemai's applications for permission to appeal and for an extension of time in relation to the unless order of Eder J made on 4 February 2015 in what have been referred to as the costs proceedings;

v) Mrs Jemai's applications for permission to appeal and for an extension of time in relation to the provision for alternative service in the order of Eder J made on 29 April 2014; and

vi) Mrs Jemai's applications for permission to appeal and extensions of time in relation to the provisions for alternative service in the freezing order of Eder J made on 14 March 2014.

2. In summary, Mrs Jemai's case on the appeals and the applications is as follows:

i) She did not receive proper notice of the committal hearing before Eder J on 20 March 2015 and was consequently unable to defend herself against the allegations of contempt of court.

ii) The alleged contempts of court of which Eder J found her guilty, and which she denies, were not proved beyond reasonable doubt.

iii) The various provisions for alternative service in the earlier orders resulted in her not being properly notified of the proceedings and left her unable to defend herself, in particular against the claims made in the costs proceedings.

3. Mr Andrew Lenon QC appeared on behalf of Mrs Jemai and Mr Nathan Pillow QC and Mr Anton Dudnikov appeared on behalf of the claimants.

Background facts

4. The background to this complex litigation, in particular as it concerns Mrs Jemai and her involvement in, and conduct of, it, was summarised in the claimants' and appellant's skeletons in this appeal. The following summary is adapted from those documents.

The fraud

5. The claimants are part of the Otkritie group ("Otkritie"), which provides financial services in Russia and the United Kingdom. As a result of what Eder J held to be a fraud executed in March 2011, the second claimant purchased 1.65 billion Argentinian government securities ("the warrants") at four times their true value and suffered a loss of some US$150 million ("the fraud"). The fraud was perpetrated by several of Otkritie's employees (Messrs Urumov, Pinaev, Kondratyuk and Jemai) acting in a dishonest conspiracy with Mr Gersamia, who was at the material time employed by Threadneedle Asset Management Ltd.
6. Mr Eugene Jemai is Mrs Jemai's son. He was a relatively junior trader employed by Otkritie and was tasked with entering the fraudulent trades on Otkritie's systems. Mr Jemai was one of the defendants in Commercial Court proceedings ("the fraud proceedings"), which came to trial before Eder J on 12 June 2013, and lasted 46 days. In Eder J's judgment ("the judgment") dated 10 February 2014^[1] Mr Jemai was found to have given dishonest evidence and held liable in deceit, conspiracy, dishonest assistance and knowing receipt.

Jecot and Mrs Jemai

7. Mr Kondratyuk, one of Mr Jemai's co-conspirators, admitted participating in the fraud and using Mrs Jemai to launder some US$36.5 million of the proceeds through Jecot. Mr Kondratyuk settled with the claimants before the trial began and was sentenced by a Swiss court to three years in prison (and released after 18 months).
8. Mrs Jemai was at all material times the majority shareholder, sole director and controller of Jecot. Jecot was joined to the fraud proceedings on 1 March 2012 and a worldwide freezing order was made against it by Flaux J on the same day ("the Jecot WFO"). The next day, the Jecot WFO was sent to Jecot and the Swiss lawyer representing it and Mrs Jemai. Formal service was effected on 23 May 2012.
9. Initially, Jecot took no part in the proceedings. As a result, the claimants issued an application for a judgment in default, which was listed to be heard before Hamblen J on 9 November 2012. Two days before the hearing, Jecot filed an acknowledgment of service, and directions were made for it to catch up with the proceedings.
10. The trial began before Eder J on 12 June 2013. Jecot was initially represented by Byrne & Partners and counsel at all stages until a notice of change of solicitors was served on 25 September 2013. This was signed by Mrs Jemai herself, and gave notice that Jecot would "now be acting in person". She gave an address for service for Jecot of Broadwater, Hampton Court Road, East Molesey, Surrey ("the East Molesey address"), which is a residential property owned by the Peng family. Mr Zeng-Ren Peng is a friend of Mr Jemai, who gave evidence for him at the trial.
11. On the same day – 25 September 2013 – an order was made by a Swiss court declaring Jecot bankrupt. Mrs Jemai did not inform the claimants or the Court about this, and on 1 October 2013, Eder J gave Mrs Jemai permission to continue to act as Jecot's representative. Once the claimants had learned of Jecot's bankruptcy, this was brought to the attention of the Court, and on 14 October 2013, Eder J revoked Mrs Jemai's authority to act on behalf of Jecot. On 22 October 2013 the liquidator of Jecot, Mr Christopher Guenther ("Mr Guenther"), elected not to continue participating in the fraud proceedings.
12. On 21 October 2013, Mrs Jemai wrote to Eder J to inform him that an email address that she had been using to receive emails concerning Jecot ([email protected]) was no longer working and that an alternative email address, [email protected] ("the Jecot email address") should be used instead.

Findings made at trial in relation to Jecot and Mrs Jemai

13. Eder J found that Mr Kondratyuk, through a company which he owned and controlled ("Firmly Oceans"), received around US$36.5 million of the fraud proceeds, of which some US$35.4 million was transferred to Jecot's accounts in Switzerland. US$20 million was then transferred by Jecot to accounts held by Mr Kondratyuk's sister, and c. US$15 million remained with Jecot. Eder J held Jecot liable for laundering the US$35.4 million it had received.
14. Mrs Jemai gave oral evidence over three days of the trial on behalf of Jecot. She was also the individual who signed the statements of truth on Jecot's pleadings and disclosure statements etc. Eder J held that:

i) Mrs Jemai had given dishonest evidence in a number of important respects, including deliberately lying about activity in relation to Jecot's account at Hinduja bank and giving a witness statement (her sixth) that was "substantially and dishonestly untrue".

ii) Mrs Jemai had deliberately destroyed evidence. He said at paragraph 98:

"The Swiss authorities seized Jecot documents and computers, but they remained in Jecot's ownership. Quite apart from Mrs Jemai's failure to provide proper disclosure in relation to these documents (which, in my judgment, she could have done if she had taken the proper steps), Mrs Jemai accepts that Jecot has been unable to give proper disclosure inter alia because she admits that she deliberately tried to destroy the hard drive of Jecot's computer server containing important documents with a hammer (after commencement of these proceedings) purportedly to avoid its confidential information being obtained by debt collectors. In my judgment, that explanation is disingenuous: the very strong inference to be drawn from this extraordinary behaviour is that she was seeking to destroy evidence of nefarious conduct on behalf of Jecot, herself and others including evidence relevant to the present proceedings."

iii) Mrs Jemai had produced and relied upon various fake and/or sham documents, and deliberately suppressed information (such as metadata) in order to prevent the truth coming out.

iv) From the "material currently available" to him, he took the view that

"it also seems beyond doubt that Mrs Jemai deliberately breached this Court's freezing orders (i.e., the Jecot WFO) and the Swiss authorities' sequestration of Jecot's bank accounts".

v) Mrs Jemai's role in the money-laundering scheme and Jecot's liability was as follows:

"In summary and for all these reasons, it is my conclusion that on the introduction of Mr Jemai, Mr Kondratyuk and Mrs Jemai/Jecot agreed on a plan to launder Mr Kondratyuk's share of the proceeds i.e. US$35.4m; and that when Jecot received these monies from Mr Kondratyuk via Firmly Oceans (and at all material times thereafter), Mrs Jemai and therefore Jecot knew that such monies were the proceeds of fraud or, at the very least, suspected that that was the case and deliberately refused to ask obvious questions lest she/Jecot discovered the truth; and that Mrs Jemai/Jecot then dishonestly provided Mr Kondratyuk with dishonest assistance in laundering that money so as to hide it and to put it out of reach of the claimants. On this basis, Jecot is liable to OSL/OFC/OML for damages and/or equitable compensation in the sum of US$ 35.4m and/or an account on the basis of dishonest assistance, procuring breach of contract alternatively knowing receipt."

See paragraph 542 of the judgment.

Subsequent proceedings including the committal proceedings

15. Following the trial, with the permission of Eder J where required, on 11 March 2014 the claimants instituted committal proceedings against Mrs Jemai (as well as against Mr Urumov, Mr Pinaev and Mr Gersamia) ("the first committal application"). As against Mrs Jemai, the claimants alleged that she had:

i) made a false disclosure statement (verified by a false statement of truth); disclosed as genuine documents which she knew were fakes or shams or both; and failed to disclose documents she knew Jecot was required to disclose; (referred to as ground 2);

ii) made (or caused to be made) false statements in statements of case (for each of which she signed a false statement of truth) without an honest belief in their truth; (referred to as ground 3);

iii) dissipated assets in breach of the Jecot WFO; (referred to as ground 4).

16. At a hearing on consequential matters on 14 March 2014 (of which Mrs Jemai had notice but which she did not attend), Eder J gave a judgment ("the Jecot costs judgment")^[2] in which (inter alia):

i) he ordered that Jecot should pay US$36.4 million in respect of laundered funds plus interest and costs; the costs which Jecot was ordered to pay were 25% of the total;

ii) he ordered Mrs Jemai to be joined as the 20th defendant for the purposes of the claimants seeking an order in the costs proceedings that she be personally liable for the costs which he had ordered Jecot to pay;

iii) he gave the claimants permission to serve any claim form, application notice, order or any other document in the costs proceedings on Mrs Jemai at the East Molesey address with a copy by email to [email protected] i.e. the addresses previously given as addresses for service of Jecot; he also gave the claimants permission to dispense with personal service;

iv) he gave the claimants permission to serve the applications for permission to bring committal proceedings and the applications themselves in the same way; and

v) he made a worldwide freezing order against Mrs Jemai personally (one was already in place against Jecot), including the usual asset disclosure obligations ("the OJ freezing order"); the claimants were likewise given permission to serve the order on the East Molesey address and the Jecot service addresses.

17. On 24 April 2014 Mrs Jemai sent an email to the claimants' solicitor, Mr Neil Dooley from her email address [email protected] ("the first OJ email address"). The claimants' evidence is that Mr Dooley then sent a copy of the OJ freezing order to that address.
18. Despite her admission that she was on notice of the OJ freezing order in April 2014, Mrs Jemai made no attempt to comply with it, including her asset disclosure obligations, over the next 18 months – until just before filing her original skeleton argument for this hearing ("the OJ original skeleton") in November 2015.
19. On 28 April 2014 Mrs Jemai wrote to Eder J by email asking him not to consider any application against her until she had been properly served in accordance with the Hague Convention. On 29 April 2014 Eder J recused himself from hearing the committal applications following allegations of bias by Mr Urumov. By paragraph 14 of an order of that date, he gave permission to the claimants to serve any claim form or application on Mrs Jemai by email to the first OJ email address.
20. On 10 June 2014 Walker J gave permission to the claimants to serve the claim form in the costs proceedings on Mrs Jemai at her address in Geneva by judicial channels. This was served in accordance with the Hague Convention and received by Mrs Jemai on 4 November 2014.
21. On 14 October 2014 the Court of Appeal allowed the claimants' appeal against the decision of Eder J to recuse himself and reinstated him.
22. On 24 November 2014 Mrs Jemai returned the Acknowledgement of Service form stating that she intended to contest jurisdiction.
23. On 18 December 2014 Mrs Jemai wrote to the Commercial Court asking for additional time to contest jurisdiction from the email address [email protected] ("the second OJ email address"). On 19 December 2014, Mrs Jemai sent as an attachment to an email an application notice to the Court requesting an extension of time for contesting jurisdiction, giving as her email address the second OJ email address. There is no evidence that any of this email correspondence containing a reference to the second OJ email address was copied either by Mrs Jemai or by the Court to the claimants' solicitors contemporaneously. Likewise, it is clear that the jurisdiction application notice was not in fact seen by the claimants until her email of 27 March 2015.
24. Additionally, on 19 December 2014 the claimants issued a second committal application against Mrs Jemai alleging two further grounds, namely breaches of the Jecot WFO in failing to provide asset disclosure and other information (referred to as ground 5) and operation of a secret Jecot account by which proceeds of the fraud had been dissipated (referred to as ground 4). The claimants' evidence is that copies of the application and the evidence were sent to the Jecot email address and the first OJ email address.
25. On 12 January 2015 Teare J granted Mrs Jemai an extension of time for challenging jurisdiction until 31 January 2015 on her ex parte application. The court's direction was notified to Mrs Jemai on 20 January 2015 by email sent by the court to Mrs Jemai's second OJ email address. The claimants' solicitors were not copied into that email from the court. The formal sealed order was sent to Mrs Jemai's second OJ email address by the court on 21 January 2015 but again the claimants' solicitors were not copied in contemporaneously.
26. Both the claimants' application for permission to bring the second committal application, which came before the court on 4 February 2015, and the applications for committal, which came before the court on 20 March 2015, were served on Mrs Jemai by service on both the Jecot e-mail identified in Eder J's original order and the first OJ email address which had been identified in subsequent orders.
27. On 3 February 2015, the claimants' solicitors received (by post only) the application made by Mrs Jemai in the cost proceedings seeking a declaration that the English Court had no jurisdiction. The application attached the formal sealed order made ex parte by Teare J dated 12 January 2015 (which had not previously been seen by the claimants) extending the time for Mrs Jemai to serve an application contesting jurisdiction and referred to the application notice dated 19 December 2014, seeking the extension of time, which likewise the claimants' solicitors had not seen as at that date, and indeed did not see until 27 March 2015. The claimants' solicitors did not notice at the time that the jurisdiction application notice had a reference to the second OJ email address.
28. On 4 February 2015 Eder J made an order ("the unless order") that unless, inter alia, by 11 February 2015, Mrs Jemai complied with her asset disclosure obligations under the OJ freezing order, and filed a CPR-compliant acknowledgment of service which included an address for service in an EEA state, she would be debarred from defending the costs proceedings and that the claimants would be at liberty to enter judgment against her without further order. He also gave directions for the further hearing of her jurisdiction application in the event that she complied with the order. He also gave permission to the claimants to bring committal proceedings in respect of grounds 2 and 3 (full statements of truth/disclosure statements) to be managed together with grounds 1, 4 and 5 (breaches of freezing orders) and gave directions. No permission to serve these proceedings by alternative means was sought or granted at that stage.
29. A further order was made by Eder J on 4 February 2015, requiring Mrs Jemai (ancillary to the OJ freezing order) to provide information and documents about the source of funding for her Swiss lawyers in connection with Swiss criminal proceedings brought against her in relation to alleged money-laundering offences.
30. On 6 February 2015 the claimants' solicitors sent by email a letter to Me Carnicé (Mrs Jemai's Swiss lawyer), enclosing inter alia the OJ freezing order and Eder J's order for directions of 4 February 2015, and referring to the committal proceedings against Mrs Jemai.
31. Mrs Jemai did not comply with the unless order dated 4 February 2015. Accordingly, on 18 February 2015, Eder J dismissed her application for a declaration that the court had no jurisdiction to hear the claims against her and entered judgment against her in the costs proceedings in the sum of US$3.25 million. She has not paid anything in relation to that judgment.
32. On 4 March 2015, the claimants' solicitors informed Mrs Jemai by email to her known email addresses (i.e. the Jecot email address and the first OJ email address) that the committal applications would be heard on 20 March 2015. They sent a further email to those two email addresses on 16 March 2015 enclosing the bundle for the hearing on 20 March 2015.
33. Whilst preparing for the hearing on 20 March 2015, counsel for the claimants noticed that Mrs Jemai's jurisdiction application notice dated 30 January 2015 contained a further email address, i.e. the second OJ email address. As a result, at 18:53, 19:53 Swiss time, on 19 March 2015 the claimants sent a message to that email address and to the two known email addresses further informing Mrs Jemai of the hearing fixed for the following day and enclosing the claimants' submissions and index to the hearing bundle.
34. The matter came before Eder J on 20 March 2015, at a hearing at which Mrs Jemai did not appear and was not represented, but in relation to which Eder J was satisfied that she had been duly served. Counsel for the claimants, on that occasion, specifically drew the judge's attention to three points relating to service and notice: first, that the first committal application might be read as relating only to permission, although subsequent correspondence made it quite clear, it was said, that the court would be asked to proceed; second, that notice to the third and latest email address (i.e. the second OJ email address) had only been given the night before the hearing and that there had not been any active communication from Mrs Jemai using the previously provided email addresses for some time; finally, that the service of the second committal application had not been covered by any pre-existing order for substituted service.
35. Eder J heard the application in Mrs Jemai's absence and was satisfied on the evidence presented to him that a committal order should be made, albeit some of the grounds were not pursued. On 25 March 2015 he delivered a reasoned judgment, in which he found that Mrs Jemai was indeed in contempt of court and sentenced her to a total of 20 months imprisonment in respect of her contempts of court, consisting of:

i) the making of a false disclosure statement on behalf of Jecot on 31 January 2013 which was false to her knowledge in two respects;

ii) the signing of false statements of truth verifying Jecot's defence and further information which she knew to be untrue; and

iii) contumaciously failing to comply with orders dated 14 March and 28 March 2014 requiring the provision of information.

36. Because of the specific matters referred to by counsel, Eder J suspended the committal order in order to give Mrs Jemai an opportunity to make an application to set aside or vary the order, such application to be made by 9 April 2015. A subsequent order dated 30 March 2015, set out directions which were to apply if she did so. The order was suspended pending the making of any such application.
37. On the same date that the committal application was heard by Eder J, Mrs Jemai was attending an all-day hearing in Geneva at the Geneva Public Prosecutor's office. That hearing had been fixed for 20 March 2015 at an earlier hearing on 16 February 2015.
38. Mrs Jemai duly applied to discharge the Eder contempt order by an application notice dated 9 April 2015. That application came on before Flaux J on 26 June 2015^[3]. At that hearing Mrs Jemai was represented by Howard Kennedy, solicitors, and leading counsel, Mr Michael Booth QC. She served three witness statements in connection with the application: her second witness statement dated 8 April 2015; her third witness statement dated 13 May 2015; and a further witness statement dated 10 June 2015. She did not attend the hearing. In addition there were a number of witness statements from the claimants, with exhibited correspondence.
39. In his judgment Flaux J articulated the points put forward by counsel for Mrs Jemai at the hearing in support of her application to discharge as: first, that she was not informed of the proceedings; and second, that service by the alternative means of service by email was not good service because it was contrary to Swiss law. After reviewing the evidence in detail at paragraphs 9 to 13 of his judgment, he concluded at paragraph 15 that he was quite satisfied, as Eder J had been, that Mrs Jemai had had notice of the committal proceedings long before she purported to say she did on 19 March 2015. He said:

"9. Taking the points in turn, so far as notice of the committal proceedings on 20^th March is concerned I am quite satisfied, as indeed was Mr. Justice Eder, that the Defendant had notice of that hearing. The Defendant, in her latest witness statement, although strikingly not in her first witness statement, now accepts that despite having a story about her computer breaking down and eventually getting her computer restarted in Azerbaijan, a story which is implausible to say the least, does admit that on 26^th January 2015 she opened the e-mail account [email protected] for the purposes of looking at e-mails and attachments sent by Mr. Gunter, who is the liquidator of Jecot, appointed by the Swiss Court.

10. She says that she saw there were some other new e-mails in the inbox, but she did not open them because the computer was very slow. She did not think there was anything important because Mr. Justice Eder had recused himself. She recalls seeing a few e-mails from the Claimants, but they were not related to her at all and they related to other Defendants. She did not look at anything except Mr. Gunter's e-mails.

11. That supposed explanation is patently untrue since, quite apart from anything else, there were two e-mails which had recently come into her inbox, which are the e- mails sent at page 141 of the bundle on 19^th December 2014, sent by Mr. Dooley of the Claimant's solicitors, which was headed "Committal application against OJ", that is to say Olessia Jemai:

"Dear Mrs. Jemai, I refer to our previous correspondence in relation to our client's committal application against you."

12. There was then another e-mail which would also have been in her inbox at that time, of 16^th January 2015, which referred to Mr. Justice Eder hearing the application for permission to bring committal proceedings on 4^th February. It seems to me that it is inconceivable that Mrs. Jemai did not appreciate that there were those e-mails which related to extremely important matters, not to matters which were no important and not to matters which only related to other people. I am quite satisfied that the suggestion that she did not read the e-mails is simply untrue.

13. The matter does not rest there because the one thing that Mrs. Jemai carefully does not say in her witness statement is that she has not accessed and looked at that e-mail account since 26^th January. After 26^th January and before 20^th March, any number of e-mails came into that account relating to the committal application, including an e-mail which was sent by Mr. Dooley on 4^th March 2015 to both e-mail accounts of which the Claimant's solicitors were then aware, informing Mrs. Jemai that the bank intended to pursue their committal applications against her on 20^th March, before Mr. Justice Eder. Again, I have no doubt that she was aware of that e-mail, saw it and read it.

14. The matter does not, in fact, rest there, as Mr. Nathan Pillow QC, on behalf of the Claimants, points out, because the notification of the committal proceedings against the Defendant and the fact that permission had been given was notified to the Defendant's Swiss lawyer on 6^th February 2015. Again, it is inconceivable that, in compliance with his professional obligations, her Swiss lawyer did not consult with his client and inform her that there were committal proceedings against her in London.

15. I am satisfied, as was Mr Justice Eder, that this Defendant had notice of these committal proceedings long before she purports to say she did on 19^th March."

40. As to the second point, Flaux J pointed out that there was no evidence put before the court by Mrs Jemai to the effect that service by email was contrary to Swiss law. In the absence of cogent evidence that service by email was not permitted under, or was contrary to, Swiss law, he considered that that he would in the normal course proceed on the basis that Swiss law had nothing to say about the subject. He also relied on the fact that, in relation to the orders that had been made for alternative service by Eder J, the time for challenging those orders had long passed and, in any event, they had not in fact been challenged; any challenge would have to be by way of an application for permission to appeal to the Court of Appeal.
41. Accordingly, Flaux J dismissed Mrs Jemai's application to set aside the Eder committal order. He ordered that the suspension on the committal to prison of Mrs Jemai be lifted. He also gave the claimants permission to re-serve upon Mrs Jemai, with a penal notice, the further order made by Eder J on 4 February 2015, requiring her (ancillary to the OJ freezing order) to provide information and documents about the source of funding for her Swiss lawyers in connection with Swiss criminal proceedings brought against her in relation to alleged money-laundering offences.
42. On 17 July 2015 Mrs Jemai lodged a composite Appellant's Notice in relation to the various orders referred to above, which was superseded by separate notices for each order appealed against.
43. By order made on 18 January 2016 I listed the appeal against the order of Flaux J made on 26 June 2015 and the committal order of Eder J to come on for hearing together (and granted an extension of time in relation to the appeal against the latter). I also directed that the applications for permission to appeal and to extend time in relation to the earlier orders should come on together.

The first issue – should the appeal be allowed against the order of Flaux J dismissing Mrs Jemai's application to discharge the Eder committal order?

44. Logically, the first issue which arises is whether Mrs Jemai's appeal against the order of Flaux J dated 26 June 2015 refusing to discharge the Eder Committal order should be allowed.
45. Mr Lenon submitted that Flaux J was wrong to dismiss the submission that Mrs Jemai was unaware of the committal hearing on 20 March 2015. He contended that Flaux J's incredulous treatment of Mrs Jemai's evidence and his willingness to draw adverse inferences against Mrs Jemai was not justified and that the judge ought to have taken into account the fact that Mrs Jemai was a foreigner, acting in person, for whom English was not her native tongue and who had no special legal expertise. Flaux J did not appear to have done so. If one approached Mrs Jemai's evidence with these points in mind, it was by no means inconceivable, contrary to the judge's conclusions, that on 26 January 2015 Mrs Jemai failed to read the emails notifying her of the permission hearing. Mr Lenon further submitted that there was plainly scope for reasonable doubt as to whether relevant emails notifying her of the hearing were seen by Mrs Jemai; the judge should have resolved those doubts in favour of Mrs Jemai. Moreover, Mrs Jemai was entitled to have been unclear as to whether she was required to have been served in accordance with the Hague Convention. Mr Lenon conducted a detailed analysis of the chronological evidence to support his submission that there was a reasonable doubt that Mrs Jemai had not had sufficient notice of the hearing before Eder J on 20 March 2015. Accordingly, he submitted that this court should remit the committal application to a first instance judge to rule on the contempt allegations, thereby giving Mrs Jemai the opportunity of a fair hearing at first instance.
46. The task of this court is to decide whether the decision of Flaux J was wrong; see CPR 52. 21 (3)(a). There was no suggestion by Mr Lenon that his decision was unjust by reason of any serious procedural or other irregularity within CPR 52. 21 (3) (b).
47. In my judgment there is no basis for a conclusion that Flaux J was wrong in the decision which he reached, after consideration of the evidence and full argument on both sides, and in circumstances where Mrs Jemai was represented by experienced solicitors and leading counsel. Contrary to the position before Eder J (where the claimants had to satisfy the court that the alleged contempts had been established on the evidence beyond reasonable doubt), Flaux J merely had to be satisfied on the balance of probabilities that Mrs Jemai had proper notice of the hearing on 20 March 2015. He was clearly entitled to conclude that in all the circumstances, and in particular the background history of the case, the court had been correct to permit service on her by alternative means, i.e. other than by service under the Hague Convention.
48. Flaux J was in my view clearly entitled on the evidence before him to come to the conclusion that he was "quite satisfied… that [Mrs Jemai] had notice of [the 20 March] hearing" and was "satisfied... that [she] had notice of these committal proceedings long before she purports to say she did on 19th March". Apart from the fact that that Eder J had already found her (in the main judgment) to have given deliberately dishonest evidence at trial, there were a number of features about the evidence which she gave (and did not give) before Flaux J, which entitled him to reach this conclusion. I refer merely to a few aspects of her evidence:

i) Mrs Jemai had always directed Jecot's conduct of the litigation providing all of its evidence and signing all relevant documents. She had been responsible for signing the notice of change of solicitor giving the East Molesey address as the address for the service along with her own personal mobile phone number. She had never communicated any change to that address for use in the proceedings. She had never informed the claimants that she was not contactable on the first OJ email address.

ii) She had critically changed her story during the proceedings before Flaux J as between her initial statement and her reply evidence, once the claimants had obtained and exhibited documents from Jecot's administrator, Mr Guenther, showing Mrs Jemai's initial witness statement to have been misleading. Those documents showed that, contrary to her earlier evidence, Mrs Jemai had been using and had been able to access, the first OJ email address to communicate with Mr Guenther during the period when the claimants were sending her emails to that email address in relation to the committal (and costs) proceedings.

iii) In an attempt to support her assertion that she had not seen the relevant emails, she provided an elaborate and incredible story about alleged computer breakdowns, repairs and forgotten passwords which Flaux J regarded as "implausible to say the least".

iv) She also admitted in her reply evidence (which she had not done previously) that she had had access to the first OJ email address in and from late January 2015; that she had seen the claimants' in her e-mails inbox for that account at that time (one of which was headed: "Committal application against OJ"); and that she had deliberately decided to ignore those emails. That was so despite the fact that she admitted that she had known since 28 April 2014 of both the freezing order and committal proceedings against her. It also appeared that she had read the emails sufficiently to have wrongly concluded that they were not related to her but were related to other defendants.

v) Moreover, Mrs Jemai did not deny before Flaux J that she had had access to, and had in fact accessed, the first OJ email account between 26 January and 20 March 2015, when further emails relating to the committal hearing were received – including the notices of the 20 March hearing itself (on 4 and 16 March).

vi) The fact that permission had been given to bring the committal proceedings was notified by the claimants to Mrs Jemai's Swiss lawyer on 6 February 2015. As Flaux J held, it was extremely unlikely that he would not have communicated that to Mrs Jemai.

49. For the above reasons I would dismiss the appeal against the order of Flaux J. In my judgment Flaux J was entitled on the evidence before him to conclude that:

i) Mrs Jemai had chosen deliberately to ignore the committal proceedings and the notices given of them and of the various hearings in them (as Eder J himself had decided); and

ii) accordingly, there was no basis to set aside the Eder committal order on the grounds that Mrs Jemai had not been adequately notified of it.

The second issue - should the appeal be allowed against the Eder committal order on the basis that the allegations of contempt of court were not established on the evidence beyond reasonable doubt?

50. On the assumption that the appeal against Flaux J's order fails, then the next issue to be determined is whether Mrs Jemai's appeal against the Eder committal order should be allowed. By her grounds of appeal in relation to the substantive findings by Eder J, Mrs Jemai seeks to challenge his conclusions in relation to various of the contempts which he found established. She does not rely on any point of law or principle to challenge the judge's articulation or application of the correct legal test for committal, or the means of proof proposed by the claimants and accepted by the judge. Instead, in her first and her supplemental skeletons, and in Mr Lenon's oral argument, she makes various factual and evidential points by reference to additional documents, most of which were not before Eder J on the committal application, but did form part of the large body of evidence in the main trial. Indeed, most of the arguments had been deployed in earlier witness statements served by Mrs Jemai as part of the trial process. For this reason, Mr Lenon submitted that there was no need for her to make any application to this court for leave to adduce further evidence pursuant to CPR rule 52.11(2) and that the discretionary principles reflecting the decision in Ladd v Marshall^[4]were not engaged.
51. In my judgment, once this court has decided, as it has, that Eder J was entitled to hear the committal application in the absence of Mrs Jemai, and that there is no basis to set aside his committal order on the grounds that she did not receive proper notice of the hearing, then, in the absence of compelling reasons demonstrating that the additional documents fatally undermined his conclusions that Mrs Jemai was in contempt, or that there would otherwise be an injustice, this aspect of the appeal should be approached on the basis of the evidence before the judge. Mr Lenon was not, in my judgment, in his analysis of the additional material upon which Mrs Jemai sought to rely, in a position to establish either of these two things.
52. As Mr Pillow submitted, this court, unlike Eder J as the trial judge, is simply not in a position to evaluate detailed factual submissions effectively amounting to a retrial of the principal issues involved in the trial and it would be dangerous for it to do so. Eder J had seen and heard all of the relevant evidence, including Mrs Jemai's, at a lengthy trial at which Jecot was represented. He was therefore familiar with the whole background to the facts recorded in his judgment. As the Supreme Court said in Summers v Fairclough Homes Ltd [2012] 1 WLR 2004 per Lord Clarke at paragraph 59, that is why the trial judge is likely to be "best placed" to hear contempt proceedings, and that such an approach is likely to be "both the most economical and the most just way to proceed".
53. Thus, for example, grounds 2(a) and 3, on the basis of which the claimants alleged that Mrs Jemai was in contempt, concerned the disclosure of, and reliance in pleadings on, documents which, it was said, Mrs Jemai knew to be fake, because she concocted them to cover up the money-laundering operation that she had undertaken. Before us, Mr Lenon sought to argue by reference to a handful of documents and statements by Mrs Jemai and others that the documents held to be fakes could be demonstrated to be genuine. But, as Mr Pillow submitted, not only was it highly doubtful whether the further materials demonstrated any such thing, but also Mrs Jemai's arguments in relation to the facts found in the committal proceedings amounted, in effect, to an out and out attack on Eder J's conclusions at trial based on his comprehensive analysis of inter-connected facts and evidence in relation to Jecot, the Jemai family and their money-laundering activities, which he had set out in great detail in Part X of his judgment; see in particular paragraphs 491 to 554. Furthermore, if Mrs Jemai's claims were true, and the documents in issue in grounds 2(a) and 3 were indeed genuine, then most, if not all, of Eder J's conclusions concerning the laundering of Mr Kondratyuk's and Mr Jemai's shares of the fraud proceeds by them and Mrs Jemai, through Jecot, as described in Part X of the judgment, would have to have been wrong. As Mr Pillow's submissions demonstrated, this was highly unlikely.
54. Similar points can be made in relation to Mr Lenon's attempt to challenge the conclusions of Eder J in relation to ground 2(b) (deliberately causing Jecot to fail to disclose relevant documents) and ground 5 (failing to disclose her assets). Mr Lenon did not persuade me that he had established any sound basis for his argument that Eder J was wrong to conclude that Mrs Jemai's breaches of the relevant orders had been proved to the requisite standard and were contumacious. The late service of her affidavit in November 2015 and her sixth witness statement in June 2016, purporting to comply with earlier orders (which itself was a matter in dispute), did not excuse her earlier breaches, upon the basis of which Eder J found her to be in contempt or afford any reason for allowing the appeal.
55. Accordingly, I would dismiss the appeal against the Eder committal order.

Issue 3 – The applications for extensions of time and permission to appeal

56. Mrs Jemai applies for extensions of time and permission to appeal in respect of the matters identified at sub-paragraphs 1(iii) – (vi) above.
57. Mr Lenon submitted that the effect of the alternative service provisions allowed by Eder J was that Mrs Jemai was not made aware of (amongst other things) the unless order made on 4 February 2015 until much later on and was consequently prevented from defending the costs only claim. He submitted that Mrs Jemai only became aware of the unless order and the order of 18 February 2015 in July 2015, a few days before she submitted her appeal applications, at a time when she was researching the documents she had received. The orders were part of an exhibit to a witness statement of a Ms Satunova dated 11 May 2015 but, submitted Mr Lenon, Mrs Jemai did not focus on them at the time, as the witness statement was served in response to an application by Mrs Jemai to extend time which was in the event agreed. He argued that the claimants sent Mrs Jemai copies of those orders for the first time only in October 2015 after she requested them. He argued that, given the magnitude of the costs order, the unsatisfactory nature of the service provisions and the real issue as to whether the Court had jurisdiction to make the costs only order, the Court should grant permission to appeal out of time in relation to these orders.
58. I would not grant Mrs Jemai an extension of time in respect of any of these applications. Under CPR 52.4(2) she was required to issue her notice of appeal by no later than 21 days after the date of the decision of the lower court that the appellant wishes to appeal. That 21-day period runs from the date on which the court pronounces its decision, not from the date on which the order is drawn up or the date on which it is sealed: see per Moore-Bick LJ in R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472, at paragraph 22. In that case, Moore-Bick LJ set out the relevant principles governing applications for such extensions, pointing out that they should be approached in the same way as applications for relief from sanctions under CPR 3.9 and should attract "the same rigorous approach" as that set out in Denton v TH White Ltd (De Laval Ltd, Part 20 defendant) (Practice Note) [2014] EWCA Civ 906; [2014] 1 WLR 3926, CA: see paragraphs 36 – 44.
59. Mrs Jemai has not demonstrated in relation to any of the relevant orders that she satisfies the relevant Denton criteria, or that in all the circumstances of the case she should be granted an extension of time. Dealing with the relevant orders in turn:

The 'unless' order made on 4 February 2015

i) This order was made by Eder J in the costs proceedings. Mrs Jemai's appellant's notice was filed on 11 August 2015, i.e. more than 5 months out of time.

ii) No adequate evidence supported her assertion that she "only became aware of the unless order … in July 2015", a few days before she submitted her appeal applications.

iii) On the contrary, the evidence shows that it is untrue. The order was attached to an email sent to her on 5 February 2015 to the first OJ email address and the Jecot email address. As Flaux J held, in and from late January 2015, Mrs Jemai had access to the first OJ email account, and received the relevant emails.

iv) Second, a copy of the sealed order was attached to an email sent on 9 February 2015 to the same two email addresses, but also copied to Me Carnicé, Mrs Jemai's Swiss lawyer.

v) Third, the order was included in the bundle for the 26 June 2015 hearing before Flaux J, at which Mrs Jemai was represented by solicitors and leading counsel.

vi) Mrs Jemai's original skeleton suggested that she had received the order only on 12 November 2015, i.e. after she had filed an appellant's notice appealing that order.

Order of 18 February 2015

vii) This was an order upon judgment made by Eder J in the costs proceedings. Mrs Jemai's Appellant's Notice was filed on 11 August 2015, i.e. nearly 5 months out of time.

viii) Mrs Jemai gave the same (sole) excuse as for the 4 February 2015 order, viz., that she only became aware of it "in July 2015". Again, this was untrue, because:

a) First, Mrs Jemai was notified of the order on 18 February 2015, by an email sent by the Court to the first OJ email address and the Jecot email address. As already explained, there can be no doubt that she received that email.

b) Second, it was also included in the bundle for the hearing before Flaux J in June 2015.

c) In her original skeleton, Mrs Jemai contended that the claimants "only really sent me this order properly (separate document sent by email) in October 2015 after I requested it". Mrs Jemai's Supplementary Skeleton did not explain how this was consistent with her alternative case that she became aware of the order "in July 2015" and then filed the relevant appellant's notice in August.

Orders for alternative service made on 14 March and 29 April 2014

ix) These orders were made by Eder J in the costs proceedings. Mrs Jemai's Appellant's Notices were filed on 11 August 2015, i.e. well over a year late.

x) Mrs Jemai did not attempt to justify her inordinate delay.

60. Even if I had been minded to grant extensions of time in relation to any of the relevant notices of appeal, I would have refused permission to appeal. None of the reasons put forward by Mr Lenon convinced me that Mrs Jemai's procedural or so-called substantive arguments had any real prospect of success.
61. Thus, the "magnitude" of the costs order had no bearing whatever on the existence or otherwise of any prospects of success on an appeal; the court was clearly entitled in all the circumstances to make the orders for alternative service and there was nothing "unsatisfactory" about them. There was no discernible substantive point in relation to the jurisdiction issue. Jecot was an active party to the underlying proceedings in the English court; Mrs Jemai was its sole director and personally conducted what Eder J held to have been its dishonest defence. She attended the trial in this jurisdiction both as a witness and as Jecot's authorised representative in the litigation itself.

Disposition

62. Accordingly, as indicated above, I would dismiss Mrs Jemai's appeal against the order of Flaux J dated 26 June 2015, her appeal against the Eder contempt order and her various applications for extensions of time and permission to appeal.

Lord Justice Lewison

63. I agree.

Note 1   [2014] EWHC 191 (Comm).    [Back]

Note 2   [2014] EWHC 755 (Comm).    [Back]

Note 3   [2015] EWHC 2251 (Comm).    [Back]

Note 4   [1954} 1 WLR 1480.    [Back]