CL-2022-000367 - [2025] EWHC 2877 (Comm)

Pursuant to the Debarring Order:

In considering how the trial of CVS’s claim should proceed, I was referred to two recent first instance decisions in which the effect of debarring orders on trial was considered: Times Travel (UK) Ltd v. Pakistan International Airlines Corp [2019] EWHC 3732 (Ch) and Financial Conduct Authority v. London Property Investments & Ors [2022] EWHC 1041 (Ch). Mr Edwin Johnson KC (Sitting as a Deputy Judge of the Chancery Division) in Times Travel (UK) Limited, Nottingham Travel (UK) Limited v Pakistan International Airlines Corp [55], helpfully distilled the preceding case law (at first instance) into six principles, which were cited with approval by the Court of Appeal in Hirachand v Hirachand [2021] EWCA Civ 1498 and are worth repeating:

“55.

(1) If there is a debarring order in place, its effect depends in the first instance upon its terms. One must consider the terms of the debarring order in order to determine what it debars the relevant party from doing. And as I have already indicated there is no ambiguity in that respect in the present case. The December 2018 order, as accepted, debars the defendant from defending the account proceedings.

(2)

Where an order debars a defendant from defending a particular proceedings, this should mean what it says: At the trial of the relevant proceedings the defendant should not be permitted to participate in the normal way. That is to say by doing such things as adducing evidence, cross-examining witnesses on the other side, or making submissions.

(3)

The case law does appear to demonstrate the existence of a residual discretion or trial management power to permit a debarred defendant to take some part in the trial of the relevant proceedings. It seems to me that this discretion is a narrow one. In particular circumstances I can see that the exercise of this discretion might include the permitting of some limited submissions or the permitting of some cross-examination. More generally, it strikes me that a debarred defendant should normally be able to address the court on the form of order to be made after the substantive decision on the trial has been made, and in relation to the pointing out of any errors in the relevant judgment. It also strikes me, but I say this on a strictly provisional basis because it is not a matter I am deciding at this stage, that it does strike me that the debarred defendant ought to be able to address the court on the question of the costs of the relevant proceedings. But I repeat that that is not a question which I am deciding in this judgment.

(4)

The overriding principle however is that debarring orders should mean what they say. The debarred defendant should not normally be permitted to participate in the relevant trial in a way which undermines the debarring order, and permits the defendant to escape the effect of the debarring order. A debarring order is an important sanction available to the court in the exercise of its case management powers, and an important method of ensuring that the court's case management orders are respected. As such, defendants should not normally be allowed to escape from the consequences of a debarring order when the trial of the relevant proceedings takes place.

(5)

Where a debarring order does have the effect of preventing a defendant from participating in a trial, the position does not then go by default. At the trial the claimant must still demonstrate to the satisfaction of the court that the claimant is entitled to the relief sought in the relevant proceedings.

(6)

The striking out of the defence does not mean that the court cannot have any regard to that defence. It can still be considered by the court for the purposes of understanding the statements of case in the relevant proceedings as a whole. To adopt the phrase adopted by Tomlinson LJ in the second decision of the Court of Appeal in Thevarajah , "The relevant defence may have left a lasting legacy on the statements of case as a whole". It also appears, by reference to what Sales J is recorded as saying in the second decision in Thevarajah , that looking at the defence for the purposes of understanding the claim can also, in an appropriate case, extend to hearing from counsel for the debarred defendant in order for counsel for the debarred defendant to provide assistance for the benefit of the court in understanding the nature and extent of the relevant claim.”

To the extent that I quote Mr Bonnier’s witness statements in this judgment as evidence, this is because CVS has sought to rely on or respond to his admissions.

In considering the implementation of the Debarring Order, I had to decide whether to allow Mr Bonnier to proceed with an application for security for costs. I allowed Mr Bonnier to make this application because I considered it outside the limits of “defending CVS’s Claim”, to which HHJ Pelling KC’s Debarring Order specifically related. However, the application failed.