THE USEFULNESS OF HAVING A TRANSCRIPT WHEN CONSIDERING ALLEGATIONS OF NON-DISCLOSURE

In Les Ambassadeurs Club Ltd v Albluewi (aka Sheikh Salah Hamdan Albluewi And Mr Salah Hamdan Albelwi) [2020] EWHC 1313 (QB)Mr Justice Freedman set out the importance of having a transcript of an ex-parte hearing when considering allegations of a failure to disclose. (It is another example of the court finding that there had not been full disclosure and the entire judgment is salutary reading for that purpose).

THE CASE

The claimant was seeking to extend a worldwide freezing order against the defendant.  The defendant opposed this on the grounds that there was no risk of dissipation and that there had been material non-disclosure at the without notice hearing.  The judge heard the application and then sought a transcript of the without notice hearing.   The claimant’s application was refused on the grounds that there was insufficient evidence of dissipation and that there had been material breaches of the duty of full and frank disclosure.

THE JUDGMENT IN RELATION TO THE TRANSCRIPT

XIV Non-disclosure: the transcript

1. 1. In the light of the argument, I decided that it was desirable for this matter to be decided with the benefit of a transcript of the without notice hearing. The reasons for this were as follows:

(1) allegations were made of non-disclosure, and it was therefore important for the Court to have the best evidence available of what was disclosed and what was not disclosed;

(2) this need for the best evidence was especially acute because of the possibility that Mr Burton had said something of the previous history of default at the hearing, as was asserted at paragraph 41j of the Claimant’s skeleton argument. In fact, the amended note did not indicate that this was said, and Mr Burton in the course of argument stated that he was prepared to be bound by the note. However, against the background of the assertion to the contrary in the skeleton argument, the Court did not wish to act on a possibly inaccurate premise in respect of what was and was not disclosed.

1. 1. In my judgment, there is a lesson to be learned in this case as regards the supply of transcripts. It applies to both parties. It should be good practice in most cases for a transcript to be obtained by a party making an allegation of material non-disclosure so that the Court is well equipped to deal with it. It is in most cases, absent particular urgency, not an answer to say that the Claimant’s note will do. In my judgment, the Defendant ought to have sought a transcript in this case because it was raising an issue of non-disclosure, and there was adequate time to do so. Further, it should be good practice in cases where the non-disclosure is denied for a claimant to seek a transcript, even where a defendant is proceeding without a transcript. The failure to seek a transcript was that also of the Claimant. Since the Claimant was challenging that the non-disclosure in respect of the CCF2 cheques, the Claimant ought to have sought a transcript irrespective of the fact that the Defendant had not sought a transcript. If a transcript had been sought by either party in advance of the hearing, the Court would have been properly equipped to deal with the non-disclosure allegation. This then led to the decision of the Court to seek through the parties that they obtain a transcript. Regrettably, there was a delay in the context of the current emergency of processing the request of the transcript to the transcribers.

   2. This difficulty having been resolved, the Court has been able to consider the transcript and the note. Although there was reference to the traffic card, there was no explicit reference to the dishonour of the CCF2 cheques. There were references to particular previous cheques, but not to a history of dishonoured cheques. On the contrary, reference was made to Ms Elliott’s first affidavit at paragraph 5 and the history of gambling in the period between 1 November 1993 and 11 September 2019. The traffic cards were exhibited, but there was no reference to the dishonour of cheques before the September 2019 cheques which are the subject of this claim. On the contrary, the concentration was on the length of the relationship at p.4F-5B:

“MR BURTON: …She first of all gives evidence in paragraph 5 of a summary of the defendant’s playing history and she notes, for example, my Lord, that over the course of his membership that he has visited the club on approximately 155 separate occasions and during that period and during the course of his membership, he has bought gaming tokens to the value of approximately 14 million with an overall loss of approximately 5 million.

MR JUSTICE CAVANAGH: Yes, one of the surprising things about this is that he was a member of good standing for 20 years or more.

MR BURTON: Indeed, my Lord, indeed. At (sic) that point^[1], in many ways is a point perhaps on one side that Mr Albluewi could take and he could say, “Well, hang on a minute, I’ve been a member of your casino for 25/26 years, not paid like this before^[2], why are you acting in this way? It’s not as though I’m a new person, you don’t know me”. But of course, my Lord, we would formulate it in a slightly different way and we would say, “Well, precisely, you have been a member of this club for a period of time and this is the first time we say you have gone to ground in this way. We suppose you to be back in Saudi Arabia. You are not engaging, you are not paying your debts and this is what takes it out of the norm”. We will come onto that, my Lord, in due course, but it is certainly the case that he has been a member for a significant period of time and I think the turnover of his gambling is something around – well, my Lord will have seen it from the exhibit, it is many tens of millions of pounds.

1. 1. When Mr Justice Cavanagh said that the Defendant was a member of good standing for 20 years or more, he was not referring to the period of 1993 to 2015, but to the period to 2019. This is apparent because there was no reference to the default in 2015. Further, it was understood by Mr Burton as being longer than 20 years, because he went on to refer to the Defendant being a member of the casino for 25/26 years. The Judge understood the point to be about a member of good standing, that is not becoming a person of bad standing before the dishonour of the instant CCF3 cheques in September 2019. Mr Burton at that point grasped the possible point for the Defendant asking why a WFO was being obtained when he had been a member of 25/26 years, showing that 20 years or more was meant and was understood to mean a reference to 25/26 years. Mr Burton then made the point quoted above from the transcript in the passage beginning “Indeed, my Lord, indeed”.

   2. Although the transcript has confirmed substantially the note of the hearing, the points about non-disclosure are made more effectively through the transcript because of its fuller nature, albeit that the note has been shown to be a reliable document. A transcript often provides to the Court the full flavour of how a case was put in a fuller form than is available even from a well-prepared note of a legal representative. In this case, the ability to deal with the non-disclosure allegations has been enhanced by having the transcript.