In a detailed Ruling delivered by Justice Indra Charles on 15th January, 2021, the Court set out the legal principles governing the “enforcement” of an Unless Order.
Raynard Rigby, who represented Sigma, along with Christopher Francis, said the Ruling was good jurisprudence which added greater certainty to the legal interpretation and the effect of Unless Orders.
Justice Charles in her Ruling stated in part:
In the instant case, the Court is of the view that the Unless Order should have been more precise and specific especially since at the time it was made, the Admission was already disclosed to the Court and the Defendants’ Counsel. An unless order should be certain from the point of view of the party required to comply with it. Any alleged non-compliance should be capable of being proved without the need to consider voluminous evidence or lengthy submission: Marcan Shipping (London) Ltd v Kefalas [2007] 3 All ER 365 applied.
In the circumstances, the Court does not strike out Sigma’s Writ and Statement of Claim because to do so may be regarded as draconian especially since the Unless Order was not precise and specific. That said, Sigma and/or Frank Forbes must not “selectively and unilaterally determine” what they must disclose. Full and frank disclosure of the “perhaps more than 20 filing cabinets and 90 bankers boxes” must now be made otherwise Sigma/Frank Forbes must swear, within fourteen days hereof, an affidavit explaining whether the Relevant Documents have at any time been in their possession, custody or power but no longer is and they must detail when they parted with them and what has become of them.
