The power of the court to grant a passport order under section 37 of the Senior Courts Act 1981 was primarily recognised by the Court of Appeal in Bayer AG v Winter. The boundaries of such passport orders has been recently considered in Lakatamia Shipping Company Ltd and others v Su and others.
In that case, the Court of Appeal dismissed an appeal against the High Court’s refusal to discharge a passport order, granted over three years ago, restraining the appellant from leaving the jurisdiction until after he had attended a court hearing to give information as to his assets under CPR 71. A passport order is therefore defined as an order requiring an individual to surrender every passport and travel document that would enable them to leave the jurisdiction. It also requires them to disclose to the tipstaff (enforcement officers for the High Court) where they are intended to reside and their contact details.
The judgment is important principally because of the court’s general observations regarding the court’s passport jurisdiction. These are to be borne into mind by those representing either the respondent (defendant) or applicant (claimant) to a passport order, and are as follows.
The passport jurisdiction cannot be used to enforce a judgment by requiring the judgment debtor to remain in the jurisdiction and reside in a particular place until payment.
The Court of Appeal considered an important “safeguard” to protect the liberty of the respondent to a passport order: that is, that the order must be limited in its duration and only be as long as it necessary to serve the purpose of the order. In other words, the interference with the defendant’s liberty must be no longer than necessary to achieve the purpose for which the order was granted. The implication of this therefore is that passport orders are strictly limited in their duration, requiring close monitoring to ensure they serve their purpose effectively and proportionately.
For example, most passport orders are granted to facilitate effective disclosure. In many commercial cases involving foreign defendants, disclosure will be voluminous and complex and bringing on an effective hearing may take a long time. The court must consider the order’s effect on a foreign defendant whose home and family life is abroad, ensuring that the terms are proportionate in those particular circumstances. Article 8 of the European Convention on Human Rights (ECHR), namely the right to respect for private and family life, will often be engaged.
The consequences of restraining the defendant from leaving the jurisdiction, including possible immigration offences and any risk of imprisonment, are highly material when considering a passport order. However, compulsory retention of a foreign national within the jurisdiction under a court order might likely constitute “exceptional circumstances” under which leave to remain might be granted outside the Immigration Rules.
Unhelpfully for those representing either a respondent or applicant, the Court of Appeal stated that definitive guidance on the maximum duration of a passport order is neither necessary nor possible. The jurisdiction to grant and continue such orders involves exercising the court’s discretion, considering all the relevant circumstances.
The longer the passport order remains, the greater the onus will be on the applicant to justify that that order continue. However, the court can protect its own process, taking a realistic view about the conduct and evidence of parties who may consider that the adversity of the order is a small price to pay for avoiding asset disclosure. Where the respondent causes delay (for example, by refusing to comply with court orders and the process which the passport order is designed to facilitate), acceptance that, after a particular time period, the passport order should be discharged would enable “determined contemnors” to benefit from their own misconduct.
The Lakatamia judgment highlights that the power to grant and continue a passport order largely resides with the courts, is at the court’s discretion and is an important part of the court’s procedural armoury. The judgment also sets in stone comments made previously by the courts (for example, the importance of a passport order being very strictly limited in duration has previously been emphasised) and converts those judicial observations into general principles of law. These principles are to be kept in mind by the respondents and applicants (and their representatives) to passport orders. For example, the principles will remind applicants of their burden to justify that a passport order continue but will deter respondents from actively causing delays or refusing to engage with the court’s processes.
