Case No: A3/2008/1936, A3/2009/0612
Neutral Citation Number: [2009] EWCA Civ 483
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
COMMERCIAL COURT
(MR JUSTICE DAVID STEEL)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 30th April 2009

Before:

LORD JUSTICE RIMER
and
LORD JUSTICE AIKENS
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Between:

	MEHTA	
Applicant	
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ISLAMIC INVESTMENT CO OF THE GULF (BAHAMAS) LTD	
Respondent	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr J Hines (instructed by Messrs Byrne) appeared on behalf of the Applicant.

Mr A Trace QC and Mr A Ayres (instructed by Messrs Norton Rose) appeared on behalf of the Respondent.
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Judgment

Lord Justice Aikens:

1.	There are two matters before the court.  The first is an application for permission to appeal a judgment given by David Steel J on 19 March 2009.  That application before the judge was the seventh application of Mr Rajesh Kishor Mehta for the return of his passport.  That had been taken from him by reason of an order of the judge in September 2008.  

2.	The background to the case and the order of the judge originally was all set out in a judgment which I gave in an application to this court for permission to appeal other orders of the judge some time ago and I will not repeat them now.  The present application arises from David Steel J’s order on 19 March where he refused that seventh application for the return of Mr Mehta’s passport.  He did so on the basis that there were no significant changes of circumstance that had occurred; that Mr Mehta was a flight risk and that he had failed to comply with any of the orders and conditions that had been made by the court in relation to previous orders.  Therefore as a matter of discretion he refused to grant that application. 

3.	Mr Hines, who has appeared for Mr Mehta today, has submitted that the judge was plainly wrong in the way he exercised his discretion.  He submitted that there were changes in circumstance.  The particular change in circumstance he emphasised is that now Mr Mehta has come to the end of the time given to him by the Indian criminal courts whereby he was permitted to stay out of that jurisdiction, and unless he returns to India, there is a grave danger that he will be the subject of extradition proceedings by the Indian authorities.  An application had been made to the Indian courts by Mr Mehta between the hearing before David Steel J on 12 March 2009 and that on 19 March 2009 for permission to extend time.  That was refused by the Indian courts.

4.	Mr Hines also submitted that Mr Mehta is not a flight risk in the way characterised by the judge, and submitted that there were good reasons why Mr Mehta did not comply with various court orders.  We have listened carefully to those submissions.  We think there is nothing in them.  We think that the judge was correct to exercise his discretion in the way that he did and that it cannot be said to be either plainly wrong or that he took into account matters he should not have done or that he failed to take into account matters that he should have done.  Therefore that application is refused.  

5.	The second application concerns the conditions that we attached to the permission to appeal that was granted (subject to conditions) by this court at the hearing on 20 February 2009.  There were three conditions that we attached.  The first was that Mr Mehta had to provide security for costs in the appeal in the sum of £80,000.  That the second was that he had to pay all outstanding orders for costs against him, in the sum of approximately £204,000.  The third was that all the money, the subject of a judgment as long ago as 2002 for $10,000,000-odd, should also be paid into court.  All those conditions had to be fulfilled within 28 days of the hearing on 20 February 2009.  

6.	None of those conditions have in fact been fulfilled at all.  Mr Hines now applies for those conditions to be varied so that, even after the period of time that has elapsed, there may be a period of 28 days during which the applicant, Mr Mehta, can explore means by which those sums can be paid into court.  There is no statement that they will be paid into court by that time.  It is said that there are only assets within India, which are subject to freezing orders, that can provide those sums.  We are not prepared to make that variation in the terms that have been suggested by Mr Hines.  We have some sympathy with the fact that $10,000,000 is a large sum to provide in short order, although at the time we made the order on 20 February 2009 there was no evidence before the court as to any difficulties that Mr Mehta might have in complying with the court order.  

7.	Having seen the information that we now have, it is my view and that of my Lord, as I understand it, that there should still be very strict time limits as to the conditions.  Therefore I propose, and I understand my Lord to agree with this, that there should be a variation of the conditions upon the following terms, namely that, as a condition of having permission to appeal, Mr Mehta must, first, pay the security for costs sum of £80,000 by 4pm on Wednesday 8 April.  Secondly, he must pay into court the outstanding costs sums, which are in fact £204,517.48, by 4pm on Tuesday 21 April.  I should emphasise that strict compliance with those conditions are necessary pre-conditions for any appeal going ahead.  In other words, if either the one or the other is not complied with, the appeal will stand dismissed.  The third condition is that the $10,000,000 will be paid into court by 4 pm on 28 April.  That third condition has with this proviso that, provided that the other conditions have been fulfilled, then, if the $10,000,000 is not going to paid in by 28 April at 4pm, there must be, before that time has expired, an application to the court to extend that time.  Such application must be on notice to the claimants in this case.  If there is such an application, then it must be upon the basis that it would be heard by this court no later than the week starting 11 May 2009.  

8.	On that basis and to that extent only the application to vary the conditions is granted.

Lord Justice Rimer:

9.	 I agree.

Order: Application granted in part