England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION,
PRESTON DISTRICT REGISTRY
(HIS HONOUR JUDGE BUTLER, SITTING AS A JUDGE OF THE HIGH COURT)
2MA90117
AND
ON APPEAL FROM THE HIGHCOURT OF JUSTICE,
QUEEN'S BENCH DIVISON,
PRESTON DISTRICT REGISTRY
(MRS JUSTICE CARR)
2MA90117

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/02/2017

Lord Justice McCombe:

(A) Introduction

1. Before the court are two appeals brought by Mr Ian Workman ("the Appellant") with permission granted by separate orders of Lewison LJ of 15 May 2015 (stamped on 26 May 2015) and 20 April 2016 (stamped on 21 April 2016).
2. The first appeal is against the order of HH Judge Butler (sitting as a Judge of the High Court) made on 1 July 2014. By that order Judge Butler dismissed the Appellant's appeal from the order of 12 November 2013 of District Judge Rouine which, in turn, had dismissed the Appellant's application to set aside judgments/orders of 29 February 2012, 21 December 2012 and 29 January 2013. The effect of those orders (taken together) was the entry of a default judgment against the Appellant in favour of the Respondents in the sum of £1,503,579.50, plus interest and costs.
3. The issue on the first appeal is whether the court had been entitled to make an "unless order" requiring the Appellant to comply with an earlier order for disclosure of his assets and in default of compliance debarring the Appellant from defending the quantum claim and directing judgment to be entered for the specific sum that I have mentioned.
4. The second appeal is against the order of Carr J, made on 3 October 2014, by which she dismissed the Appellant's application for an order re-listing the Respondent's application for a freezing order which had originally been made on an application without notice by Swift J on 26 January 2012. The issue on the second appeal is whether the Appellant has been wrongly deprived of the opportunity of a return date hearing of the initial freezing order application and, if so, what should now happen.
5. I will deal with each of these appeals in turn, but it is necessary first to set out a short background to the case.

(A) Background Facts

6. On 19 December 2011 in the Crown Court at Preston, after a trial before Christopher Clarke J (as he then was) and a jury, the Appellant was convicted of the murder (on 7 April 2011) of his wife of 35 years, Susan Workman ("the Deceased"). He was sentenced by the judge to life imprisonment, with a minimum custodial term of 17 ½ years. His appeal against conviction was dismissed by the Criminal Division of this Court (Davis LJ, Jeremy Baker J and the Recorder of Stafford) on 28 March 2014.
7. At the time of the murder the Appellant was engaged in ongoing financial relief proceedings against the Deceased following their divorce. The financial relief application was pending in the County Court at Altrincham at the date of the Deceased's death and a final hearing had been scheduled for 19 May 2011 (with an estimated length of 5 days). A freezing order had been made in those proceedings by HH Judge Raynor QC (sitting as a Judge of the High Court) on 11 May 2010, but that was discharged, by order of 19 May 2011, following the abatement of the matrimonial proceedings upon the Deceased's death.
8. The present civil proceedings are brought by Mrs Carol Forrester, the Deceased's sister (as executrix of the Deceased's will), and by two of her sons: Mr Nicholas Workman and Mr Benjamin Workman. There is a third (and elder son), Mr Grant Workman who has assisted the Appellant, from time to time, in the proceedings brought by his aunt and his brothers and to whom (it appears) a substantial proportion of the Appellant's assets had been transferred, or purportedly transferred, before the proceedings were brought. This action was begun by Claim Form issued on 26 January 2012.
9. The claim is based upon the undoubted tort committed by the Appellant upon the Deceased in killing her. The Respondents make a number of claims to damages against the Respondent, most obviously under the Fatal Accidents Act 1976, and also a claim (recognised by them as novel) by way of an application by analogy to the common law rule of forfeiture. In its orthodox form the rule prevents a person criminally responsible for the death of another from benefitting by succession from the death brought about by his unlawful act. It is a well-known rule of law, based upon public policy. The Respondents claimed that the rule should apply by analogy to prevent the Appellant from avoiding what was (they contend) the highly likely outcome of the impending financial relief proceedings, namely an award in the Deceased's favour, specified by them at £1.5 million or thereabouts.

(B) Overview of the Proceedings

10. The proceedings have a somewhat involved procedural history but, in view of the limited ambit of the present appeals, it is not now necessary to set out, in detail, every twist and turn in the action to date. An overview of the salient features will suffice; full details appear in the judgment of Judge Butler of 1 July 2014. What I will set out, however, are what seem to me to be the material events leading to the entry of judgment for the fixed sum of £1.5 million odd on 29 January 2013, pursuant to the "unless" order of 21 December 2012.
11. As I have said the proceedings began by Claim Form issued on 26 January 2012. On that day, counsel for the Respondents applied (without notice to the Appellant) to Swift J for a worldwide freezing order. The learned Judge granted the order, which was largely in standard form, but excluded the usual cross-undertaking in damages. The exclusion was made on the basis of submissions on behalf of the Respondents (to summarise) as to the difficulty of the First Respondent in giving such an undertaking as executrix of the deceased's estate, in light of the uncertainty, at that stage, as to the attitude to the proceedings of one of the estate beneficiaries, namely Mr Grant Workman, and because of the limited resources of the two remaining Respondents, Mr Nicholas Workman and Mr Benjamin Workman. (Those submissions were criticised by Miss McQuail for the Appellant before us, and I will return to this.) The Appellant was ordered to make disclosure of assets on oath within 7 working days after service.
12. The order provided for there to be a return date of 9 February 2012 in London. By Order of 8 February 2012 (sealed on 9 February 2012) the freezing order was continued until further order; the time for the Appellant to make disclosure was extended to 4 p.m. on 16 February 2012; and the return date was ordered to be listed not before 23 February 2012, "The parties to make a joint application to the Court for a hearing date".
13. Time for acknowledgment of service by the Appellant expired on 13 February 2012. The acknowledgment apparently did not arrive at the Action Department of the Queen's Bench Division of the High Court in London until 16 February 2012. In the circumstances, on 29 February 2012, the Respondents' solicitors, not having heard from the Appellant, wrote to the court stating that "we...do not feel that the matter does need to be listed for hearing at the present time" and applied for default judgment. On the same day, Master Fontaine entered judgment in favour of the Respondents for an amount which the court would decide and directed a case management conference ("CMC") to be held before her on 4 May 2012.
14. It is now accepted, for present purposes, that that default judgment so entered was regular, although that matter was for some time in dispute between the parties. It is still said on the Appellant's behalf that the failure to act upon the acknowledgment in time was owing to a mistake at the court.
15. By order of Master McCloud of 19 April 2012 the proceedings were transferred to the Manchester District Registry. On 4 September 2012, DJ Matharu, in that Registry, ordered there to be a CMC on 17 September 2012, with video-link attendance by the Appellant. That hearing did take place and a video link was set up. However, it appears that there were technical problems with the link and the case was transferred to Preston, with an order that the matter be referred to a District Judge for the further listing of the CMC and for a further video-link. On 8 October 2012 DJ Anson in Preston gave further directions for the CMC. He ordered (inter alia) that:

"4…

(b) The [CMC] will not be conducted by telephone nor by video conferencing unless the Defendant applies for such a direction

(c) The hearing shall take place in a courtroom with a secure dock

(d) At least three clear days before the [CMC] the Claimants' solicitors must file and send to the Defendant:

(i) draft directions;

(ii) a case summary…."

16. The court fixed the hearing for 21 December 2012 and the Appellant has stated in a witness statement of 30 October 2013 that he applied to the prison authorities to attend. He says that he received no response and he also maintains that he was not provided with copies of the draft directions or the case summary for the hearing, either because they were not sent or he did not receive them.
17. The Respondents' solicitors did send a letter to the Appellant on 18 October 2012, a copy of which is exhibited to a witness statement of 15 August 2013 by the relevant solicitor, informing the Appellant of the date and the need for his attendance. There is a note on the file of an attendance by the solicitors upon an officer at HMP Garth which states:

"17.12.12

Officer Eileen Hunt calling from HMP Garth. She is the transfer officer and has advised that Mr Workman has not informed them of the court hearing on Friday so will not be producing him at court on Friday. She advised that their Govenor [sic] anyway due to security issues would probably not allow him to attend and ususall [sic] attend hearings by way of video link. I informed her that the last hearing was by way of video link which didnt [sic] work properly. She said yes that it usually the case. She has informed the court and was just letting us know."

18. The undated case summary for the hearing on 21 December, prepared by Mr Edwards for the Respondents stated (inter alia) as follows:

"19. The Defendant remains in default of the Court's Order to provide the Claimants with a list of his worldwide assets (see paragraph 9 of the original Order as amended by paragraph 2 of the Return Date Order).

20. The Claimants now seek an Unless Order in default of which Judgment be entered for the Claimants in the sum of £1.5 million plus £3,579-50 plus interest as claimed in the Particulars of Claim."

19. The Appellant was not present at the hearing.
20. We have a copy attendance note of the hearing made by a representative of the Respondents' solicitors, dated 2 January 2013. As for non-attendance by the Appellant, the note reads as follows:

"Case started at 12 midday.

DJ Anson was presiding.

He confirmed that he understands Mr Workman is not available. We discussed the steps we had taken to contact him including showing him a copy of the letter that we had sent the Order to the court and that we had spoken to the Prison who advised that he has not informed them of the date and it was too late to produce him in any event.

The Judge said that as he has had a copy of the court order from them and us and we have chased and he has chosen not to attend."

21. It was indicated to the Judge that the Respondents were asking for an "unless" order. The attendance note then records as follows (references to "Peter" being, I understand, to Mr Edwards):

"We have Judgment in Default re liability. Peter referred to an authority for the Unless Order which was JSC Bank case. Peter went through the authority and advised that it is within the powers of the court. The court has the power to impose an Unless Order in the substantive proceedings. It is necessary and proportionate due to the fact that normally it would be a contempt order and imprisonment which it has no teeth in this matter so we have come up with the Unless Order.

The District Judge advised that the only question is the figure of quantification of Judgment. He asked where we got the figure from. Peter advised that based upon the matrimonial proceedings there was two figures. One made by the defendant Mr Workman and a figure put forward by counsel on behalf of Mrs Workman and therefore we have taken in between and mid way point which is a figure which is likely to have been awarded.

The District Judge advised he will make the Unless Order so the default date will be the 11 January 2013."

The reference to the JSC case was to JSC BTA Bank v Ablysaov (No. 8) [2013] 1 WLR 1331 which, we are told, was placed before DJ Anson at this hearing, as indicated by the attendance note.

22. The "unless" order was made in these terms:

"Unless the Defendant complies with paragraphs 8(1) and 9 of the Order dated 26^th January 2012 by 4.00 p.m. on 11^th January 2013, the Defendant be debarred form defending the quantum of the Claimants' claims and judgment be entered in the sum of £1,503,579.50 plus interest, together with costs".

23. The Respondents' solicitors' copy correspondence indicates that they sent a letter to the Appellant on 2 January 2013 with a copy of DJ Anson's directions, reminding him again of the terms of the disclosure order made on 26 January 2012. A copy of the sealed order was sent on 4 January 2013 and we have the certificate of service. The Appellant said in the same witness statement of October 2013 that he wrote to the court about the unless order, saying that the order ought to be set aside, but that the letter was returned because the claim number had not been quoted. However, the Appellant still did not comply with the disclosure order. Thereafter, on 29 January 2013, District Judge Knifton made an order (whether formally required or not) entering judgment against the Appellant in the sum specified in the "unless order" of 21 December.
24. It is not necessary to say anything further about events up to 12 June 2013 when the Appellant issued his application to set aside the judgment entered against him. The application was heard by District Judge Rouine on 18 October 2013, when both sides were represented (the Appellant by Miss McQuail). By judgment delivered on 12 November 2013, the Judge dismissed the application and refused permission to appeal. Permission to appeal was granted, however, by Turner J by order of 6 December 2013.
25. It was that appeal that came before Judge Butler on 30 June 2014, the Appellant appearing in court in person and the Respondents being represented on that occasion by Mr Brennan QC and Mr Edwards. The judge dismissed the appeal on 1 July 2014. It is against that order that the first appeal is brought.
26. It should also be noted that, by application dated 16 June 2014, the Appellant had also applied separately for an order setting aside the freezing order. The judge's order dismissed that application, but we have not been provided with any judgment in respect of it. No appeal appears to have been brought against that part of Judge Butler's order.
27. By application notice of 22 August 2014, the Appellant, acting in person, applied for an order that the original freezing order of 26 January 2012 be relisted. The application came before Carr J on 3 October 2014, when the Appellant appeared in court, but in a court dock. He was assisted by his son, Grant, as "McKenzie Friend". The judge dismissed the application, which is now the subject of the second appeal.

(C) The Appeals

28. The Appellant sought permission to appeal against Judge Butler's order on a number of grounds. As I have said, Lewison LJ gave permission to appeal on one ground only, after an initial adjournment of the permission application. He said this:

"1. As I said in my order adjourning the application for permission to appeal there was one point that might meet the second appeals test; namely whether DJ Anson was entitled by his unless order of 21 December 2012 to order that in default of compliance judgement be entered for a quantified sum in relation to a claim for unliquidated damages without having heard evidence of loss: Lunnun v Singh [1999] CPLR 587. I commented at the time that without sight of the relevant documents I could not tell. These have now been supplied and I am satisfied that the point does arise. Mr Workman says that this is covered by ground 6 of the grounds of appeal. On the basis that ground 6 is limited to the point I have identified, I grant permission to appeal on that ground."

Permission to appeal was refused on all the other grounds and, on 10 February 2016, Sales LJ refused a renewed application for permission to appeal on those additional grounds.

29. Lewison LJ granted permission to appeal against Carr J's order, saying this:

"1. Although the judge's decision was one of case management, it is very unusual for a defendant against whom a freezing order has been made on a without notice hearing to be denied the opportunity of an inter partes hearing.

2. In those circumstances the appeal has a real prospect of success."

30. I will address the two appeals in turn.
31. Miss McQuail for the Appellant, in support of the first appeal, submitted that the "unless order" was "irregular" and that the Appellant was entitled to have it set aside as of right; alternatively, if it was not irregular, the court ought not to have made it. This alternative argument seems to be to be outside the terms of the permission granted by Lewison LJ. However, I will nonetheless address it in what follows.
32. It is entirely correct, as Miss McQuail argued, that the normal course of events, following the entry of a judgment for damages to be assessed, is that the claimant must prove the damage alleged and the defendant is entitled to contest every issue that is not conclusively determined against him by the judgment on liability. So much is clear from the case referred to by Lewison LJ in his permission order, Lunnan v Singh (1 July, 1999) in this court, of which we have been supplied with an All England Official Transcript.
33. In that case, the claimant had obtained a judgment for damages to be assessed in respect of water damage caused to his property. After that judgment had been obtained the proceedings had been allowed to "go to sleep". Upon their revival for assessment of damages, the defendant sought to argue that the water seepage alleged had not caused damage to the full extent that was said to have occurred and that any damage caused by leaks in the defendant's pipework had been "de minimis". The county court judge held that the defendant could not maintain this argument as it was precluded by the entry of the default judgment. This court reversed the judge's decision.
34. In giving the first judgment, Jonathan Parker J (as he then was) (with whom Clarke and Peter Gibson LJJ agreed) said this:

"I turn first to the question whether it is open to the defendants, notwithstanding the default judgment, to raise at the damages hearing the issue whether water damage from another source was responsible for damage to the claimant's basement. In my judgment, the position in this respect is as follows. The default judgment is conclusive on the issue of the liability of the defendants as pleaded in the Statement of Claim. The Statement of Claim pleads that an unspecified quantity of effluent escaped from the defendants' sewer into the basement of the claimant's property. In addition it is, Mr Exall accepts, inherent in the default judgment that the defendants must be liable for some damage, resulting thereform [sic]. But that, in my judgment, is the full extent of the issues which were concluded or settled by the default judgment. It follows, in my judgment, that in the instant case all questions going to quantification, including the question of causation in relation to the particular heads of loss claimed by the claimant, remain open to the defendants at the damages hearing. Direct support for this conclusion is, in my judgment, to be derived from the decision of this court in Turner v Toleman. Equally, the Vice-Chancellor's decision in Maes Finance, as I read it, is entirely consistent, as I read it, with that conclusion.

In my judgment, the underlying principle is that on an assessment of damages all issues are open to a defendant save to the extent that they are inconsistent with the earlier determination of the issue of liability, whether such determination takes the form of a judgment following a full hearing on the facts or a default judgment. In this case the judgment was a default judgment. I accordingly accept Mr Exall's submissions in relation to the first point."

35. The same point was made by Lord Millett giving the opinion of the Privy Council in Strachan v The Gleaner Co. Ltd. [2005] 1 WLR 3204 at 3209 F-H as follows:

"… once judgment has been given (whether after a contested hearing or in default) for damages to be assessed, the defendant cannot dispute liability at the assessment hearing: see Pugh v Cantor Fitzgerald International [2001] EWCA Civ 307; The Times, 30 March 2001 citing Lunnon v Singh (unreported) 1 July 1999; Court of Appeal (Civil Division) Transcript No 1415 of 1999. If he wishes to do so, he must appeal or apply to set aside the judgment; while it stands the issue of liability is res judicata. The second is that, whether the defendant appears at or plays any part in the hearing to assess damages, the assessment is not made by default; the claimant must prove his loss or damage by evidence. It is because the damages were at large and could not be awarded in default that the court directed that they be assessed at a further hearing at which the plaintiff could prove his loss. The third is that the claimant obtains his right to damages from the judgment on liability; thereafter it is only the amount of such damages which remains to be determined."

36. Miss McQuail, in her cogent and helpful submissions, argued that the learned District Judges and Judge Butler in the court below lost sight of these principles, first, in making, and secondly, in upholding the "unless order" in this case. Miss McQuail, who appeared before District Judge Rouine, but not before Judge Butler told us that she referred the District Judge to the passages in the White Book (now to be found in Civil Procedure 2016 at para. 12.4.4 p. 468) and she directed us to the passages in the skeleton argument, settled by her in support of the appeal from the District Judge, where those passages and others are referred to again. She argued that the judges below simply failed to deal with the point in their judgments.
37. She is correct, I think, in saying that these passages from the White Book are not directly referred to in the judgments. However, to my mind, the logically anterior point now is whether District Judge Anson was "entitled" to make the "unless order" that he did and that is the question to which the present appeal is limited.
38. It seems to me that Mr Killalea QC (with whom Mr Edwards again appeared for the Respondents) was correct to say that District Judge Anson was clearly aware of the normal procedure for the assessment of damages following a default judgment for damages to be assessed; he gave directions for that process to be followed in the event that the Appellant complied with the orders for disclosure of assets within the further time permitted by his order for compliance with the disclosure of assets order. He was persuaded, however, that the Appellant's long-standing default in complying with the disclosure orders required marking by an "unless order" with the sanction of a further judgment for a specific sum in the case of non-compliance.
39. Obviously, as it seems to me, the District Judge could have made an alternative form of "unless order" providing that, in the event of continued default, the Appellant should be debarred from defending the damages assessment, but leaving it to the Respondents still to prove their quantum claim by evidence and by submissions to the court as to their entitlement in law to the various heads of damage claimed. He did not take that course. I do not think that he erred in principle in not doing so.
40. There had been a persistent failure by the Appellant to comply with the disclosure order. That was an order that was relevant not simply to the policing of the freezing order, but also to the live issue as to the quantification of the Respondents' claim. It was known that an important part of that claim was novel in seeking to recover for the Deceased's estate compensation by reference to what might have been expected to be recovered in the divorce proceedings, but there had been judgment on liability, giving rise to the potential need to quantify the loss. The Appellant's flagrant contempt in failing to comply with the court's order had the potential to frustrate the damages assessment and could not be ignored.
41. At the time of the making of the "unless order" the District Judge was referred to JSC BTA Bank v Ablyasov (No. 8) [2013] 1 WLR 1331. In that well-known case, the defendant had been ordered to surrender to the tipstaff to meet a custodial sentence imposed upon him for contempt of court in failing properly to disclose his assets under the terms of a freezing order. The court had further ordered that in default of surrendering as directed and properly disclosing his assets he would be debarred from defending the claims brought against him and his defences would be struck out with liberty to the claimant to enter judgment against him. This court upheld the order made in the face of a challenge to the jurisdiction to make it. Mr Killalea referred us to paragraphs 168 to 171 of the judgment of Rix LJ in this case (which it is not necessary to quote again here) as showing clearly that the court had jurisdiction to make an "unless order" of the character made in this case.
42. I think it is clear that the court in this case did have jurisdiction to make the "unless order" in the form that it did. Miss McQuail submitted that the order in the Ablyasov case did not go so far as to make an order for the entry of judgment for a specific sum in the event of default. That, of course, is true. She argued that the District Judge had been entitled to go no further than debarring the Appellant from defending the claim, but still requiring the Respondents' to prove and establish their various heads of loss.
43. I consider that the court's jurisdiction is not limited in the manner that Miss McQuail contended. It was clearly open to the District Judge, in my judgment, to make an "unless order" in some form, given the Appellant's long-standing failure to comply with the order of Swift J. While he could have made an order of the more limited character that I have described, I do not see that he lacked jurisdiction to make the order that he did. There is nothing in the rules, or in the decided cases, to limit the power to specify the consequences of failure to comply with an "unless order" which prevents the making of an order in the terms of the order made here. Precisely how the District Judge sought to achieve compliance by the Appellant with the court's order was a matter for his discretion.
44. While it is clear that a judgment for damages to be assessed in the ordinary course requires the claimant to prove his damage and that there are procedural provisions to enable that process to be carried through, that does not mean that a defendant may not be deprived of the benefit of that process if he chooses to conduct himself, as this Appellant did, in a manner calculated to frustrate the conduct of the proceedings to his own advantage. As Mr Killalea submitted, the District Judge made provision for the process of assessment to be conducted, but he required compliance first with the long-ignored disclosure order made by Swift J. In my judgment, he was entitled to make that order.
45. I would add that, in support of his argument that the "unless order" was properly made, Mr Killalea argued that the Respondents would have been entitled in February 2012 to apply for judgment in default of acknowledgment of service in the sum of £1.5 million and for the sum specified for funeral expenses instead of judgment for a sum to be assessed. For this purpose, he submitted that the claim here was for a "specified sum" within the meaning of CPR 12.4(1)(a). He took us to the Particulars of Claim in which the prayer included claims for £1.5 million and an identified sum for funeral expenses, with reference to claims for those sums in various parts of the body of the pleading. He took us also to the commentary upon the rule in the White Book which reads as follows:

"a specified amount of money"

The former term "liquidated sum" is replaced by "specified amount of money". Default judgement can be entered for the specified sum, plus interest pursuant to r.12.6, plus fixed costs pursuant to r.45.4. However, it is important to note that "a specified sum of money" is wider than the old term "liquidated sum". Clearly it covers a case where the claim is for a debt. However, it appears that "a specified amount of money" covers any case where the claimant puts a figure on the amount of their claim whether it is debt, damages or any other sum. If the claimant chooses to put a value on their claim in a specified sum, the claimant can request a default judgment in that sum (plus interest if claimed: see r.12.6) and fixed costs (see r.45.4). The term "specified amount of money" is used not only in r.12.4 but throughout the CPR, see, e.g. r.26.2 on automatic transfer. Claiming a specified amount of money will cause the rules for automatic transfer to the defendant's home court to apply if the claim is defended. This change in practice accords with the system in Commonwealth countries where the law is based on Roman-Dutch principles."

46. Miss McQuail argued that the term "specified sum of money" is merely a modernisation of language, avoiding the more legalistic expression "liquidated sum" and that no change in the law is to be derived from such "updating" of language. She also asked us to note that the Claim Form itself identified the "Amount claimed" as "TBA".
47. No authority is quoted for the editors' interesting commentary in the White Book passage which I have quoted and, as this point clearly was not in the minds of any of the judges who have considered the case to date, I propose to say no more about it, save to record the submissions made.
48. The grant of permission to appeal by Lewison LJ was limited to the question "whether DJ Anson was entitled by his unless order of 21 December 2012 to order that in default of compliance judgment be entered for a quantified sum in relation to a claim for unliquidated damages without having heard evidence of loss…On the basis that ground 6 is limited to the point I have identified, I grant permission to appeal on that ground…". In the light of this strictly confined ground of appeal, I consider that what I have said above is sufficient for the purposes of deciding the appeal. I find that the judge was entitled to make the order that he did and it is not strictly necessary to enquire whether he was correct to exercise his discretion to do so. However, as I have already said, I do not think that the judge erred in principle in making the "unless order" in exercise of the discretion which I consider that he had. It would only be if such an error could be demonstrated that this court would interfere with the exercise of a discretionary power.
49. I do not ignore Miss McQuail's point that some of the heads of damage claimed were admittedly novel. That was always acknowledged by the Respondents and was known to the court. However, they had made it clear that they wanted to argue for a development of the law in this area. In the absence of an application to strike out any parts of the claim they were entitled to endeavour to do so and, when the matter came before District Judge Anson in December 2012, they had the benefit of the view expressed by Swift J, at the hearing of the application for the freezing order, in the face of the acknowledgment of the difficulties in the matter, that the claim was properly arguable. The Appellant had every opportunity to argue out the legal issues arising. He chose instead to ignore the court's orders and to frustrate the proper conduct of the proceedings. He was given by District Judge Anson a final opportunity to comply and to avail himself of the normal procedures for challenging alleged losses, but he chose not to take it.
50. Following upon her arguments upon the court's jurisdiction to make the unless order in the present form, Miss McQuail submitted that the judge's error on that point constituted a "fundamental procedural error" which would entitle the court to set the order aside pursuant to CPR 3.1(7): see Edwards v Golding [2007] EWCA Civ 416, without the necessity for the Appellant to apply for permission to appeal out of time. As can be seen, I do not consider that there was any procedural error in this case, let alone a fundamental one, that could trigger the jurisdiction under that rule.
51. For the reasons given, I would dismiss the first appeal.
52. Turning to the second appeal, the point here is whether Carr J erred in her decision not to direct a new return date under the original freezing order.
53. The decision is acknowledged to have been one of case management and that there are limited circumstances in which such a decision can be successfully challenged on appeal: see e.g. Broughton v KOP Football (Cayman) Ltd. & ors. [2012] EWCA Civ 143. Again, it has to be shown that the court below has misdirected itself in law or has erred in some point of principle.
54. For the Appellant it was argued that the judge should have started with the presumption that the Respondents should have ensured a return date was listed in accordance with CPR 25APD.5. That Practice Direction provides that a freezing order must provide for a return date "unless the court orders otherwise". Of course, the original order and the variation order both made provision for a return date. The second order provided for the parties to make joint application for a hearing date. It is also pointed out that the Respondents' solicitors stated in correspondence, prior to entry of the first default judgment, that in the absence of response from the Appellant, they would proceed to apply for a hearing date. In the meantime, however, having heard nothing from the Appellant, the solicitors applied for judgment and told the court that they did not feel that the matter needed to be listed at that time.
55. Miss McQuail said that the submissions addressed to Swift J in support of the application to omit any cross-undertaking in damages were misconceived and the return date would have allowed the Appellant to argue that the claim for £1.5 million was bound to fail as a matter of law.
56. I am content to accept that there is customarily an onus upon a claimant with the benefit of an interim freezing order to facilitate the reconsideration of the order made on application without notice on a return date. That onus was present in this case, even after the judgment in default on liability had been entered. It might be that after a judgment a claimant would have a stronger case for continuation of the order, but even so the matter should have been brought back.
57. It is necessary, however, to look at the matter in the round. Even though it can be said that the primary responsibility for arranging a return date lies with the claimant, here it was equally open to the Appellant to apply to have the matter brought back before the court. He did not do so and took no step in relation to the freezing order at all until over a year later, initially in June 2014 and then again in August 2014.
58. Carr J reviewed the overall position, as she was entitled to do. She was faced with an application for a listing of a return date in respect of an order made 2 ½ years earlier. In the meantime, matters had moved on. There was a judgment in the Respondents' favour. The Appellant was appealing to this court against the refusal to set it aside and applying for a stay of execution on the basis that there was no prejudice to the Respondents because of the freezing order. She considered that the disclosure of assets, made belatedly, was inadequate and that there was clear evidence of dissipation. She also noted that a primary feature of the application related to the extent of the permissible release of funds for legal costs which she clearly considered was capable of resolution within the context of the exceptions to the freezing order.
59. The judge clearly had a discretion to exercise. I can find no fault in the manner in which she exercised it. She reviewed all the material circumstances and decided that it was not necessary, as matters stood before her, to re-list the original 2012 application for a freezing order. In my judgment, she was entitled to do so. I would, therefore, dismiss the second appeal.

(D) Outcome

60. For the reasons give above, I would dismiss both appeals.

Lady Justice Sharp:

61. I agree.

Lady Justice Thirlwall:

62. I also agree.