England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/06/2013

MR JUSTICE GLOBE:

SUMMARY

1. Between 28 April 2010 and 3 May 2013, the first respondent (Azam) was represented by the interested party (Saunders) in proceedings for a civil recovery order (CRO) brought by the claimant (SOCA) pursuant to S.243(1) of the Proceeds of Crime Act 2002 (POCA). Since 3 May 2013, he has been and continues to be represented by Rahman Ravelli Solicitors. SOCA's re-amended CRO claim is listed for trial on 15 July 2013. The total sum claimed is in the region of £3.5 million.
2. There are two applications before the court for the variation of a property freezing order (PFO), made by Silber J on 22 February 2010 and subsequently varied and extended, in connection with the CRO.
3. By an application dated 13 May 2013, Saunders apply to vary the PFO to exclude £223,796.53 plus VAT from the PFO to meet Azam's past legal expenses.
4. By an application dated 16 May 2013, Azam applies to vary the PFO to exclude from the PFO present and future legal expenses of Rahman Ravelli associated with defending the CRO claim.

BACKGROUND FACTS

5. Azam resided in the United Kingdom until about July 2002.
6. SOCA's claim is that, since at least 1996, Azam has been engaged in criminal conduct, principally drug trafficking and money laundering, thereby acquiring real property and cash in bank accounts which amount to recoverable property under POCA. Reliance is placed on a lack of sufficient legitimate income to justify his assets. Reliance is also placed on surveillance, carried out by the National Crime Squad over a lengthy period prior to Azam leaving the country in 2002, which establishes his participation in activity consistent with drug trafficking and his close association with many people who have been convicted of such offences. In granting the PFO, Silber J accepted that SOCA had a good arguable case against the respondents.
7. Azam's dealings with two Luxembourg bank accounts are of particular relevance to the present applications. In September 1999, he opened a bank account in Luxembourg at the Banque De Luxembourg (BDL). In the period up to April 2000, it received five cash deposits totalling US$500,000. In April 2000, he opened a second bank account in Luxembourg at the Kredietbank (KBL) using a pseudonym and into which he deposited €255,645. It is SOCA's case that, during the same period of September 1999 to April 2000, Azam was subject to police surveillance in the United Kingdom and was seen associating with numerous individuals who were involved in and later convicted of a conspiracy to supply controlled drugs.
8. In July 2002, Azam went to live in Dubai.
9. In February 2006, Azam was arrested in Dubai and held in custody on drug trafficking and money laundering offences allegedly committed in Dubai. The allegation of drug trafficking related to 2,500 kilograms of cannabis. The allegation of money laundering included allegations in relation to Dubai bank accounts held by Azam in respect of which there remain credit balances totalling about £425,000.
10. In March 2007, Azam was convicted and sentenced to 25 years imprisonment for drug trafficking and 5 years imprisonment concurrent for money laundering. He appealed.
11. Pending the appeal, on 22 February 2010, the assets of the respondents were frozen by the PFO made by Silber J pursuant to S.245A of POCA. Specified assets included various properties and bank accounts including Azam's account at KBL European Private Bank, Luxembourg (KBL). At the time of the application for the PFO, SOCA was unaware of the existence of the BDL account.
12. Paragraph 4 of the PFO is in the following terms:

"4. Under Section 245C of the Proceeds of Crime Act 2002 and the Proceeds of Crime Act 2002 (Legal Expenses in Civil Recovery Proceedings) Regulations 2005, this Order shall be subject to an initial exclusion for the release of restrained funds to pay for legal representation in connection with this Order, in that you shall be entitled to a sum not exceeding £3,000 to meet your reasonable legal costs so that you may:

a. take advice and comply with this Order;

b. prepare a statement of assets in order to obtain the release of further property to pay further legal expenses in accordance with paragraph 7A.3 of the Civil Recovery Proceedings Practice Direction as amended on 1 January 2006; and

c. if so advised, apply for the Order to be varied or set aside;

But any sums released for this purpose may only be released in accordance with the provisions of Part 3 of the Proceeds of Crime Act 2002 (Legal Expenses in Civil Recovery Proceedings) Regulations 2005."

13. Paragraph 5 of the PFO is in the following terms:

"5. You may be entitled to the release of restrained funds to pay for legal representation in connection with this Order in excess of the initial exclusion as detailed in paragraph 4 above. A request for the release of a sum in respect of reasonable legal expenses (such sum being additional to the £3,000 as provided by way of initial exclusion to this Order at paragraph 4 above) must be made in writing to SOCA and before any release can be made certain conditions must be fulfilled. You and your legal adviser are referred to the Proceeds of Crime Act 2002 (Legal Expenses in Civil Recovery Proceedings) Regulations 2005 (SI 3382 of 2005) and the Civil Recovery Proceedings Practice Direction."

14. Paragraph 10 of the PFO required the respondents within 21 days of service of the order to serve statements certified by a statement of truth informing SOCA of all of their assets whether in or outside England and Wales.
15. Paragraph 12 of the PFO required Azam to repatriate the funds in the KBL account. The account was also frozen by the authorities in Luxembourg and it took time for the funds to be repatriated.
16. Shortly after the PFO was made Azam's appeal succeeded. The convictions were quashed by the Abu Dhabi Federal Supreme Court. The case was remitted back to the Abu Dhabi Federal Court of Appeal for retrial. There were numerous adjournments in relation to that process. The ultimate decision was that there is to be no retrial of the drug trafficking allegation but there is to be a retrial of the money laundering offence. Pursuant to that decision, Azam was eventually released from custody on 16 March 2013 and he returned to this country on 19 March 2013.
17. In the intervening period, on 28 April 2010, Saunders commenced acting for Azam. In correspondence, Saunders confirmed that they were not representing Azam in the criminal proceedings in UAE but were otherwise "acting for him generally in relation to all proceedings".
18. According to a confirmation received from the UAE Ministry of Foreign Affairs, the PFO documents were served on Azam on 18 August 2010. He had 21 days to file a statement of assets. No statement was filed.
19. In October 2010, Saunders applied to set aside the PFO. It was opposed by SOCA. It was listed for hearing in January 2011. The application was withdrawn prior to the hearing. The obligation on Azam to file a statement of assets continued. Saunders contended that it was not possible to file a statement because of a lack of access to Azam who remained imprisoned in Dubai and it was very difficult to take instructions.
20. Azam's statement in support of his application includes a description of the conditions under which he says he was being held in prison. He states that he had to share an overcrowded single room with many other prisoners with food and water being scarce. He was in a constant state of malnutrition and dehydration. There was no fixed exercise regime. He was under constant threat of being tortured or being thrown into solitary confinement. His contact with the outside world was limited to one ten minute social visit each week, an occasional twenty minute private visit and a fifteen minute monthly allowance to make telephone calls. He states that his wife, who had returned to England, made him aware of the CRO and PFO proceedings in a telephone call. He makes no reference to being served with the proceedings. To the contrary, he states that efforts made to provide him with the paperwork in relation to the proceedings failed because the prison refused to allow him to receive any paperwork that was not in Arabic. He claims that he did not see any paperwork until he saw his solicitor in prison in April 2012. He says that the situation improved slightly in 2011 when phones were fitted in the prison and he had greater access to his lawyers particularly later on in 2012 when SOCA agreed to an exclusion of £750 to be allowed as credit to his telephone account. Notwithstanding all of this, he says that in total he has spent only 25 hours with his lawyers dealing with these proceedings.
21. Since the hearing, Mr Rahman of Rahman Ravelli (but not Saunders) has produced to me a witness statement dated 23 May 2013 by Mr Brian Rose-Smith, a senior solicitor employed by Saunders. The witness statement exhibits a "full-view billing guide" of the work done on behalf of Azam by Saunders. Within it there is a record of a telephone attendance between Mr James Saunders, the senior director of Saunders, and Azam on 23 February 2011. Mr Rose-Smith has spoken with Mr Saunders who does not now have any recollection of the contents of the call. The entry records a telephone call Azam from prison in the UAE. The entry includes a reference to the KBL account. The following is then recorded:

"He has another bank account in Luxembourg, but can't remember the name of the bank, will think about it."

22. On 4 October 2011, an order was made by Collins J for the money in the KBL account to be repatriated immediately to a designated client account of Saunders. Saunders were prohibited from accessing the money for any purpose without the written consent of SOCA. In particular, no payment of legal costs was to be made save to the extent that an order was made or an agreement was entered into with SOCA for such payment to be made. Azam was ordered to provide his statement of assets within six weeks.
23. On 25 January 2012, the money in the KBL account was eventually repatriated and the sum of £277,361 was transferred from the KBL account into Saunders' client account. Saunders state that the current balance after exclusions for legal costs and other exclusions permitted to cover expenses in relation to Azam's personal needs is £203,564. Because the money is in the jurisdiction, SOCA has maintained that the money is covered by the terms of the PFO.
24. In February 2012, after discussions between SOCA and Saunders, SOCA agreed to a "without prejudice" exclusion of £12,000 to be paid from the repatriated funds to cover the costs and disbursements of a trip to Dubai to take instructions to enable a statement of assets to be prepared. Mr Rose-Smith travelled to Dubai on 16 February 2012 returning a week later on 23 February 2012. Instructions were received and a witness statement dated 13 April 2012 containing a statement of assets was filed. The witness statement concluded with a statement of truth signed by Azam. In paragraph 12 he stated that the statement was a full disclosure of his assets in the United Kingdom, the UAE and Spain and he had no assets in any other jurisdiction. The statement included reference to the repatriated funds from the KBL account but made no mention of any other account in Luxembourg. In Mr Rose-Smith's third witness statement for this application, he states that the work done was actually billed at £17,930 but the exclusion provided for only a limited recovery of £12,000.
25. On 17 April 2012, SOCA agreed another "without prejudice" exclusion of £20,000 to be paid from the repatriated funds to cover a second trip to Dubai in May 2012 to take further instructions and to enable a response to be prepared to the claim. Mr Rose-Smith travelled to Dubai on 18 May 2012 and returned a week later on 25 May 2012. That led to the production of a 27 page, 115 paragraph, "Second Witness Statement of Amir Azam". It concluded with a statement of truth signed by Azam and dated 31 May 2012. Paragraph 115 stated as follows:

"115. As indicated above, there has been insufficient time to deal with all of the matters raised by the claimant in their claim and set out in the statement of RD. I have done my best in the time available. My solicitor, Brian Rose-Smith has provided me with a typed note of the answers that I have given during the meetings with him from Sunday 20 to Wednesday 23 May and has read over to me the notes that he took on his last visit to me on Thursday 24 May before he returned to London. I confirm that they are a fair reflection of what I have said to Mr Rose-Smith in response to SOCA's claim. I understand from Mr Rose-Smith that he will draft a statement on my behalf that will accurately reflect the account that I have given. Because it will not be possible to provide me with a copy of the statement for me to sign and have it returned by Friday 1 June 2012, the date by which my evidence must be served on the claimant, I have provided Mr Rose-Smith with a signed blank sheet of A4 on which to print the last page of my statement."

26. The statement specifically dealt with the topic of "Money Laundering in Luxembourg" and referred to the KBL account. At paragraphs 56 to 61 of Azam's statement, he said he had travelled to Luxembourg at the suggestion of his cousin to open a high interest account at KBL and he had deposited the money in cash. He stated that it was money from legitimate car sales and it was someone who was employed at the bank who proposed that he use a pseudonym. No other Luxembourg bank account was referred to in the statement.
27. There is a "Third Witness Statement of Amir Azam". Azam signed and dated the statement of truth. The date on the document is 3 July 2012. Paragraphs 2-4 and 20 state as follows:

"2. My solicitor, Brian Rose-Smith attended upon me between 20 and 24 May inclusive to take my instructions in response to SOCA's claim. However, there was insufficient time to deal with all of the issues raised in the statement of Ruth Davison. Legal visits at the prison were limited to mornings only and for between 2 and 2½ hours. In consequence we were unable to complete the taking of instructions to deal with my explanation for all of the properties the subject of the claim.

3. It will be appreciated that the evidence was dealt with sequentially and I had to spend a great deal of time dealing with accusations from drug trafficking to murder as part of SOCA's underlying case that all the properties listed were funded from my alleged criminal activities as set out in Ms Davison's witness statement. As will be seen I have addressed each of those allegations in some detail.

4. I have since been able to prepare a note which, inter alia, summarises the history of acquisition in relation to those properties not dealt with in my statement dated 31 May 2012 and to make arrangements through a friend to fax the note to my sister Shazia in London for onward transmission to my solicitors.

20. I have approved the submission of this statement with Mr Rose-Smith on the telephone today 3 July 2012 at 13.55 and I am content for him to use a blank sheet of paper with my signature thereon as the last page of the document as I am unable, because of my circumstances to sign it in person."

28. On 11 July 2012 and 16 July 2012, by agreement with SOCA, further exclusions of £12,000 and £573.98 were respectively paid out of the expatriated funds to enable Saunders to pay counsel's fees and the fees payable for the translation of a UAE judgment.
29. On 25 July 2012, the Supreme Court delivered the decision in Perry v SOCA [2012] UKSC 35 which held that a CRO could not be made in relation to property out of the jurisdiction. That led to the amendment of the claim in September 2012 to omit such property from SOCA's claim. SOCA thereafter refused requests to agree to any further exclusion to meet legal costs asserting that Azam was free to sell his Spanish property and fund his legal costs from the proceeds. Saunders sought to explain that difficult economic conditions in Spain made that exercise difficult. There has been considerable correspondence between Saunders and SOCA as to the practicality of Saunders being paid their costs out of funds from the Spanish property.
30. During October 2012, a further exclusion in the region of £2,700 to be paid out of the expatriated funds was agreed between SOCA and Saunders. There is a dispute (the details of which I do not find relevant for present purposes) as to what the payments were for but were either for legal costs in relation to divorce and possibly were to cover fees in relation to the UAE criminal case.
31. By a letter dated 30 November 2012, SOCA wrote to Saunders and drew their attention to the fact that SOCA had discovered the existence of the BDL bank account with a credit balance of about £350,000. SOCA sought an explanation for the omission by Azam of the existence of the BDL account and in the circumstances deemed it inappropriate for any further release of funds out of the repatriated KBL funds.
32. In letters dated 9 January 2013 and 21 January 2013, SOCA continued to refuse a further exclusion for past costs that were stated by Saunders to be £100,453 plus VAT. However, SOCA made a "without prejudice" offer for there to be an exclusion for future costs. SOCA stressed the "without prejudice" aspect of the offer given issues surrounding the case generally. One issue was an application being made by Saunders, relying on the Perry decision, for the repatriated funds to be returned to Azam outside the jurisdiction. SOCA specifically reserved the argument for any contested exclusion hearing that Azam had other assets available to him from which he could pay any outstanding costs.
33. On 27 February 2013, the application for the KBL funds to be returned to Azam out of the jurisdiction was heard by Sir Raymond Jack who refused the application on 4 March 2013.
34. On 16 March 2013, Azam was released from custody in UAE and he returned to this country on 19 March 2013 with the assistance of an agreed exclusion of £555 being paid out of the expatriated funds to pay for his airline ticket from Dubai. The money laundering retrial remains outstanding. Azam's bank accounts in Dubai in the sum of about £425,000 remain frozen by the Dubai authorities.
35. On 25 March 2013, Saunders wrote to SOCA relying on the "without prejudice" exclusion set out in SOCA's letter of 9 January 2013 with a copy of their bill of costs and disbursements from 9 January 2013 to 19 March 2013 amounting to £25,491. Saunders contend that with no formal objection having been received from SOCA, they were entitled to and did transfer the funds from its client account drawing on the KBL funds to meet the invoice. SOCA dispute that there was any entitlement to such transfer. I do not find it necessary to resolve the dispute. It has been clarified that the sum of £223,796 plus VAT is additional to the total of £74,034 that Saunders state has already been transferred from the expatriated funds.
36. In a letter dated 26 March 2013, Saunders provided Azam's explanation for the non disclosure of the BDL account.

"………our client instructs us that when he was providing disclosure he relied upon his wife to provide him with details of his various accounts, he at the time being incarcerated in Shajah Central jail and had been for six years. He has a number of accounts in different jurisdictions and believed that he had disclosed all, based upon the information provided to him by his wife. It would appear she was unaware of the account with [BDL] and Mr Azam at the time of disclosure was genuinely confused over which accounts he had and believed that the KBL account was the only account he then had in Luxembourg [my emphasis]…….."

37. The explanation is to be contrasted with what appears in the telephone note of 23 February 2011 when Azam apparently revealed to Mr Saunders that he did have a second Luxembourg account.
38. The explanation is also to be contrasted with Azam's own explanation for the non-disclosure in his statement for these proceedings dated 15 May 2013. He relies on the difficult circumstances of giving instructions. He says that when he saw Mr Rose-Smith in April 2012 he provided details of his assets to the best of his ability and with no paperwork in front of him. He was relying on information given to him by his wife in short telephone calls. He recalls her making reference "to the Luxembourg accounts and presumed she had included both accounts [my emphasis]. She in turn then emailed my lawyers who prepared the statement with little input from me". He says he never saw or signed any of the statements served on his behalf and he was "at the mercy of my lawyers and whilst I am certainly not suggesting that they omitted this bank account, I was simply not afforded the resources necessary to prepare this which is a recipe for disaster". He says he never had sight of the statement of his assets and was "unaware of the Luxembourg account being omitted until I made a routine call to my lawyers. I immediately phoned my wife to notify her of this mistake. She said she had included all the accounts to the best of her knowledge and it was simply an error [my emphasis]".
39. Mr Rose-Smith denies that he had any knowledge of any second Luxembourg bank account before 30 November 2012.
40. On 9 April 2013, the Luxembourg authorities removed their freezing order on the funds in the BDL account.
41. On 16 April 2013, Saunders wrote to SOCA in further reliance on the "without prejudice" exclusion of 9 January 2013 seeking an exclusion to cover Azam's costs from 1 February 2013 up to and including the trial in the sum of £133,640.
42. In his statement of 15 May 2013, Azam accepts that by 16 April 2013 he knew the BDL account had been unfrozen and was taking steps to go to Luxembourg to withdraw the funds. He says he did not know that Saunders were applying for a further exclusion. Miss Bates, on behalf of Saunders, has indicated that Saunders did not find out that the BDL account had been unfrozen until 26 April 2013 and were unaware that Azam was taking steps to withdraw the funds.
43. On 25 April 2013, the Crime and Courts Act 2013 was enacted with immediate effect, amending POCA to enable overseas property to be subject to civil recovery proceedings, thus reversing Perry. On the same day, SOCA was informed by the authorities in Luxembourg that Azam had an appointment at BDL at 10 am on 26 April 2013 in order to withdraw all of the funds from the account in cash. SOCA made an urgent without notice application to freeze the account, which application was successful.
44. On 26 April 2013, Azam arrived at BDL to withdraw the funds. By that time, the previous day's order had been made known to the bank. There was no release of funds. It is SOCA's case that Azam arrived at the bank with a Belgian lawyer. Azam says he arrived with his son having travelled on a ferry to Dunkirk with his son paying £65 for the tickets on his credit card. There is no evidence supporting the contention that Azam was in the company of a Belgian lawyer. There is no documentation or statement supporting the contention that Azam was in the company of his son.
45. On 2 May 2013, Saunders contacted SOCA for an answer to their request made on 16 April for exclusion. SOCA refused the request.
46. On 3 May 2013, Rahamn Ravelli wrote to Saunders together with a signed authority from Azam stating that Azam had instructed them to act on his behalf.
47. It is against this background that the applications are made.

LEGAL FRAMEWORK

48. Pursuant to S.245C of POCA the court has a general power to order exclusions from the prohibition on dealing with property to which a PFO applies. The relevant provisions are as follows:

"(1) The power to vary [a PFO] includes (in particular) power to make exclusions as follows –

(a) power to exclude property from the order, and

(b) power, otherwise than by excluding property from the order, to make exclusions from the prohibition on dealing with the property to which the order applies.

(2) ……..

(3) ……..

(4) An exclusion may be made subject to conditions.

(5) Where the court exercises the power to make an exclusion for the purpose of enabling a person to meet legal expenses that he has incurred, or may incur, in respect of proceedings under this Part, it must ensure that the exclusion –

(a) is limited to reasonable legal expenses that the person has reasonably incurred or that he reasonably incurs,

(b) specifies the total amount that may be released for legal expenses in pursuance of the exclusion, and

(c) is made subject to the required conditions (see section 286A) in addition to any conditions imposed under subsection (4).

(6) The court, in deciding whether to make an exclusion for the purpose of enabling a person to meet legal expenses of his in respect of proceedings under this Part –

(a) must have regard (in particular) to the desirability of the person being represented in any proceedings under this Part in which he is a participant, and

(b) must, where the person is the respondent, disregard the possibility that legal representation of the person in any such proceedings might, were an exclusion be made available under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012……

(7) ……….

(8) The power to make exclusions must, subject to subsection (6), be exercised with a view to ensuring, so far as practicable, that satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct is not unduly prejudiced."

49. The relevant extracts of the Civil Recovery Proceedings Practice Direction state as follows:

"5B.1 When the court makes a PFO …… on an application without notice, it will normally make an initial exclusion from the order for the purpose of enabling the respondent to meet his reasonable legal costs so that he may –

(1) take advice in relation to the order;

(2) prepare a statement of assets in accordance with paragraph 7A.3;

(3) if so advised, apply for the order to be varied or set aside.

5B.2 When it makes a PFO ……. before a claim for a recovery order has been commenced, the court may also make an exclusion to enable the respondent to meet his reasonable legal costs so that (for example) when the claim is commenced –

(1) ………….

(2) he may apply for a further exclusion for the purpose of enabling him to meet his reasonable costs of the proceedings.

5B.3 Paragraph 7A contains general provisions about exclusions made for the purpose of enabling a person to meet his reasonable legal costs."

"7A.4 The court –

(1) will not make an exclusion for the purpose of enabling a person to meet his reasonable legal costs (including an initial exclusion under paragraph 5B.1);

(2) …….

if it is satisfied that the person has property to which the property freezing order…….does not apply from which he may meet these costs."

DISCUSSION

50. Saunders' application is for a variation of the PFO to exclude the sum of £223,796.53 plus VAT to pay for past legal expenses in representing Azam during the last three years. The justification for it being so large is that there have been numerous legal complexities defending the interests of Azam, particularly while he was in prison in the UAE, in relation to the CRO proceedings generally, his allegations of torture, the implications of Perry and the changes in the law arising from the enactment of the Crime and Courts Act. Some legal expenses have been excluded by agreement but no agreement has been reached about what is outstanding. Miss Bates argues that there is no requirement that applications for exclusion have to be made in advance of work being undertaken. The power pursuant to S.245C of POCA to order an exclusion of property from the PFO to meet legal expenses includes a power to order exclusion for legal expenses that have been incurred. Miss Bates further argues that the inter-action of subsections (6) and (8) means that, although as far as practicable the power should be exercised to ensure SOCA's right to obtain a CRO is not unduly prejudiced, that is subject to the desirability that Azam should have representation. Reliance is placed on the decisions in SOCA v Szepietowski and others [2009] EWHC 344 (Ch) and SOCA v Azam [2011] EWHC 1551 (Admin) for the application of the principle in relation to future legal expenses. No submission has been made by SOCA to suggest it does not equally apply to past legal expenses. Miss Bates also contends that there is no evidence that Azam has any assets other than those identified by SOCA in the PFO. There is therefore no alternative but to seek exclusion of those frozen assets. Work has been done. Legal expenses are payable. The court is not tasked with carrying out any taxation of the bill of costs. Payment out of any exclusion would be covered by the limitations on the amount to be paid pursuant to the provisions of the Proceeds of Crime Act 2002 (Legal Expenses in Civil Recovery Proceedings) Regulations 2005. Payment of the total bill would be subject to taxation of the bill in due course.
51. Azam's application is for a variation of the PFO to pay for future legal expenses of his new solicitors Rahman Ravelli, in representing him in challenging the quantum of legal expenses being claimed by Saunders and in representing him in the CRO trial proceedings. In relation to Saunders' application, Azam's case is that he did not agree the bills now being claimed, there is no adequate breakdown of their bills and it is impossible to understand from the documentation submitted by Saunders how such a large sum has been expended. In relation to Azam's own application, Mr Harries relies upon the priority of S.245C(6) to ensure that Azam is represented in the CRO proceedings and seeks exclusion to permit that to happen. He too argues that SOCA have no evidence to suggest that Azam has any other assets except those within the PFO out of which Azam could provide for his own representation.
52. SOCA does not disagree with the priority of S.245C(6) over S.245C(8).
53. SOCA's response to both applications is that, either directly or indirectly, Paragraph 7A.4 of the Practice Direction applies. The court should not make an exclusion for the purpose of enabling Azam to meet his reasonable legal costs, or for Saunders to obtain their reasonable legal costs in representing Azam, if the court is satisfied that Azam has property to which the PFO does not apply from which Azam may meet such costs. That proposition has two elements. First, in relation Saunders' claim, pursuant to the Practice Direction and to S.245C(5) of POCA, the court must ensure that any exclusion is limited to reasonable legal expenses that Azam has incurred. Secondly, the court should not make exclusion if it is satisfied that Azam has unfrozen assets out of which he is able to pay his reasonable legal expenses.
54. In relation to reasonableness, Saunders' bill of costs is annexed to their letter of 16 April 2013. As already set out, the letter details the difficulties that have been encountered in representing Azam. The work has been handled by solicitors of varying grades from senior partner down to trainee solicitor. A large proportion of the bill relates to 943 hours of preparation amounting to a sum of about £178,000. That is an extraordinarily long period of time preparing documentation and applications that relate to the proceedings summarised above. It also excludes all the travel time and attendances associated with the two trips to Dubai to obtain Azam's detailed instructions. Lest there be any doubt about it, 943 hours preparation, beyond the time and preparation spent in the course of those two one-week trips to Dubai, is the equivalent of almost half a year's work of 8 hour days working exclusively on the case. It is therefore no surprise that Azam has required some detailed explanation beyond the mere citation of the figures in the bill to be provided to substantiate such an enormous amount of preparation on the case. Since the hearing, I have become aware of the fact (from information supplied by Mr Rahman rather than from Saunders) that Mr Rose-Smith has recently produced a schedule of work done listing the details of bill. It was while that was being done that the telephone note of 23 February 2011 was discovered.
55. I do not under-estimate the difficulties facing Saunders in representing Azam. I am also not conducting any taxation exercise in relation to the bill of costs. I am satisfied that justifiable work has been done and that the sum due to them is likely to be a sizeable sum. I also have no doubt that a significant period of time will have been needed to prepare all stages of Azam's case. However, notwithstanding the difficulties, the contentions of both Mr Harries and Mr Sutcliffe QC about the unreasonableness of the claim have considerable force. I am not prepared to go as far as to say that it will be impossible for Saunders to justify their bill on taxation. However, I do not regard the bill, the letter in support, the statements from Mr Rose-Smith, the submissions made by Ms Bates and the subsequently submitted schedule of work done as providing any sufficient explanation to satisfy me that the bill is reasonably drawn and what amounts to total costs in the region of £350,000 (£223,796 plus VAT plus £74,034 already paid) are due and payable. For this reason alone, I refuse Saunders' application for exclusion of the sum claimed.
56. In relation other assets, Mr Sutcliffe relies on five points which he submits should satisfy the court that Azam has not provided full disclosure of his assets in his statement of assets and has other unfrozen assets to pay whatever is due to both firms of solicitors.
57. First, it is submitted that Azam failed to disclose the BDL account and his explanation for that failure when SOCA later found out about the account lacks credibility. I will return to this point below.
58. Secondly, it is submitted that Azam managed to fund his representation in relation to the criminal proceedings in the UAE without seeking exclusion from the funds restrained by the PFO. His explanation is that he funded it out of the sale of two motor vehicles. In his witness statement, he said that he would produce evidence to establish that the money did come from such sales. It was not forthcoming by the time of the hearing. As such, Mr Sutcliffe submitted that the proposition lacks credibility and further demonstrates that Azam's statement of assets is misleading. Since the hearing, Mr Rahman has produced confirmation that the UAE lawyer's account has been paid, but it includes no evidence of the source of the money that was used to pay the lawyer.
59. Thirdly, it is submitted that Azam continued to instruct Saunders to apply for exclusion when he was in direct contact with BDL to withdraw all of the funds in that account and knew the funds were unfrozen and did not form part of the PFO.
60. Fourthly, it is submitted that Azam's attendance at BDL on 26 April 2013 with a Belgian lawyer shows he had funds to make the trip and to secure the services of a foreign lawyer. In his witness statement, he said that his son could confirm that he was the person who paid for the trip and was with Azam at the bank. No confirmation was forthcoming by the time of the hearing. Since the hearing, Mr Rahman has produced correspondence from a Belgian lawyer stating that he was not with "our mutual client" at BDL. Whilst that is evidence in support of the fact that Azam was not with a lawyer from that Belgian law firm, it does not prove he was not with some other Belgian lawyer or explain why Azam has Belgian lawyers and how he is paying them to work for him.
61. Fifthly, it is submitted that Azam, through his eldest son, has been engaged in contentious High Court child custody proceedings with the second respondent. This too suggests that he has had other resources to pay for such proceedings. Azam has produced a CLS Funding Certificate dated 3 July 2012 to support the proposition that his son was in receipt of public funding for the proceedings. However, it is an emergency certificate. It only remained in force for four weeks. No documentation has been produced for any period after its expiry.
62. In order to refuse the applications the court must be satisfied that Azam has other unfrozen assets out of which he can pay for his representation. Points two to five raise suspicion about Azam's financial circumstances. Notwithstanding the additional information produced by Mr Rahman since the hearing, Azam has failed to produce evidence about the cars and his son's involvement in the trip to Luxembourg. The correspondence from the Belgian lawyers does not prove that Azam did not attend the bank with a lawyer and it raises new concerns as to how he is paying for lawyers in Belgium. The CLS document is unsatisfactory. More satisfactory documentation could have been produced if his case is as stated. He has failed to produce it. Azam is here in this country, is free to have made arrangements for the production of more satisfactory documentation and the taking of witness statements. He has failed to arrange for either of these things to be done. That said, there is no evidence that he did pay for his legal advisers in UAE with resources other than the proceeds of sale of two cars. There is evidence that he did not turn up at BDL with the Belgian lawyer referred to in the letter produced by Mr Rahman. There is no evidence that he paid for the trip with any unfrozen assets. The CLS certificate suggests that emergency funding was allowed and it would be no surprise to find out that that certificate was extended. Finally, Saunders confirm that the application that was being made by them in April was in ignorance of the existence of the BDL account and there is nothing in the papers that establishes that Azam had notice of Saunders' application to the court. My conclusion is that points two to five raise suspicion but no more. Standing alone, they do not convince me that Azam has unfrozen assets. If they stood alone, I doubt that SOCA would have raised objection to any reasonable application.
63. The key point is the first point. The circumstances of travelling from England to Luxembourg to open two completely different bank accounts into which hundreds of thousands of pounds of cash were deposited is not something that one would forget. They were deliberate actions. They required guile, effort and planning. If the truth is that he only opened two Luzembourg accounts, I reject the proposition made by him that he would have needed the assistance of his wife to inform him about them. I am satisfied that Azam knew the difference between the two accounts and he knew roughly how much was in each. He even partly identified the second account to Mr Saunders in February 2011. I am further satisfied that he knew that he had to provide a full and complete statement of his assets and not just respond to what SOCA knew existed. He was in prison and I do not underestimate the difficulties inherent in that fact. However, he had plenty of time within which to think and to give his instructions. During April and May 2012, he was in the company of Mr Rose-Smith, a senior solicitor, for almost 25 hours discussing his assets. The detailed and professional way that Mr Rose-Smith went about the production of the statement and the defence, including reading his notes back to Azam, underline the care he was taking to ensure that both documents were an accurate reflection of what Azam had told him. The contradictory explanations later given by Azam as to why the existence of the BDL account was omitted are illuminating. I am satisfied that Azam appreciated that SOCA only knew about the KBL account and deliberately chose not to disclose the BDL account.
64. The consequence of this finding is that I am satisfied that Azam's statements of truth cannot be relied upon. I am also satisfied that I cannot rely upon Azam's statement that he has no unfrozen assets. To the contrary, I am satisfied that he has not provided full and frank information about his finances and has other assets which have not yet been discovered. Given the sums that have been deposited in the accounts that have been discovered, I am satisfied that whatever is deposited elsewhere will be a sizeable sum out of which he can pay the reasonable legal expenses of both his past and present solicitors.
65. For these reasons, both applications must be dismissed with costs to be assessed in the absence of agreement.