The Serious Organised Crime Agency v Azam [2013] EWCA Civ 970 (31 July 2013)

The Serious Organised Crime Agency v Azam [2013] EWCA Civ 970 (31 July 2013)

The Court of Appeal held that the judge erred in requiring Mr Azam to prove the absence of other available assets and in finding, without specific evidence, that he had undisclosed assets sufficient to meet legal expenses. The correct approach is that the applicant must show it is just to permit use of frozen assets, but is not required to prove the negative. In the absence of specific evidence or substantial grounds for suspicion of other available assets, prior non-disclosure alone is insufficient to deny an exclusion for legal expenses. The appeal was allowed on this basis.

Citation
[2013] EWCA Civ 970
Parties
Claimant/respondent: The Serious Organised Crime Agency; Defendant/appellant: Amir Azam
Jurisdiction
England and Wales
Judgment Date
31 July 2013
Procedural Posture
Civil Appeal / Appeal From High Court (queen's Bench Division) to Court of Appeal on Refusal to Vary Property Freezing Order
Outcome
Appeal allowed (on first ground only); permission to appeal granted (on first ground only); order below set aside.
Legal Topics
Property Freezing Orders, Legal Expenses Exclusions, Burden of Proof, Article 6 ECHR, Article 1 Protocol 1 ECHR, Asset Disclosure, Civil Recovery Proceedings
Civil Procedure Proceeds of Crime Human Rights Property Freezing Orders Legal Expenses Exclusions Burden of Proof Article 6 ECHR Article 1 Protocol 1 ECHR +2 more

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Parties

The Serious Organised Crime Agency

Claimant/respondent

Amir Azam

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From High Court (queen's Bench Division) to Court of Appeal on Refusal to Vary Property Freezing Order

Legal Issues

  1. 1 Whether the applicant must prove the absence of other available assets to obtain an exclusion from a Property Freezing Order for legal expenses
  2. 2 Whether the judge was entitled to find that the appellant had undisclosed assets sufficient to meet legal expenses
  3. 3 Correct approach to burden of proof in applications for legal expenses exclusions under the Proceeds of Crime Act 2002

Ratio Decidendi

The Court of Appeal held that the judge erred in requiring Mr Azam to prove the absence of other available assets and in finding, without specific evidence, that he had undisclosed assets sufficient to meet legal expenses. The correct approach is that the applicant must show it is just to permit use of frozen assets, but is not required to prove the negative. In the absence of specific evidence or substantial grounds for suspicion of other available assets, prior non-disclosure alone is insufficient to deny an exclusion for legal expenses. The appeal was allowed on this basis.

Court Disposition

Appeal allowed (on first ground only); permission to appeal granted (on first ground only); order below set aside.

Orders

  • Permission to appeal granted on first ground (availability of other assets)
  • Appeal allowed; exclusion from Property Freezing Order to be made to permit payment of legal expenses from frozen assets