25/02/2025

Ancillary orders, double jeopardy and the limits of the court’s inherent jurisdiction

In the most recent – and perhaps final – instalment in the long-running proceedings between Deutsche Bank and Alex Vik and Sebastian Holdings Inc, on 12 February 2025, the Commercial Court (Cockerill J) refused an attempt by Deutsche Bank to obtain an order requiring Mr Vik to come to England to be cross-examined (again) in relation to Sebastian Holdings’ assets, under CPR Part 71 ([2025] EWHC 283 (Comm)). Tony Beswetherick KC and Rupert Hamilton appeared for the successful respondent, Mr Vik.

A Part 71 order can only be made against an individual who is a current director of a corporate judgment debtor and who is within the jurisdiction. The bank attempted to overcome the fact that neither of those requirements was met by arguing that the order it was seeking was “ancillary” to a Part 71 order that it had obtained against Mr Vik in 2015. It contended that it was therefore within the court’s inherent jurisdiction to make another Part 71 order as a means of enforcing the 2015 order.

Cockerill J rejected that argument in clear terms. None of the various iterations of the order sought by the bank could be said to be “ancillary” to the 2015 order. A further order would not have breathed new life into the 2015 order or enforced the terms of that order (for which the time for compliance had long since passed). In substance, the court was being asked to make a new Part 71 order which – as was common ground – the court had no power to grant.

Furthermore, if the order that the bank sought really had been ancillary to the 2015 order, in the sense of enforcing compliance with the 2015 order, such an order would have run contrary to the double jeopardy rule. The court had previously found that Mr Vik had not fully complied with the 2015 order and had already imposed a suspended sentence for such breaches of that order ([2022] EWHC 2057 (Comm)). The rule against double jeopardy would mean that Mr Vik could not be punished a second time for any further failure to comply with the terms of the 2015 order.

The proper means for enforcement of the 2015 order in the event of non-compliance was not an application for a further order in similar terms but an application for committal. The bank had already obtained a committal order which had imposed a suspended sentence on Mr Vik. The fact that the bank had not sought to activate the suspended sentence until it was too late to do so – an issue that was the subject of an earlier application by the bank, which was rejected by Henshaw J in October 2023 [2023] EWHC 2563 (Comm) – did not alter the fact that Mr Vik had served his punishment for any breach of the 2015 order.

Importantly, Cockerill J highlighted that there are limits to the court’s inherent powers and that it is important that the court should not assume an excessive jurisdiction, even where it might seem tempting to do so.

The judgment is therefore a valuable reminder that, while the court’s inherent jurisdiction may be wide, it is not boundless. Applicants cannot circumvent the requirements of the CPR, or principles such as the rule against double jeopardy, by relying on the court’s inherent powers as enabling it to grant whatever relief the applicant contends may be necessary to do justice.

Tony Beswetherick KC and Rupert Hamilton were instructed by James Clarke at Brecher LLP. 

See also: The interpretation, modification and variation of committal orders (January 2024)