BOC Ltd v Instrument Technology Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,LORD JUSTICE KAY |
| Judgment Date | 08 June 2001 |
| Neutral Citation | [2001] EWCA Civ 854 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 June 2001 |
| Docket Number | Case No: A2/2000/0504 |
[2001] EWCA Civ 854
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE GRIGSON
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Kay
Case No: A2/2000/0504
Mr Peter Ralls QC (instructed by Cripps Harries Hall, Seymour House, 11–13 Mount Ephraim Road, Tunbridge Wells, Kent, TN1 1EN for the Appellants)
Mr Charles Flint QC (instructed by Peters & Peters, 2 Harewood Place, Hanover Square, London W1R 9HB for the Respondents)
The Appeal
This is an appeal against an order made by Grigson J on 15 February 200After an inter partes hearing he continued until trial freezing and disclosure orders made on a without notice application to Henriques J on 7 February. The defendants appeal with the permission of the judge.
The appeal raises a novel point. The question is: what use can properly be made in civil proceedings of information which has been obtained by a party to the civil proceedings from a prosecuting authority, that information having been acquired by the prosecuting authority as a result of letters of request under the provisions of the Criminal Justice (International Co-operation) Act 1990 (the 1990 Act) ? We are indebted to Mr Ralls QC, who appears for the defendants, and to Mr Flint QC, who appears for the claimants, for their excellent arguments.
The Proceedings.
On 10 December 1999 proceedings for fraudulent misrepresentation were started against the first four defendants. Particulars of Claim were served on that date. They were subsequently amended in May and November 2000.
The first claimant, BOC, manufactures and sells vacuum equipment. After 28 April 1996 the purchasing side of the business was conducted by the second claimant, Edwards High Vacuum International Limited. The first defendant, Instrument Technology Limited (ITL), supplied precision machined couplings and connectors to the claimants. At that time ITL was owned and managed by Mr Frederick Barlow and his son David. They are the second and third defendants. The fourth defendant, Mr Youngman, was the claimants' senior buyer for factored goods.
The action is based on allegations that, in breach of duty, Mr Youngman received from the Barlows and/or ITL between November 1995 and April 1998 bribes and improper payments totalling over £315,000. It is claimed that the Barlows and ITL are guilty of fraud and dishonest assistance ; that the Barlows and/or ITL defrauded the claimants by overcharging for goods supplied and by invoicing for goods which were not supplied ; and that those actions were fraudulently concealed from the claimants.
The Freezing and Disclosure Orders
On 10 December 1999 Langley J made a without notice order freezing the assets of the Barlows up to the limit of £1.4m. He also made orders for the disclosure of assets. Mr Frederick Barlow was later charged with criminal offences. He has been committed for trial at the Crown Court. Information relevant to the criminal proceedings was obtained by the police under the 1990 Act by means of letters of request to the Swiss authorities. The parties have not been able to obtain copies of the letters of request from the prosecuting authority. So this appeal was argued and has to be determined without the parties or the court having had the advantage of seeing the precise terms of the letters of request. The application and this appeal have proceeded on the footing that the letters of request were confined to information and documents relating to the investigation and prosecution of crime.
The information supplied by the prosecuting authority to the claimants' solicitor in the course of its criminal investigation was that there are three Swiss Bank accounts directly or indirectly under the control of the Barlows, which were not disclosed by them in accordance with the order of Langley J. It therefore appears that they have given false evidence as to their overseas assets.
On 7 February 2001 Henriques J made a without notice world-wide freezing order on the application of the claimants, replacing the earlier order against the Barlows. The order identified bank accounts in Zurich. At the inter partes hearing on 14 February 2001 Grigson J, continued the order until trial and rejected the Barlows' contention that the earlier without notice order should be discharged on the ground that it was based on evidence the use of which is expressly prohibited by section 3(7) of the 1990 Act.
One of the purposes of the 1990 Act is to enable the United Kingdom to co-operate with other countries in criminal proceedings and investigations. In particular, Part 1 enabled the Government to ratify the 1959 European Convention on Mutual Assistance. Sections 3 to 6 govern the mutual provision of evidence. Section 3 is concerned with obtaining evidence from overseas for use in the United Kingdom in the investigation of, and in proceedings for, an offence. Application may be made to the court under section 3(1) to issue a letter of request for assistance in obtaining outside the United Kingdom such evidence as is specified in the letter for use in the proceedings or investigation. The application may be made by a prosecuting authority or, if proceedings have been instituted, by the person charged in those proceedings: section 3(2). In the case of a designated prosecuting authority the letter of request may be issued without an application to the court. The letter of request is sent to the Secretary of State for transmission to (a) the court or tribunal specified in the letter and exercising jurisdiction in the place where the evidence is to be obtained or (b) to any authority recognised by the government of the country or territory in question as the appropriate authority for receiving requests for assistance of the kind to which the section relates: see subsection (4).
The critical provision is subsection (7) -
"Evidence obtained by virtue of a letter of request shall not without the consent of such an authority as is mentioned in subsection (4) (b) above be used for any purpose other than that specified in the letter;and when any document or other article obtained pursuant to a letter of request is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to such an authority unless that authority indicates that the document or article need not be returned."
The consent of the authority mentioned in subsection (4)(b) has not been sought or obtained. Three points should be noted.
First, the provisions in this Part of the 1990 Act are confined to mutual assistance in criminal proceedings and in the...
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