Den Norske Bank A.S.A. v Antonatos

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
[COURT OF APPEAL] DEN NORSKE BANK A.S.A. v. ANTONATOS and Another 1998 March 17, 18; April 7 Millett, Waller and Chadwick L.JJ.

Practice - Discovery - Privilege against self-incrimination - Bank alleging fraud and corruption against employee - Bank obtaining Mareva and Anton Piller orders - Subsequent order for cross-examination on affidavit as to assets - Claim to privilege against self-incrimination during examination - Whether cross-examination permissible - Whether defendant entitled to claim privilege against self-incrimination

The first defendant, the manager of the plaintiff bank's Greek shipping finance business, was alleged to have taken bribes and been involved in multi-million dollar self-lending frauds against the bank. The bank obtained Mareva and Anton Piller orders prohibiting the first defendant from disposing of assets, moneys in identified bank accounts and other assets and property he was alleged to own. The Mareva order required him to inform the bank's solicitors of the value, location and details of “specific assets” and stated that any information in respect of which he claimed the privilege against self-incrimination was to be provided to a supervising solicitor who would hold it to the court's order. The first defendant provided details in respect of certain assets but claimed privilege in respect of the “specific assets.” In the meantime the bank obtained further evidence allegedly against the first defendant and applied for and was granted an order for cross-examination relating to the disclosure of assets and documents. After hearing argument the judge concluded that the case was sufficiently urgent to merit the cross-examination to proceed immediately and that any questions relating to privilege could be dealt with as they were raised. During the examination the first defendant asserted the privilege on several occasions and also sought leave to appeal. The judge ruled against him, holding in general that the examination should continue because nothing that he was being asked would increase his existing risk of prosecution and because his attitude was a deliberate and determined attempt to frustrate the bank from obtaining effective relief.

On the application of the first defendant for leave to appeal on the grounds that he was entitled to refuse to answer any questions put to him which might tend to incriminate him, and that the cross-examination should be discontinued:—

Held, granting the application and allowing the appeal in part, that a witness was entitled to claim the privilege against self-incrimination not merely on the ground that an answer might increase the risk of prosecution, but in respect of any piece of information or evidence on which a prosecuting authority might wish to rely in establishing guilt or in determining whether to prosecute, and that the court should uphold the privilege even if he was acting from mixed motives or mala fide as a result of not fully appreciating the risk; that to order incriminating information to be placed in the hands of a supervising solicitor did not provide adequate protection; that, although the urgency of the situation had entitled the judge to allow some cross-examination, the first defendant's claim to the privilege should have been upheld in respect of any question that sought to establish the receipt of money coming from a client of the bank or the amount thereof; and that, accordingly, the first defendant was not required to provide answers to his own solicitors or the supervising solicitor and he or his solicitors were free to make use of any answers or information already given to his solicitors and remaining subject to the order of the court (post, pp. 287G, 289A–B, 290A–B, 292G, 293B, 296E–G).

Sociedade Nacional de Combustiveis de Angola U.E.E. v. Lundqvist [1991] 2 Q.B. 310, C.A. considered.

Decision of Steel J. reversed in part.

The following cases are referred to in the judgment of Waller L.J.:

A.T. & T. Istel Ltd. v. Tully [1993] A.C. 45; [1992] 3 W.L.R. 344; [1992] 3 All E.R. 523, H.L.(E.)

Accident Insurance Mutual Holdings Ltd. v. McFadden (1993) 31 N.S.W.L.R. 412

Bayer A.G. v. Winter (No. 2) [1986] 1 W.L.R. 540; [1986] 2 All E.R. 43

Brebner v. Perry [1961] S.A.S.R. 177

Cobra Golf Inc. v. Rata [1998] Ch. 109; [1997] 2 W.L.R. 629; [1997] 2 All E.R. 150

House of Spring Gardens Ltd. v. Waite [1985] F.S.R. 173, C.A.

IBM United Kingdom Ltd. v. Prima Data International Ltd. [1994] 1 W.L.R. 719; [1994] 4 All E.R. 748

Practice Direction (Mareva Injunctions and Anton Piller Orders: Forms) [1996] 1 W.L.R. 1552; [1997] 1 All E.R. 288

Rank Film Distributors Ltd. v. Video Information Centre [1982] A.C. 380; [1980] 3 W.L.R. 487; [1980] 2 All E.R. 273, C.A.; [1982] A.C. 380; [1981] 2 W.L.R. 668; [1981] 2 All E.R. 76, H.L.(E.)

Reg. v. Boyes (1861) 1 B. & S. 311

Saunders v. United Kingdom (1996) 23 E.H.R.R. 313

Sociedade Nacional de Combustiveis de Angola U.E.E. v. Lundqvist [1991] 2 Q.B. 310; [1991] 2 W.L.R. 280; [1990] 3 All E.R. 283, C.A.

Tate Access Floors Inc. v. Boswell [1991] Ch. 512; [1991] 2 W.L.R. 304; [1990] 3 All E.R. 303

Yukong Line Ltd. of Korea v. Rendsburg Investments Corporation of Liberia [1996] 2 Lloyd's Rep. 604

The following additional cases were cited in argument:

Allhusen v. Labouchere (1878) 3 Q.B.D. 654, C.A.

Arrows Ltd. (No. 4), In re [1995] 2 A.C. 75; [1994] 3 W.L.R. 656; [1994] 3 All E.R. 814, H.L.(E.)

Fisher v. Owen (1878) 8 Ch.D. 645, C.A.

Khan (Mohammed Krim) v. Khan (Iqbal Ali) [1982] 1 W.L.R. 513; [1982] 2 All E.R. 60, C.A.

Reg. v. Garbett (Edmund) (1847) 1 Den.C.C. 236

Reynolds, Ex parte; In re Reynolds (1882) 20 Ch.D. 294, C.A.

United Norwest Co-operatives Ltd. v. Johnstone, The Times, 24 February 1994; Court of Appeal (Civil Division) Transcript No. 112 of 1994, C.A.

Westinghouse Electric Corporation Uranium Contract Litigation M.D.L. Docket No. 235 (No. 2), In re [1978] A.C. 547; [1977] 3 W.L.R. 492; [1977] 3 All E.R. 717, C.A.; [1978] A.C. 547; [1978] 2 W.L.R. 81; [1978] 1 All E.R. 434, H.L.(E.)

The following additional cases, although not cited, were referred to in the skeleton arguments:

Bekhor (A. J.) & Co. Ltd. v. Bilton [1981] Q.B. 923; [1981] 2 W.L.R. 601; [1981] 2 All E.R. 565, C.A.

Hadmor Productions Ltd. v. Hamilton [1983] 1 A.C. 191; [1982] 2 W.L.R. 322; [1982] 1 All E.R. 1042, H.L.(E.)

Lloyds Bank Plc. v. Smith (unreported), 6 February 1992, McCullough J.

Ministry of Defence v. Foxley (unreported), 10 March 1995; Court of Appeal (Civil Division) Transcript No. 266 of 1995, C.A.

Application for leave to appeal from Steel J.

By notice dated 16 March 1998 the first defendant, Dimitri Antonatos, applied for leave to appeal against orders made by Steel J. on 10 March 1998 that he should attend for cross-examination on the application of the plaintiff, Den Norske Bank A.S.A., incorporated under Norwegian law, upon his first affidavit dated 27 February concerning disclosure of assets, and orders of 12 and 13 March that the cross-examination should not be discontinued and that the first defendant should answer various specific questions put to him by the plaintiff's counsel on matters in respect of which he claimed a privilege against self-incrimination. By his draft notice of appeal the first defendant sought orders that (1) he was entitled to decline to answer any questions put which might tend to incriminate him in relation to the matters alleged against him by the plaintiff and any question in respect of any moneys, loans or other assets allegedly received by him, his wife, Magda Antonatos, the second defendant, members of his family or any agent of his directly or indirectly from any customers of the plaintiff and any assets or moneys which had been acquired by or represented such moneys or assets, and (2) the examination should be discontinued and the transcripts of evidence and any other record be delivered up for destruction of those parts the Court of Appeal considered appropriate.

The grounds of the proposed appeal were that (1)(a) the judge erred in ordering cross-examination since a privilege against self-incrimination was claimed by the first defendant and cross-examination by its very nature carried with it the risk of infringing that privilege; (b) if it was correct to allow some cross-examination the judge should have limited its scope in advance to prevent questioning in relation to “specific assets” as defined in the interlocutory order of Sir Richard Scott V.-C. of 18 February; (c) on 12 March before allowing the cross-examination to begin the judge should have ruled on whether the privilege against self-incrimination was available to the first defendant and its extent, thus preventing the plaintiff infringing that privilege by its questioning; (2) the judge should have ruled that the first defendant was privileged in relation to any answer which went to the matter of (i) any payments by a customer of the plaintiff to an entity with which he was in any way connected and (ii) any connection between the first defendant and the recipient of any payment by a customer of the plaintiff whether by way of some ownership interest on the part of the first defendant in some such recipient or any payment to the first defendant from such a recipient; (3) when determining the existence and extent of the privilege, the judge (a) erred in deciding that there was sufficient material for the first defendant to be prosecuted and accordingly the answers that he might give would not materially increase the risk of prosecution, whereas she should have held that any answer which, whether by admission or leading to a train of inquiry, materially increased the admissible evidence against the first defendant increased the risk of prosecution and conviction and (b) failed to apply dicta in Sociedade Nacional de Combustiveis de Angola U.E.E. v. Lundqvist [1991] 2 Q.B. 310 since the first defendant was not bound to go into details of why he claimed the privilege, in his affidavit...

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