Equatorial Guinea (President of the State of) v Royal Bank of Scotland International
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill and Lord Hoffmann |
| Judgment Date | 27 February 2006 |
| Neutral Citation | [2006] UKPC 7 |
| Court | Privy Council |
| Docket Number | Appeal No 59 of 2005 |
| Date | 27 February 2006 |
[2006] UKPC 7
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hoffmann
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Bingham of Cornhill and Lord Hoffmann]
The main issue in this appeal is whether the Court of Appeal of Guernsey (Sir de Vic Graham Carey, Bailiff, Southwell QC, JA, and Vaughan QC, JA) were correct to set aside and discharge an order for Norwich Pharmacal relief finally made by Lieutenant Bailiff Day against the Royal Bank of Scotland International ("the Bank") in the Royal Court of Guernsey on 9 December 2004. The Bank has throughout played a passive part in these proceedings. The effective dispute is between the appellants and the interveners.
The first appellant is President of the Republic of Equatorial Guinea and the second appellant is attorney general of that state, a friendly foreign state with which the United Kingdom has normal diplomatic relations. The second appellant sues on behalf of the Republic.
Logo Limited, the first intervener, is a company registered in the British Virgin Islands or in Nevis. The second intervener is registered in the Bahamas. Both have a place of business in Guernsey where their business is managed by a management company ("Hansard"). Both have an account with the Bank. Both are said to be beneficially owned, wholly or in part, by Mr Simon Mann.
On 7 March 2004, the authorities in Zimbabwe arrested various persons, including Mr Mann, at Harare Airport. On the following day a Mr Nicolaas du Toit and other persons were arrested in Equatorial Guinea. The appellants allege that the individuals arrested were involved in an attempt to overthrow the Government of Equatorial Guinea by means of a privately hired force of mercenaries armed with weapons (including machine guns, rocket grenade launchers, mortars, mortar bombs and hand grenades acquired in Zimbabwe) to seize control of the state and its assets, in particular its substantial oil and gas reserves, to kill, severely injure or abduct the first appellant, and to install Mr Severo Moto, an Equato-Guinean living in exile in Spain, as President. They allege that this was pursuant to a conspiracy plotted and financed in England and elsewhere.
The appellants applied for Norwich Pharmacal orders against the Bank in the Isle of Man and Jersey. In each of those jurisdictions orders were made, but proved fruitless. Accordingly, on 30 April 2004, the appellants applied without notice to the Royal Court of Guernsey for Norwich Pharmacal relief against the Bank, supported by an affidavit sworn on the same day by Mr Page (solicitor for the appellants, then a partner based in Paris in the London solicitors' firm of Penningtons). The application sought an order requiring the Bank to disclose, amongst other things:
information and documents concerning the beneficial ownership of both the interveners (the name of one being then incorrectly stated); and
documents identifying incoming and outgoing transactions on bank accounts in the names of the interveners, Mr Mann and Mr Du Toit.
The application was prompted by investigations which were being carried out by the appellants into the funding of the coup. The appellants believed that the interveners had been involved in that capacity, on the grounds given in Mr Page's affidavit. The interveners deny any involvement in the coup, whether by way of funding or otherwise.
On 30 April 2004, the application was granted and the Lieutenant Bailiff made an Order in the terms briefly summarised above. Paragraph 2 of the Order gave the appellants leave to use the information supplied to them to pursue others in Guernsey, Equatorial Guinea, Spain, Jersey, and England and Wales, in any civil actions but not in criminal proceedings. In Schedule II to the Order, the appellants gave various undertakings to the Royal Court, including an undertaking at paragraph 6 to use the information only for the purposes of civil legal action in the jurisdictions mentioned and specifically not to use it in any criminal proceedings.
The order was served on the same day (30 April 2004) on Hansard who accepted service on behalf of the second intervener but not on behalf of the first, because of the mis-description. But both interveners through Hansard knew of the order and neither moved then to set it aside. On 7 May 2004 the Bank disclosed a number of documents to the appellants. On 13 May 2004, the wording of the order was amended, and the appellants undertook to commence a civil action in one of the stated jurisdictions no later than 30 June 2004.
On 14 May 2004, the second intervener applied to discharge the order of 30 April 2004 and to prohibit the Bank from disclosing any further information to the appellants pending the hearing of that application. The application was adjourned for a substantive hearing, pending which the Royal Court ordered that no further disclosure be made to the appellants. On 7, 13 and 21 September 2004 the Royal Court heard the second intervener's application for a discharge or stay of the order of 30 April 2004. In the course of the hearing, the advocate for the second intervener confirmed that he was also instructed on behalf of the first intervener and that if the appellants wished to pursue an application to include the first intervener in the terms of the order, he was on the record as acting for that company. In due course the first intervener was joined and the application proceeded on that basis.
The interveners' primary submission of legal principle before the Lieutenant Bailiff was that the court had no jurisdiction to grant Norwich Pharmacal relief where no substantive proceedings were contemplated in Guernsey. He rejected this argument in a carefully considered judgment of 3 November 2004. The interveners' second submission was directed to the exercise of the court's discretion to grant relief. The Lieutenant Bailiff acknowledged the interveners' denial of any attempted coup, but also recognised that the court could not resolve those factual issues. He recorded the interveners' acceptance, which he endorsed, that the wrongdoing alleged in the case appeared sufficient to support a Norwich Pharmacal application. He had earlier summarised the principles governing the grant of such relief in terms which, subject to one point considered below, are accepted as an accurate distillation of the law. In his judgment the Lieutenant Bailiff weighed the considerations for and against the grant of relief. By this time the appellants had issued proceedings in the High Court of England and Wales, and the Lieutenant Bailiff was somewhat bemused by the claims made, but regarded their validity as a matter for the High Court to decide. He expressed some sympathy for the view that the civil courts were not the proper forum for the resolution of matters which were properly the province of international diplomacy and co-operation, but thought it clear in principle that a state could seek assistance from the civil courts in another jurisdiction in the same way and subject to the same rules as any other litigant. He referred to evidence adduced by the interveners to discredit the Government and judiciary of Equatorial Guinea, relied on to throw doubt on the appellants' assertion that material obtained would be used for the purposes of civil proceedings only, but was unimpressed, not because he rejected the evidence, but because of authority which discouraged readiness to reject the undertakings of a friendly foreign state. He acknowledged that it might be premature to make an order, but was also concerned that the reputation of Guernsey as a financial centre might suffer if it were not willing to assist victims of wrongdoing to identify participants in it, so as to obtain redress. In conclusion, he found that the Bank might (although entirely innocent of wrongdoing itself) have information which would assist the appellants to identify the authors of that wrongdoing; that it was just and convenient in principle to grant a disclosure order in the terms sought; but that the interveners had justified concerns about the possible use to which disclosed material might be put; that there was need to consider possible control mechanisms; and that accordingly the order of 30 April should be stayed, with liberty to apply.
The appellants applied to lift the stay, relying on a further affidavit by Mr Page sworn on 16 November 2004. In it he discussed certain leading authorities and offered undertakings on behalf of the appellants, later formally executed. The interveners submitted an affidavit sworn by Mr Kerman, their solicitor, on 8 December 2004. In this he deposed for the first time that a detailed and apparently circumstantial statement made by Mr Mann to the Zimbabwean authorities on 11 March 2004 had been procured by torture. It was submitted that the appellants' undertakings should not be accepted. This affidavit was introduced at the contested hearing of the appellants' application on 9 December. After argument the Lieutenant Bailiff was persuaded that the appellants should be provided with any further information available locally for purposes of the English proceedings, subject to the terms of an order which was the subject of detailed submissions. Thus the stay was lifted.
The interveners gave notice of appeal against that decision, on two grounds only. The first, repeating their primary submission to the Lieutenant Bailiff, was that the court had no...
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