Haiti (Republic of) v Duvalier

JurisdictionEngland & Wales
JudgeLORD JUSTICE STAUGHTON,LORD JUSTICE STOCKER,LORD JUSTICE FOX
Judgment Date22 July 1988
Judgment citation (vLex)[1988] EWCA Civ J0722-5
Docket Number88/0653
CourtCourt of Appeal (Civil Division)
Date22 July 1988
Between:
(1) Republic of Haiti (represented by Le Directeur General Des Impots)
(2) La Minoterie D'haiti
(3) L'office De L'assurance Des Vehicules Contre Tiers
(4) La Loterie De L'etat Haitien
(5) La Commission De Controle Des Jeux De Hasard
(6) La Banque Nationale De Credit
Plaintiffs (Respondents)
and
(1) Jean-Claude Duvalier
(2) Michele Bennett Duvalier
(3) Simone Duvalier
(4) Nicole Duvalier
(5) Marie-Denise Duvalier
(6) Simone Ovide Veuve Francois Duvalier
(7) Auguste Douyon
(8) Frantz Merceron
(9) Jean Sambour
(10) Max Dominique
(11) Barclays Bank Plc
Defendants (Appellants)

[1988] EWCA Civ J0722-5

Before:

Lord Justice Fox

Lord Justice Stocker

and

Lord Justice Staughton

88/0653

1988 Folio No. 1789

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

COMMERCIAL COURT

(MR. JUSTICE LEGGATT)

Royal Courts of Justice,

MR. S. GEE (instructed by Messrs. Watson Farley & Williams, London EC3) appeared on behalf of the Defendants (Appellants).

MR. N. STRAUSS, Q.C. and MR. M. JONES (instructed by Messrs. Slaughter & May, London, EC2) appeared on behalf of the Plaintiffs (Respondents).

LORD JUSTICE STAUGHTON
1

Jean-Claude Duvalier, the first defendant in these proceedings, was the President of the Republic of Haiti from 1971 until 7th February 1986. The second defendant is his wife, Michele Bennett Duvalier; and the sixth defendant his mother. She is the widow of Francois Duvalier, who was the President from 1957 until his death in 1971. Those three members of the family are the appellants in this court. All are now resident in France.

2

The Republic of Haiti started proceedings in the Tribunal de Grande Instance at Grasse in July 1986; five of its agencies were later added as co-plaintiffs. Those proceedings were against various members of the Duvalier family, including Jean-Claude Duvalier, his wife and mother, and their associates. It is said that they were responsible for embezzling sums totalling $120 million from the Republic during the presidency of Jean-Claude Duvalier, that is between 1971 and 1986. Indeed it is suggested that this is only the tip of the iceberg, and that very much larger sums were involved.

3

The defendants in the French action altogether deny liability. They observe that it has been a tradition in Haiti for over 180 years for a new government to take legal proceedings against those who were in charge under the previous regime. (One is reminded of the Roman historian who noticed that it was the practice of the later emperors to bring to justice the murderers of the previous emperor but one.) But this appeal is scarcely concerned with the merits of the substantive claims made in France. It is acknowledged that the Republic's evidence demonstrates a prima facie case, or even a good arguable case. Mr. Strauss, for the Republic, goes further; he submits that there is a very strong case, to which the defendants have offered no substantive or detailed answer, either in the French proceedings or in the courts of this country.

4

Unless it is essential to do so, I do not feel that I should make any comment at this stage upon the strength of the Republic's case. It is enough that on the affidavit evidence there is a case to answer, or a good arguable case, such as would justify the use of interim protective measures in an English domestic case, and would also justify service out of the jurisdiction if that is permitted by the Rules of the Supreme Court.

5

What is more striking, and less usual, is the evidence that the members of the Duvalier family have been attempting to conceal their assets, or place them beyond the reach of courts of law. It is unnecessary to set out this evidence in detail, since the conclusion from it is admitted. In the affidavit of Professor Vaisse, a French lawyer acting for the Duvalier family, there is this passage:

"9. The plaintiffs have drawn attention to the fact that assets in the control of the defendants have, when threatened with legal attachment proceedings, been removed from the jurisdictions concerned. It is my understanding that this has occurred. This does not reflect any doubts that the defendants have about the merits of their position. They are simply aware that there is a worldwide campaign being conducted against them by the Haitian Government supported by the United States Government to persecute them by seizing their assets wherever they can be found. This campaign is assisted by the International Press which provokes prejudice against them wherever they go and they have merely sought to frustrate this campaign which I submit is a normal reaction in the circumstances….."

6

If those be the true facts, one would suppose that the Duvalier family would welcome an early trial of the case against them by a just court in a country which has, by international law, jurisdiction to try it.

7

It is, however, necessary to enlarge upon that admission by referring to some features of the evidence which are striking. First, the Republic's evidence exhibits extracts from a book with the title "Les Banques Suisses et L'Argent" written by a French lawyer, Maitre J-P Carteron. This is said to treat the concealment of funds within the Swiss banking system. It points to the advantage of using a fiduciary as the legal owner of the assets to be concealed, rather than the beneficial owner himself, and the added advantage of choosing a lawyer as the fiduciary.

"Le secret de sa profession"—(translated "his professional secrecy")—"protegera totalement 1'identite du client."

8

There is evidence that Maitre Carteron, between 1984 and 6th February 1986 (which was when the Duvalier family left Haiti), received approximately $500,000 in Switzerland from Haitian government funds. There is also evidence of thirteen telexes or telephone calls from the Ministry of Finance or the National Palace in Haiti to Maitre Carteron's number in Geneva, the last telephone call being on 6th February 1986.

9

Furthermore there is evidence that the Duvalier family made use of the idea, whether or not derived from Maitre Carteron's book, of employing a professionial lawyer as intermediary. Some documents have been disclosed pursuant to an order of Knox J (which I shall refer to later) by Turner & Company, an English firm of solicitors in which Paul Turner and John Stephen Matlin are partners. Amongst other things, Turner & Company were asked to identify bank accounts

"from which or to which any moneys which belong to any of the 1st to 10th defendants (whether directly or indirectly) or which are reasonably apparent or believed by Turner & Co. to be moneys in which one or more of the 1st to 10th defendants is or are beneficially interested or otherwise held by a nominee or trustee, have been transferred".

10

The answer listed seventeen accounts, at eleven different banks, in seven different countries. Eleven of the accounts were in the name of Turner & Company or the partners of the firm.

11

A second striking feature emerges from documents which the Republic has obtained by proceedings in Jersey. These tend to show that Mr. Matlin arranged for the deposit with the Hongkong and Shanghai Banking Corporation (CI) Ltd., via their correspondent in Toronto and for the credit of "Messrs. Turner & Co. No. 2 Clients' Account" of Canadian Treasury Bills worth in excess of Can. $40 million. Turner & Company, in answer to the order for disclosure of the 1st to 10th defendants' assets, wrote:

"Canadian Government Treasury Bills have been held by us on occasion. They have all been encashed."

12

I should also refer to the evidence which tends to show, as Professor Vaisse admits, that assets threatened with attachment have been removed from the jurisdictions concerned. I can summarize that evidence by saying that it leads to one of three possible conclusions:

(1) The Duvalier family or their advisers have somehow obtained advance notice of the Republic's efforts at attachment; or

(2) assets are moved so regularly and so frequently that it is no coincidence if some have been moved just before attachment took effect; or

(3) it is coincidence.

13

It should be emphasized as to all this evidence that no wrongdoing on the part of Turner & Company or its partners is alleged on behalf of the Republic. Furthermore Mr. Matlin has said in an affidavit that he has never heard of Maitre Carteron, or read his book; nor was he even aware of it until it was referred to in the Republic's evidence. He says that he is not aware of any elaborate and co-ordinated scheme to conceal funds.

14

15

On 3rd June 1988 the Republic of Haiti and the five other plaintiffs in the French action made an ex parte application to Knox J., sitting as a vacation judge of the Commercial Court. In the writ issued that day they were named as plaintiffs, and the 1st to 10th defendants were members of the Duvalier family or their associates. None of those defendants had an address within the jurisdiction. The eleventh defendants were Barclays Bank plc of Lombard Street, London, EC3.

16

The order made by Knox J can be summarized as follows, so far as is material:

(1) the plaintiffs undertook to notify the defendants of the terms of the order by 4.00 p.m. on 6th June, and to notify Mr. Matlin forthwith;

(2) the 1st to 10th defendants were restrained from dealing with assets which represented the proceeds of the payments which are complained of in the French action;

(3) the 1st to 10th defendants were restrained from removing from the jurisdiction or dealing with their assets within the jurisdiction save in so far as they exceed $120 million in value;

(4) the 1st to 10th defendants were ordered, acting by Messrs. Turner & Matlin, to...

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