Al-Koronky v Time Life Entertainment Group Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE KEENE,LORD JUSTICE WILSON,Lord Justice Sedley |
| Judgment Date | 28 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1123,[2006] EWCA Civ 229 |
| Docket Number | Case Nos: A2/2005/1956, A2/2005/1956(A),A2/2005/1956(C) HQ04X02761,A2/2005/1956(A) , (C) and (Y) |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2006 |
[2006] EWCA Civ 1123
Lord Justice Sedley
Lord Justice Keene and
Lord Justice Longmore
Case Nos: A2/2005/1956, A2/2005/1956(A),A2/2005/1956(C)
A2/2005/1956(D), A2/2005/1956 (E)
HQ04X02761
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE EADY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr G Shaw QC and Mr H Starte (instructed by Messrs Carter-Ruck) for the Appellants
Ms A Page QC and Mr M Nicklin (instructed by Messrs Reynolds Porter Chamberlain) for the Respondents
All three members of the court have contributed to the judgment which follows.
The background
The claimants are husband and wife. The husband was at the times with which we are concerned a career diplomat in the service of the Sudanese government. The wife is a qualified civil engineer. From 1994 to 2002 they were stationed in London, where the first claimant, Mr Al-Koronky, served as press attaché, between 1998 and 2000 acted up as chargé d'affaires and ambassador. During this time the second claimant looked after their five children and did not work on her own account. Since their return to Sudan, Mr Al-Koronky has left the government service and has sought to establish himself in journalism.
From June 2000 the claimants' London household in Deerhurst Road, Willesden Green, included a domestic servant, Zainab Nazer, also known as Mende (which is the name we shall use for her in this judgment) . In September 2000 Mende left (the defendants say escaped from) the Al-Koronky household and claimed asylum on the ground that she had been brought and kept there against her will as a slave. Towards the end of 2002 she was granted asylum.
Very shortly after Mende's departure from the Al-Koronky household the Sunday Telegraph published an article reporting it as the escape of a slave. In the libel proceedings which Mr Al-Koronky promptly issued, the newspaper pleaded justification but by June 2002 had settled the claim, apologising publicly, withdrawing the allegations and paying the claimant £100,000 damages. This, however, did not stop the preparation, which was already under way, or the publication in Germany in October 2002 of the book, Slave, which is the subject-matter of the present claim. Written by the second defendant, Damien Lewis, it was published during 2003 in the United States and then, in January 2004, by the first defendants in the United Kingdom.
The book alleges that the claimants kept Mende as a slave in their London home. Slavery is a crime in Sudan as it is here, and carries similar public opprobrium, but the defence is that the allegation is true. Correspondingly, say the claimants, the book either says or implies that the statement made in open court in the Sunday Telegraph case, asserting that Mende was the family's au pair and that her tale of abduction and enslavement as a child in the Sudan was a fabrication, was to Mr Al-Koronky's knowledge false. To this too the defendants plead justification.
The foundation of the defence of justification is Mende's account of having been abducted from her village by raiders in 1994 when she was about 12 years old and kept in a state of servitude until her escape in 2000. The claimants advance documentary evidence, including attested photographs and letters, which, if genuine, demonstrate both that Mende is considerably older than she claims and that her story of being enslaved cannot be true. The defence case is that these are forgeries and that the statements supporting them are untruthful.
The application for security for costs
Because the claimants are ordinarily resident out of the jurisdiction and not in one of the groups of exempted states which have measures for reciprocal enforcement with the United Kingdom, it is open to the defendants to apply for security for their costs pursuant to CPR 25.13. This they did before Eady J in the course of four days during July 2005. They sought security for their costs up to disclosure of documents in the estimated sum of £433,028.
In a reserved judgment delivered on 29 July, [2005] EWHC 1688 (QB), Eady J concluded that it was not practical to adjourn the application in the hope that scientific tests might establish Mende's true age or the authenticity or inauthenticity of the letters attributed to her or of the photograph purporting to show her. He held
(a) that the claimants had not shown that there was a strong likelihood, on the evidence as it then stood, that they would succeed at trial;
(b) that an eventual costs order against the claimants would not in practice be enforceable in Sudan;
(c) that the claimants had not asserted or shown by adequate evidence that they could not afford to lodge a sum of the size sought; and
(d) that in the circumstances it was just and proportionate to require the claimants to put up £375,000 as security for the defendants' costs down to completion of disclosure.
The appeal
Permission was granted by Sedley LJ on sight of the papers to appeal against this decision on two of the three grounds advanced on the claimants' behalf: that there had arguably been an omission to take the claimants' means into account in setting security, and that the finding about the difficulty of enforcing an eventual costs order trespassed on the principle of comity. On renewal, a full court (Pill, Keene and Wilson LJJ) granted permission to appeal on the third ground, namely that there was arguably a strong likelihood of success which precluded the making of any order for security. It adjourned to this court the application to admit new evidence.
Since the admissibility of the new evidence depended in part on its content, we indicated at the outset of the hearing that either side could deploy it in argument, subject always to the issue of its admissibility. Our conclusion on this aspect of the case, for reasons to which we now turn, is that (with an exception which we will explain in relation to evidence about funding from the Sudanese government) the new evidence is not admissible, or alternatively ought not to be admitted, on this appeal.
The new evidence
The new evidence sought to be advanced by the claimants is intended to help refute the findings of Eady J set out in sub-paragraphs (a) and (c) of paragraph 8 of this judgment. In other words it is directed towards showing that the claimants could not find security on the scale ordered and that there is a high probability that their claim will succeed at trial. In the former category come a third, fourth and fifth witness statement of the first claimant, dated respectively 31 August 2005, 15 September 2005 and 3 July 2006. These seek to provide more information about his assets, his income and his attempts to find financial support from others. The last of them also deals with the merits of the case and hence the prospect of success at trial, an issue which is also the subject of a great deal of other fresh evidence not before Eady J.
It consists of reports from four expert witnesses and statements from ten witnesses of fact, together with witness statements from the claimant's solicitor explaining how the various reports and witness statements came into existence. The reports of the four experts deal with the topics of handwriting, photograph authenticity and facial mapping. The ten statements from witnesses of fact were all obtained in late May this year in Khartoum and are the subject of an application for permission to admit dated as recently as 20 June 2006.
The legal principles applicable to the receipt by this court of new evidence are not controversial. The relevant CPR rule is not itself one which contains much guidance. CPR 52.11.(2) merely states:
"Unless it orders otherwise, the appeal court will not receive –
(a) …
(b) evidence which was not before the lower court."
This leaves the court with a broad discretion.
Nonetheless, it is a discretion to be exercised in accordance with principle, including the overriding objective of doing justice. There is also a body of authority to the effect that the principles which operated before the Civil Procedure Rules came into effect remain relevant to the exercise of discretion under those Rules: see Banks v. Cox [2000] LTL 17 July 2000; Hertfordshire Investments Ltd v. Bubb [2000] 1 WLR 2318 at 2325H; and Hamilton v. Al Fayed (No 4) [2001] EMLR 15, where Lord Phillips MR stated that the old cases "remain powerful persuasive authority".
These old cases include the well-known decision in Ladd v. Marshall [1954] 1 WLR 1489, which was dealing with the situation where there had been a trial at first instance. In such a situation, said this court, three conditions had to be met in order to justify the reception of fresh evidence on appeal. Those were:
"first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible." (page 1491)
Those were regarded as strict conditions. In Electra Private Equity Partners v. KPMG Peat Marwick [1999] EWCA Civ 1247; [2001] 1 BCLC 589, it was said that in interlocutory appeals some relaxation of the strictness of those conditions might be appropriate, according to the nature of the...
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