Mbasogo and another v Logo Ltd and Others
| Jurisdiction | England & Wales |
| Judgment Date | 21 September 2005 |
| Neutral Citation | [2005] EWHC 2034 (QB) |
| Docket Number | Case No: HQ04X02003 |
| Court | Queen's Bench Division |
| Date | 21 September 2005 |
[2005] EWHC 2034 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Davis
Case No: HQ04X02003
Sir Sydney Kentridge QC; Mr Harry Matovu and Mr John McLinden (instructed by Penningtons Solicitors LLP) for the Claimants
Mr Philip Shepherd QC and Mr Bajul Shah (instructed by Kerman & Co LLP) for the First, Second and Fourth Defendants
Mr Michael McLaren QC and Mr Paul Sinclair ( instructed by Collyer-Bristow) for the Fifth Defendant
Hearing dates: 27 th July, 28 th July and 29 th July
Judgment Approved by the court
for handing down
Davis J:
Introduction
These proceedings were commenced by Claim Form issued on the 30 th June 2004. Since then the Claim Form, and accompanying Particulars of Claim, have been subject at various stages to very significant adjustment and redrafting. The latest form is the 5 th version produced, and the Claimants seek leave by application notice dated 12 th July 2005 to amend by reference to that draft (which can be called 'APOC5').
The First Claimant is Mr Teodoro Obiang Nguema Mbasogo, suing as the President of the State of Equatorial Guinea. The Second Claimant is the Republic of Equatorial Guinea represented by the Attorney-General. The first two Defendants are companies incorporated in the British Virgin Islands and the Bahamas respectively, each having its place of business at St Peter Port, Guernsey. The Third Defendant and Fifth Defendant are resident in England and Wales. The Fourth Defendant is said to be resident in England and South Africa (in fact he currently is in prison in Zimbabwe) and is said to be connected with the first two Defendants. The Sixth Defendant is said to be resident in Spain.
The claims, in short, relate to what is said to have been an attempted coup d'etat directed at the Claimants, which was forestalled by actions taken on and around the 7th March 2004. The principal allegation (although not the only allegation) is that the Defendants were party to a conspiracy in that regard, directed at each of the Claimants, and that loss and damage has been suffered by each in consequence. It is further said that the First Claimant was assaulted by the Defendants. Damages (including exemplary damages) for "conspiracy and/or assault", are claimed. Injunctive relief is also claimed.
On the 4 th May 2005 the Fifth Defendant issued an application notice seeking to strike out the Claim Form and Particulars of Claim in their then extant version. On the 25 th May 2005 the First, Second and Fourth Defendants (who may, by reference to their solicitors, collectively be styled "the Kerman Defendants") issued an application notice seeking to strike out under CPR 3.4 (2) such Claim Form and Particulars of Claim: summary judgment, pursuant to CPR 24, being sought in the alternative. Although APOC5 was produced after those dates, it was common ground before me that the strike-out applications should be determined by reference to APOC5. No applications have been issued by the Third Defendant or the Sixth Defendant: although the latter's solicitors have written a letter in effect reserving his position for the future, albeit not opposing the Claimants' present application to amend.
It is to be noted that no jurisdictional dispute, for present purposes, is raised as to the High Court in London being an appropriate and proper forum for these proceedings on the basis pleaded. The essential dispute before me is whether APOC5 discloses any reasonable grounds for bringing the claim. It is, in this regard, accepted on behalf of the Kerman Defendants that the alternative formulation of challenge, by reference to CPR 24, is very much subordinate to their principal attack. In addition the Fifth Defendant says that APOC5 (in common with its predecessors) is unreasonably vague and underparticularised, such that the Fifth Defendants does not, it is asserted, know the case against him: and thus the claim should in any event be struck out and leave to amend by introducing APOC5 should be refused.
Sir Sydney Kentridge QC, Mr Harry Matovu and Mr John McLinden appeared for the Claimants. Mr Philip Shepherd QC and Mr Bajul Shah appeared for the Kerman Defendants. Mr Michael McLaren QC and Mr Paul Sinclair appeared for the Fifth Defendant.
The hearing took place before me over 3 days starting on Wednesday the 27 th July 2005. On the evening before the hearing started, there were lodged with me 6 folders which included many documents, witness statements and exhibits. Two of those folders alone, rather unpromisingly entitled "Core Bundle", amounted to over 600 pages. Very extensive and detailed skeleton arguments were lodged and the various Defendants also lodged folders containing nearly 50 authorities, to be followed next morning by the Claimants' lodging folders containing over 30 authorities. (The initial estimate for length of hearing, I might add, had somehow been put at one day). In such circumstances—and not solely because it was the last week of the summer term—I considered whether, by reference to what, for example, was said by Lord Templeman and Lord Mackay of Clashfern in Williams and Humbert Ltd v W and H Trade Marks (Jersey) Limited [1986] 1 AC 368 pp 435–436, and p. 441, I should decline to proceed further with the matter as a strike out application. In the event, after an initial perusal of the written arguments I decided to proceed with the hearing substantively (and it was not in fact suggested to me at the hearing that I should not: although I will have to record hereafter some of Sir Sydney's points as to the overall approach to be adopted on applications of this kind). I did so not least because of my view that were I to accede to the applications to strike out, in whole or in part, then that either would avoid the need for, or would greatly reduce the length of, a trial involving what, on any view, would be complex and lengthy issues and evidence. In addition, the application for leave to amend itself involved consideration of the issues raised in the strike-out applications. Putting it another way, and adopting more modish language, I considered it proportionate, and more likely to further the overriding objective, to proceed to a full hearing.
The factual background and pleaded case
Equatorial Guinea is a country of Africa. It is to be categorised as a friendly foreign state with regard to the United Kingdom. It has diplomatic recognition. It also is a member of the United Nations.
At the outset of his written and oral arguments, however, Mr Shepherd QC launched a sustained attack on the First Claimant, President Obiang, who has been President of Equatorial Guinea for many years. He described President Obiang as a "dictator". He said that his regime was one of the most brutal and oppressive in the world; and that the vast majority of the citizens of Equatorial Guinea were held in a state of subjection and abject poverty whilst President Obiang and his acolytes waxed rich. He alleged that the President in effect personally controlled the assets of the state (in particular, its oil resources) and the armed forces and ostensible organs of government for his own personal purposes and benefit. It is asserted that any opposition has been ruthlessly put down; and that there is also no possibility of a fair trial. He says that the thought that the English courts could or might grant damages of the kind claimed, or grant the discretionary remedy of injunctive relief, in favour of such a person is "absurd" and "beggars belief". Mr Shepherd points, by way of example, to reports of Amnesty International and the International Bar Association, as well as other materials put in evidence before me, to support his allegations.
I do not think that the outcome of applications of this kind can properly be determined by reference to such matters. These are allegations. President Obiang is entitled to contest them and to have them proved, to the extent relevant, at trial. I need not say more on this, however, because in the event Mr Shepherd accepted that; and he accepted (as is elementary) that contested allegations of fact of this kind cannot be resolved on interlocutory applications of this nature.
In such circumstances, I think it appropriate essentially to take the facts as they are alleged to be in APOC5. The opening paragraphs describe the Claimants and the Defendants. The Fourth Defendant, Mr Mann, is alleged to be the beneficial owner of the First and Second Defendants and to have had a career in military security work; and in that regard to have had a connection with the Third Defendant, who is described as a businessman. The Fifth Defendant, Mr Calil, is described as a businessman having extensive financial and commercial interests in Africa and knowing the Sixth Defendant. The sixth Defendant, Mr Moto, is said to reside in Spain. He is described as a citizen of Equatorial Guinea and at all relevant times a political opponent of President Obiang. It is alleged that he harbours ambitions to be President and has been party to previous coup attempts against the Claimants. It is said that he knew the Fourth and Fifth Defendants.
In paragraph 8 of APOC5 (under the heading "The Conspiracy") the following is pleaded:
"8. Between the months of March 2003 and March 2004 in England and other places, the Defendants agreed with each other and with other persons to combine with the common intention of causing injury and damage by acts which are crimes and also civil wrongs in England and...
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