Propend Finance Pty Ltd and Others (Plaintiffs) v Sing and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LEGGATT |
| Judgment Date | 17 April 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0417-14 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBENI 96/0556/E |
| Date | 17 April 1997 |
[1997] EWCA Civ J0417-14
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE LAWS)
2 appeals
Royal Courts of Justice
Strand
London WC2
Lord Justice Leggatt
Lord Justice Pill
Mr Justice Mance
QBENI 96/0556/E
QBENI 96/0567/E
MR N PLEMING QC with MR J LEWIS (Instructed by Messrs Devonshires, London EC2M 5QY) appeared on behalf of the Plaintiffs
MR G POLLOCK QC with MR D MAYHEW (Instructed by Messrs Clifford Chance, London EC1A 4JJ) appeared on behalf of the Defendants
Thursday, 17 April 1997
This is the judgment of the Court to which we have all contributed. Before the Court are appeals by the plaintiffs, and by the second defendant, against the decision of Mr Justice Laws whereby he ordered that proceedings for contempt of court could not proceed against the first defendant on the ground of diplomatic immunity, but that they could proceed against the second defendant despite the assertion of state immunity. The plaintiffs are an Australian company called Propend Finance Pty Ltd and individual Australians. The first defendant is Detective Superintendent Alan Sing ('the Superintendent'), who is a police officer in the Australian Federal Police Force ('the AFP') and who between December 1989 and December 1993 (or shortly thereafter) was an accredited diplomat at the Australian High Commission in London serving as First Secretary (Police Liaison). The second defendant ('the Commissioner') is the head of the AFP, and is brought into these proceedings as such, and not in his personal capacity. The documents which are the subject matter of these proceedings were seized from the offices in London of Theodore Goddard, who are solicitors, and of Stein Richards, who are accountants.
On 27th August 1993 the Attorney General of Australia, acting pursuant to statutory powers in Australia, asked the Government of the United Kingdom for assistance pursuant to agreements of mutual assistance. The agreements are provided in the 'Scheme relating to Mutual Assistance in Criminal Matters within the Commonwealth', which is known as 'the Harare scheme', because it was adopted at the Harare conference held in Zimbabwe in 1986.
The request was to assist him in the United Kingdom by seeking a Court order for search warrants. The documents and information sought related to an investigation into alleged tax evasion in Australia. In response to the request on 30th September 1993 the Secretary of State issued a direction to the Metropolitan Police under section 7(4) of the Criminal Justice (International Co-operation) Act 1990 and Schedule 1 of the Police and Criminal Evidence Act 1984. The direction was widened by the Secretary of State on 25th October 1993 to include additional details supplied to him by the Superintendent. On 26th October 1993 search warrants were issued by Judge Goddard QC pursuant to the Secretary of State's direction. The warrants requested by the Commissioner were applied for by the Metropolitan Police on the direction of the Secretary of State, and the application was presented by D.C. Fryer. The Superintendent attended and at the invitation of the judge gave evidence on oath as to the nature of the offence alleged. It was not suggested in terms by the defendants before Laws J. that the Superintendent gave evidence before Judge Goddard without authority, though he did so without prior preparation or consultation. The premises of Theodore Goddard and of Stein Richards were entered on the 27th October 1993; the warrants were executed; and various documents were seized.
On 29th October 1993 the Superintendent took possession of the documents. The plaintiffs, concerned about the legality of the seizure of their documents from their solicitors and accountants, sought agreement from the Metropolitan Police and the Australian authorities to maintain the status quo in relation to the seized documents until the legality of the seizure could be verified. In default of agreement the plaintiffs sought emergency injunctive relief from Potts J. on 29th October 1993, before bringing a claim for judicial review. The hearing before Potts J. was attended by solicitors and counsel for the plaintiffs, and by counsel (Brian Barker Q.C.) acting for and representing the Superintendent. It has also been suggested that he represented the AFP and the Australian High Commissioner. Undertakings were given by the Superintendent to Potts J. on 29th October 1993 that until 4pm on 5th November 1993 documents seized on 27th October 1993 or copies thereof would not be removed from the jurisdiction of the court or from the Australian High Commission in London. In particular, he agreed that copies of the documents would not be faxed, and that there would be compliance with the spirit and tenor of the undertaking. The undertaking was given by the Superintendent on his own behalf and not in terms by or on behalf of the AFP. The best evidence of what occurred at the hearing before Potts J. is as set out in an attendance note prepared by the plaintiffs' solicitors, which made no reference to Mr Barker informing the judge that the Superintendent was a diplomat. Since the defendants regarded the point as irrelevant, they did not seek to challenge the plaintiffs' evidence about it by cross-examination. There are no affidavits in these proceedings from the defendants themselves, or from the High Commissioner. Laws J. held that Mr Barker had informed Potts J. that the Superintendent was a diplomat.
On 1 st November 1993 (the first working day after the undertaking was given), unbeknown to the plaintiffs or their advisers, the Superintendent appears to have sent extracts from the seized documents to Australia by fax. On 5th November 1993 Mr Justice Brooke gave leave to move for judicial review of the decision to issue the search warrants. Agreement was reached by means of a fresh undertaking by the Commonwealth of Australia, not the Superintendent, to maintain the relief afforded by the undertaking given on 29th October 1993. On 13th December 1993 the Divisional Court continued the injunctive relief by making a consent order sealing the seized documents, ordering their removal from the High Commission and preventing their use in any way until final determination of the matter.
Judge Goddard's decision to issue the warrants and the decision of the Secretary of State to make directions concerning the seized documents were subsequently quashed by the Divisional Court on the 17th March 1994. At that hearing a further order and consent order were made which finalised the injunctive relief.
Towards the end of 1994 and during the beginning of 1995 it came to the plaintiffs' notice that the orders of the High Court had been breached. A four-page fax (with 28 pages attached) had been sent from the Australian High Commission in London by the Superintendent to the Attorney General of Australia on 1 st November 1993 containing extracts from the seized documents in apparent breach of the order of 29th October 1993. The plaintiffs claim that that fax, with its attachments, was widely disseminated in Australia; copies of the fax were not sealed or kept in London in breach of the order of 13th December 1993; and in breach of the order of 17th March 1994 the documents were not disclosed or destroyed.
Three bundles of documents said to contain the fax of 1 st November 1993 were destroyed in Australia in July 1994. The appellants as a result of various enquiries under the Freedom of Information Act in Australia have now been told by the Attorney General of Australia that there are further copies of the fax of 1 st November 1993, namely, four copies in the Headquarters of the Commissioner, two copies in the High Commission (in addition to another copy retrieved from Clifford Chance), and one copy in the Attorney General's Office. By letter of 31 st October 1994 the Attorney General of Australia has admitted that the fax had been sent on 1 st of November 1993 but denied it was a breach of the Order of Potts J. The defendants, by their solicitors, have admitted breaches of the orders of 13th December 1993 and 17th March 1994 in relation to the fax, but state that they amount to a "very limited failure to comply".
The result reached by the judge was an odd one. For the Superintendent was accorded diplomatic immunity while the Commissioner, though at best he was vicariously liable for the Superintendent, enjoyed no form of immunity from contempt proceedings.
The Plaintiffs' Appeal
Waiver of immunity
By virtue of Article 31 of Schedule 1 to the Diplomatic Privileges Act 1964 ("the 1964 Act") a diplomatic agent shall enjoy inter alia immunity from the civil and administrative jurisdiction of the receiving State. However under Article 32:
"1. The immunity from jurisdiction of diplomatic agents … may be waived by the sending State.
2. The waiver must be express.
3. ….
4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary."
For the plaintiffs Mr Pleming QC submits that there has been a waiver of immunity with respect to the Superintendent. He accepts that, to be effective, a waiver must be first, express, second, made by the Head of Mission or any person for the time being performing these functions (s 2(5) of the 1964 Act), and third, must be made in full knowledge of diplomatic rights ( R v Madan [1961] 2 QB 1). Reference is made to the undertaking given by the...
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...to a State are to include references to any Government department (such as the Second Defendant), and the Court of Appeal held in Propend Finance Pty Ltd v Sing (17.4.97, 1997 WL 1103759) that this extends to individual employees or officers of the State such as the Third Defendant: “The pr......