Re Norway's (State of) Application
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Brandon Of Oakbrook,Lord Griffiths,Lord Goff of Chieveley,Lord Lowry |
| Judgment Date | 16 February 1989 |
| Judgment citation (vLex) | [1989] UKHL J0216-2 |
| Date | 16 February 1989 |
| Court | House of Lords |
[1989] UKHL J0216-2
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Griffiths
Lord Goff of Chieveley
Lord Lowry
House of Lords
My Lords,
I have had the opportunity of considering in draft the speech prepared by my noble and learned friend Lord Goff of Chieveley. I agree with it, and for the reasons he gives would allow the appeal in Norway 2, and deal with Norway 1 as he proposes.
My Lords,
I had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Goff of Chieveley. I agree with it and for the reasons which he gives I would allow the appeal in Norway 2 and deal with Norway 1 in the manner which he proposes.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Goff of Chieveley. I agree with it, and for the reasons he gives would allow the appeal in Norway 2, and deal with Norway 1 as he proposes.
My Lords,
This appeal is concerned with letters rogatory issued by a Norwegian court, addressed to the English High Court, requesting the oral examination of two witnesses in this country, Lord Kindersley and Mr. A. J. Hardman. The witnesses have opposed any order that they should submit to such oral examination; their grounds of opposition will appear hereafter, but their principal fear is that, if compelled to give evidence, they will be forced to break their duty of confidentiality as bankers. The result has been extensive litigation in this country, including two hearings before the Court of Appeal; it is the second decision of the Court of Appeal which is, primarily, the subject of the present appeal before your Lordships' House. Before considering the substance of the appeal itself, it is necessary for me to set out, as briefly as I can, the course of the proceedings which have taken place. It will then be possible to identify the issues which arise for decision on this appeal; and so to consider the rival submissions advanced before your Lordships upon those issues.
At the heart of the present proceedings lies an assessment to tax raised against the estate of a wealthy Norwegian shipowner, Anders Jahre, who died in 1982. On 14 September 1983 the County Tax Committee for the area in Norway in which he lived decided to raise a supplementary retrospective tax assessment against his estate in the sum of about 338m. Norwegian Kroner for the years 1972-82, on the ground that he had failed to declare a large part of his assets. The undeclared assets are alleged to include the assets of a Panamanian company, Continental Trust Co. Inc. ("C.T.C."). The shares in C.T.C. form part of the assets of a charitable foundation ("the trust") founded in 1976; and it is alleged that the deceased was a settlor or in control of the trust, and accordingly the beneficial owner of the assets of C.T.C. Lord Kindersley is a director of Lazards who acted as adviser to the trust since its foundation; Lazards appear to have acted as bankers to the trust. Mr. Hardman was a senior employee of Lazards who acted as assistant secretary, and subsequently as treasurer, of C.T.C., until the dissolution of C.T.C. in 1984.
The assessment raised by the County Tax Committee is enforceable as such, but may be discharged either by an order by the appropriate Norwegian court declaring the assessment null and void, or upon an appeal to the National Tax Committee ("the N.T.C."). In November 1983, the estate brought an action in the Sandefjord City Court to have the assessment set aside; the Norwegian Solicitor-General took over the defence of those proceedings. Subsequently, the estate also appealed to the N.T.C. It appears that, if the order for letters rogatory is made, the testimony of the witnesses would be made available not only to the Sandefjord court but also to the N.T.C.
In June 1984 the lawyer acting for the estate addressed a request to the Sandefjord court for the examination of Lord Kindersley; in the request, it was submitted that Lord Kindersley might be asked to give evidence in accordance with the Hague Convention of 1970 relating to the Taking of Evidence Abroad in Civil or Commercial Matters ("the 1970 Hague Convention"), to which both Norway and the United Kingdom are parties. Subsequently, in November 1984, the Solicitor-General made a further request for the examination of Lord Kindersley and Mr. Hardman. A letter of request from the Sandefjord court, addressed to the competent court in Great Britain, requesting assistance in the examination of both witnesses, formed the basis of the first set of proceedings in this country (which I shall refer to as " Norway 1"). The letter of request made no reference to any convention; I do not imagine this to be in any way unusual. Attached to the letter of request were certain pleadings, setting out the matters in respect of which evidence was sought from the two witnesses. An order for examination of the witnesses was sought in this country by the State of Norway, and on 14 January 1985, on an ex parte application, Master Prebble made the requested order. The witnesses then applied to discharge that order: the estate was then added as a respondent to the witnesses' summons. On 24 July 1985, McNeill J. dismissed the witnesses' application, but directed that the order should take effect subject to certain qualifications which he placed upon the matters in respect of which the testimony of the witnesses was sought. The witnesses appealed to the Court of Appeal [1987] Q.B. 433 against the order requiring them to give evidence: the state and the estate cross-appealed against the limitations imposed by McNeill J. By a majority (Kerr and Glidewell L.JJ., Ralph Gibson L.J. dissenting) the Court of Appeal allowed the appeal, on the ground that the letter of request was in such wide terms that it amounted to an impermissible "fishing expedition," i.e. that it was a roving enquiry designed to elicit information which might lead to the obtaining of evidence. The majority further concluded that the appeal should also be allowed on the basis that the order compelled the witnesses to violate their duty of confidence as bankers.
A number of other issues were canvassed before the Court of Appeal in Norway 1. In particular, they considered a submission by the witnesses that the English courts had no jurisdiction to entertain the application, on the ground that the application was not concerned with "proceedings in any civil or commercial matter" and so did not fall within the jurisdiction conferred on the English courts by section 1( b) of the Evidence (Proceedings in Other Jurisdictions) Act 1975. The submission was rejected by the Court of Appeal. I shall have to consider this point in depth at a later stage. At present, I need say no more than that the question was considered in detail by Kerr L.J. [1987] Q.B. 433, 470-477 (with whom, on this point, both Glidewell and Ralph Gibson L.JJ. agreed). With some reluctance he rejected an argument, advanced on behalf of the witnesses, that the relevant words in the Act of 1975, viz. "proceedings in any civil or commercial matter," (section 9(1)) should be interpreted as bearing a broadly acceptable international meaning, consistent with that used in civil law countries, and as such excluding proceedings in public law matters, and therefore excluding proceedings for the recovery of tax. In particular Kerr L.J. (who considered that the relevant proceedings must be proceedings in a civil or commercial matter both by the law of the requesting state (here Norway) and by the law of this country) felt unable to conclude, on the evidence before him, that the action in the Sandefjord court could not be regarded as proceedings in a civil matter by the law of Norway. In the closing paragraph of his judgment he said, at p. 488:
"Finally, I would add that if this judgment reflects the ultimate outcome of this appeal, then I hope that any renewal of the present letter of request in some more limited and acceptable form — if this can be devised — should be accompanied by clear evidence as to what is properly to be regarded as a 'civil or commercial matter' by the law of Norway, and in particular whether Norwegian law distinguishes between public and private law. I feel, frankly, uneasy about my acceptance, dubitante, of the very limited evidence in this connection on the present application"
Doubtless in response to that invitation, the state and the estate obtained from the Sandefjord court a second letter of request, addressed to the English High Court, once again seeking the testimony of Lord Kindersley and Mr. Hardman, but limited to 12 specific issues, and setting out the specific questions to be put to the witnesses. The letter of request contained the statement: "The action is a civil action under the law of Norway and the proceedings are a 'civil matter' under the law of Norway, for the purposes of [the 1970 Hague Convention]." It is said that these words were derived from the draft letter of request submitted to the court by the parties. No doubt they were; but they were accepted by the court. At all events, the letter of request led to the proceedings in this country in Norway 2. The application for the order in this country was made by the State of Norway, though the application was supported by the estate. On an ex parte application Master Creightmore, on 2 April 1986, made the order requested. The witnesses applied to have that order set aside; on 18 November 1986, Kenneth Jones J. dismissed the witnesses' application, subject to certain qualifications which he placed upon the...
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