Re Norway's (State of) Application
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR,LORD JUSTICE GLIDEWELL,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 12 February 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0212-4 |
| Docket Number | 86/0139 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 February 1986 |
In the Matter of the Evidence (Proceedings in other Jurisdictions) Act 1975
and
In the Matter of a Civil Action Now Pending Before the City Court of Sandefjord, Norway
[1986] EWCA Civ J0212-4
Lord Justice Kerr
Lord Justice Glidewell
and
Lord Justice Ralph Gibson
86/0139
No. 164/85
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(JUDGE IN CHAMBERS)
Royal Courts of Justice,
MR. M. CRYSTAL, Q.C. and MR. J. HIGHAM (instructed by Messrs. Linklaters & Paines, EC2) appeared on behalf of the Appellants, the proposed witnesses.
MR. N. BRATZA (instructed by Messrs. MacFarlanes, EC4) appeared on behalf of the Plaintiff/Respondent.
MR. A. BOSWOOD (instructed by Messrs. Freshfields, EC1) appeared on behalf of the Defendant/Respondent.
This is an appeal from a judgment of McNeill J. delivered on 24th July 1985 in open court after a hearing in Chambers on appeal from part of an order made by Master Prebble on 14th January 1985. The case raises novel and complex issues of considerable importance, both in this country and internationally, and the hearings below and here occupied some five and seven days respectively. It arises out of a request by the State of Norway, supported by the estate of a deceased Norwegian shipowner, Mr. Anders Jahre, (the "Estate"), for the examination as witnesses pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1975 ("the 1975 Act") of Lord Kindersley, a director of Lazard Brothers & Co. Ltd ("Lazards") and of Mr. A.J. Hardman, a former Administration Manager (Banking Division) of Lazards, in aid of proceedings in Norway concerning a disputed retrospective assessment for tax on the Estate for the years 1972–1982 amounting to just under 338 million Norwegian Kroner. The basis for the assessment is that Mr. Jahre is alleged to have avoided tax by transferring—and in effect concealing—funds or other assets about which the proposed witnesses from Lazards ("the witnesses") are believed to be able to give evidence.
The original request was that the witnesses should be ordered to give oral evidence and to produce certain documents or classes of documents. Lazards and the witnesses take strong objection to this request on a variety of grounds, including the fact that it would involve a breach of their duty of confidentiality as bankers.
On an ex parte application under RSC Order 70 Rule 2 Master Prebble granted the application for the oral examination of the witnesses without qualification, but he declined to make any order for the production of documents on the ground that the request appeared too wide and that there was no reason to think that the documentation was in the custody, possession or power of the witnesses. There was no appeal against the latter part of Master Prebble's order, but the witnesses appealed to McNeill J. on the part which ordered their oral examination. He heard the matter inter partes supported by a considerable amount of further evidence. Originally only the State of Norway, represented by the Solicitor-General, Mr. Bjoern Haug, was the party on whose behalf the request was made, but on the application of the Estate, Stuart-Smith J. ordered on 25th June 1985 that the Estate be joined as a party, on terms, inter alia, that it filed no evidence, since the matter was shortly to come on for hearing. Effectively, therefore, the contest is between the State and the Estate, as the applicants on whose behalf the request is made, and the witnesses as the respondents who oppose it.
McNeill J. dismissed the witnesses' appeal against the order for their oral examination, but subject to certain directions limiting the scope of the questions which they could be required to answer, as set out later on in this judgment. The witnesses now appeal to this court against his decision and ask that the order for their oral examination be set aside, and the State and Estate cross-appeal for the removal of the judge's directions limiting the scope of the examination.
It is common ground that the Act was passed mainly in order to give effect to the accession by the United Kingdom, under the auspices of the Hague Conference on Private International Law, to the "Convention on the Taking of Evidence Abroad In Civil or Commercial Matters" concluded on 18th March 1970 ("the 1970 Convention"). This is nowhere mentioned in the Act, but if authority be required, a number of statements that this was one of the purposes of the 1975 Act are to be found in the decision of the House of Lords in Rio Tinto Zinc Corp. v. Westinghouse Electric Corp. (1978) A.C. 547 ("Westinghouse"): see per Lord Wilberforce at page 608B, Viscount Dilhorne at page 618D, Lord Diplock at page 632G, Lord Fraser at page 641D and Lord Keith at page 653 F.
It is convenient to begin by setting out the relevant provisions of the 1975 Act, and for convenience I have underlined a number of words and phrases which are of particular importance for present purposes.
The "long title" is in the following terms:
"An Act to make new provision for enabling the High Court, the Court of Session and the High Court of Justice in Northern Ireland to assist in obtaining evidence required for the purposes of proceedings in other jurisdictions; to extend the powers of those courts to issue process effective throughout the United Kingdom for securing the attendance of witnesses; and for purposes connected with those matters."
The relevant parts of sections 1, 2 and 3 are as follows:
"1. Where an application is made to the High Court, the Court of Session or the High Court of Justice in Northern Ireland for an order for evidence to be obtained in the part of the United Kingdom in which it exercises jurisdiction, and the court is satisfied-
(a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal ("the requesting court") exercising jurisdiction in any other part of the United Kingdom or in a country or territory outside the United Kingdom; and
(b) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated,
the High Court, Court of Session or High Court of Justice in Northern Ireland, as the case may be, shall have the powers conferred on it by the following provisions of this Act.
"2. (l) Subject to the provisions of this section, the High Court, the Court of Session and the High Court of Justice in Northern Ireland shall each have power, on any such application as is mentioned in section 1 above, by order to make such provision for obtaining evidence in the part of the United Kingdom in which it exercises jurisdiction as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made; and any such order may require a person specified therein to take such steps as the court may consider appropriate for that purpose.
(2) Without prejudice to the generality of subsection (1) above but subject to the provisions of this section, an order under this section may, in particular, make provision—
(a) for the examination of witnesses, either orally or in writing;
(b) for the production of documents….
(3) An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the court making the order (whether or not proceedings of the same description as those to which the application for the order relates); but this subsection shall not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath where this is asked for by the requesting court.
(4) An order under this section shall not require a person—
(a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or
(b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power.
"3.—(l) A person shall not be compelled by virtue of an order under section 2 above to give any evidence which he could not be compelled to give—
(a) in civil proceedings in the part of the United Kingdom in which the court that made the order exercises jurisdiction; or
(b) subject to subsection (2) below, in civil proceedings in the country or territory in which the requesting court exercises jurisdiction…..
(4) In this section references to giving evidence include references to answering any question and to producing any document…"
I need not refer to section 4. Section 5 contains similar provisions for criminal proceedings with certain qualifications; in particular, it only applies to requests made by courts or tribunals outside the United Kingdom and only in relation to criminal proceedings which have already been instituted. Section 6 contains a power to apply the provisions of sections 1 to 3 to certain kinds of "international proceedings" by Order in Council, but it has no relevance here.
Finally, one comes to the important part of the interpretation provision, section 9, on which much of the...
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