Seyed Kamaleddin Nejati Gilani v Mohammed Johngir Saddiq (1)
| Jurisdiction | England & Wales |
| Judge | David Cooke,HHJ |
| Judgment Date | 13 November 2018 |
| Neutral Citation | [2018] EWHC 3084 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: C30BM088 |
| Date | 13 November 2018 |
[2018] EWHC 3084 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
Business List (ChD)
Birmingham Civil Justice Centre
Bull Street, Birmingham B4 6DS
HHJ David Cooke
Case No: C30BM088
Lee Schama (instructed by Cubism Law) for the Claimant
Avtar Khangure QC (instructed by Aspect Law Ltd) for the First to Third Defendants
Steven Fennell (instructed by Schofield Sweeney LLP) for the Fourth to Sixth Defendants
Hearing date: 25 September 2018
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HHJ David Cooke
This is the claimant's application pursuant to CPR 31.22 for permission to use documents disclosed by the defendants in this claim as evidence in separate criminal proceedings, namely a private prosecution brought by him against the first and second defendants (“the Saddiq brothers”) on charges of fraud arising out of some of the same matters as give rise to this civil claim.
By way of very brief summary of a somewhat convoluted procedural history, in this claim the claimant alleges that he paid £401,000 to the Saddiq brothers pursuant to arrangements under which he agreed to fund (in part) the development of two pubs, which they owned through the third defendant company. His case is that it was a joint venture and he was to have a 50% share in each property. One has been developed and is now a successful Indian restaurant. The other has not but has potential for residential conversion. He claims that in breach of these arrangements he has received no return on his investment and no share of the income of the restaurant, and that the Saddiq brothers have not transferred the properties so as to make him a joint legal owner but have instead (and after he indicated he intended to commence proceedings) caused the undeveloped property to be sold without paying him any of the proceeds and transferred the trading restaurant to the fourth defendant, a company controlled by their sons (the fifth and sixth defendants).
I have not been provided with a copy of the indictment in the criminal proceedings, but it is common ground that it contains four counts of fraud relating to the alleged mortgaging of these two properties without the claimant's consent (allegedly imperilling the interest he claims in them) and to the transfers of those properties referred to above. It is a private prosecution instituted by the claimant and it is also common ground that the CPS has exercised its right to review the case and decided not to intervene, being satisfied that it is properly brought as regards the evidential and public interest tests.
Various causes of action are pleaded in the civil claim but, as the defendants point out and in contrast to the charges in the prosecution, there is no pleading of fraud.
The Saddiq brothers made applications to the Crown Court to stay the prosecution as an abuse of process, alternatively to dismiss the charges for lack of evidence. These came before HHJ Thomas QC in August 2017, when it was argued by the defendants that (quoting from his ruling)
“the purpose of these criminal proceedings is to put pressure on the defendants in regard to civil proceedings between the same parties in regard to the same facts. The criminal case is said to be merely a continuation of or duplication or re-working of the civil case by other means.”
HHJ Thomas QC accepted that argument and directed a stay, but his decision was overturned by the Court of Appeal ( [2017] EWCA Crim 2119) which concluded that this was not a decision that the judge could reasonably have come to. The application to dismiss the charges for lack of evidence was remitted to the Crown Court with a direction that it be heard by different judge, and I am told that it is listed for a date in November of this year.
The claimant's solicitor was asked to specify which documents are sought to be used, and has served a list of 203 documents. It is accepted that this comprises all the documents disclosed by all the defendants, with the exception of witness statements. Inspection has been given of all of these documents; no claim to withhold any of them having been made by any of the defendants, whether on grounds that they would tend to incriminate or otherwise.
CPR 31.22 provides as follows:
“31.22
(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –
(a) …
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree.”
It is agreed that this provision replaces the former implied undertaking to similar effect, see Marlwood Commercial Inc v Kozeny [2004] EWCA Civ 798 at para 9. In that case it was said (para 43 summarising previous authorities and particularly Crest Homes Plc v Marks [1987] AC 829) that where permission is sought “it is for the applicant to make good his case, cogently and persuasively, that there are special circumstances which justify permission and that permission will not occasion injustice to the person giving disclosure”.
Mr Fennell in his skeleton submitted that “the bar is high”, following a statement in those words by Eder J in Tchenguiz v Director of the Serious Fraud Office [2014] EWHC 1315 (Comm), but I do not consider that Eder J intended those words to add anything to what was said in Crest and Marlwood; the full sentence is as follows (para 18):
“However, given the compulsive nature of the disclosure process in legal proceedings and consistent with Marlwood and Crest Homes, I fully accept that the burden of proof lies on the applicant seeking permission and that the bar is high, i.e. the applicant must show “cogent and persuasive reasons” why any particular document should be released amounting to “special circumstances”. In my view it is important that these requirements are not in any way watered-down.”
Eder J was thus using the phrase “the bar is high” to summarise or describe the requirement set out in the earlier cases to show “cogent and persuasive reasons” and not to add to it.
In Smithkline Beecham plc v Generics (UK) Ltd [2003] EWCA Civ 1109 Aldous LJ (with whom the other LJJ agreed) rejected an argument that sought to apply a very high threshold for permission, and particularly one that could not be overcome in favour of a purely private interest, made by reference to a passage in the judgment of Whitford J in Halcon International Inc v Shell Transport and Trading Co [1979] RPC 97 at p 109:
“However, these authorities to my mind, lead to this conclusion, that the use of a document disclosed in a proceeding in some other context, or even in another proceeding between the same parties in the same jurisdiction, is an abuse of process unless there are very strong grounds for making an exception to the general rule. It does, I think, emerge that some overriding public interest might be a good example, but not the mere furtherance of some private interest even where that private interest arises directly out of or is brought to light as a result of the discovery made”
Aldous LJ said in relation to this:
“36 … that statement was not followed by the House of Lords in Crest Homes Plc v Marks [1987] AC 829 at 860. Lord Oliver said:
“Your Lordships have been referred to a number of reported cases in which application has been made for the use of documents obtained under Anton Piller orders or on general discovery for the purpose of proceedings other than those in which the order was made… I do not, for my part, think that it would be helpful to review these authorities for they are no more than examples and they illustrate no general principle beyond this, that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery. As Nourse L.J. observed in the course of his judgment in the instant case, each case must turn on its own individual facts.”
37 … it is important under the CPR to have in mind the overriding principles when considering whether to lift an order made under CPR 31.22. The most important consideration must be the interest of justice which involves considering the interest of the party seeking to use the documents and that of the party protected by the CPR 31.22 order. As Lord Oliver said each case will depend upon its own facts.”
In Crest Homes, permission was given to use documents disclosed in one action against a copyright infringer in contempt proceedings against the same infringer but in a separate action, Lord Oliver emphasising the close factual relationship between the two actions and the “purely adventitious” circumstances in which it came about that there were separate actions in the first place. In Smithkline Beecham, an order made by a judge under CPR 31.22 in one set of proceedings by a patentee against an infringer was varied so as to permit documents belonging to third parties but disclosed by the defendant to be used by the patentee in a second set of proceedings against a different alleged infringer, it being in the interests of justice that the second action required them to be available, subject to an order protecting the interests of the owners of the documents.
As to disclosure for use in criminal proceedings, Mr Schama referred to a number of authorities...
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...purpose is shown) and the Court has to be satisfied there is no injustice to the party compelled to give disclosure ( Gilani v Saddiq [2018] EWHC 3084 (Ch) at §21). 41 Documents read by a judge out of court before the hearing on which the judge based their decision and to which they made c......
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