Sociedade Nacional de Combusitveis de Angola UEE and Others v Lundqvist and Others

JurisdictionEngland & Wales
JudgeLORD JUSTICE STAUGHTON,LORD JUSTICE BELDAM,THE VICE-CHANCELLOR
Judgment Date31 January 1990
Judgment citation (vLex)[1990] EWCA Civ J0131-5
Docket Number90/0069 1987 S. No. 6978
CourtCourt of Appeal (Civil Division)
Date31 January 1990
(1) Sociedade Nacional De Combustiveis De Angola, U.E.E.
(2) Sociedade Nacional De Combustiveis De Angola Limited
(3) Sociedade Nacional De Combustiveis De Angola S.A.
(Plaintiffs) Respondents
and
(1) Stellan Lundqvist (Male)
(2) Susan Butt
(3) Ceri Evans (Male)
(4) S.L. Oil Executive Services A.C.
(5) MML International Limited (formerly MML Multinational Management Limited)
(6) Tradoil Limited (formerly Gemoil Limited)
(First and Fourth Defendants) Appellants

[1990] EWCA Civ J0131-5

Before:

The Vice-Chancellor

(Sir Nicolas Browne-Wilkinson)

Lord Justice Staughton

Lord Justice Beldam

90/0069

1988 FOLIO 1134

1987 S. No. 6978

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (COMMERCIAL COURT)

(MR. JUSTICE LEGGATT)

Royal Courts of Justice.

MR. ALAN NEWMAN, Q.C. and MR. ANTHONY WHITE (instructed by Messrs. Simon Muirhead & Burton) appeared on behalf of the (Plaintiffs) Respondents.

MR. ANTHONY CLARKE, Q.C. and MR. SIMON RAINEY (instructed by Messrs. Clyde & Co.) appeared on behalf of the (First and Fourth Defendants) Appellants.

LORD JUSTICE STAUGHTON
1

Sociedade Nacional de Combustiveis de Angola UEE are the national oil company of Angola and the first plaintiffs in this action. I shall call them Sonangol UEE. The second and third plaintiffs ("Sonangol Ltd." and "Sonangol S.A.") are companies controlled by Sonangol UEE, incorporated in England and Liberia respectively. The role of Sonangol Ltd. is that which is important for the purposes of this appeal. Between January 1983 and February 1987 their task was to arrange the sale of oil exported from Angola.

2

During the same period Mr. Stellan Lundqvist, the first defendant, effectively ran the operations of Sonangol Ltd. In point of form he acted as an employee of S.L. Oil Executive Services A.G. ("SLOES"), a company which he controlled and the fourth defendants in this action; SLOES in turn provided consultancy services for Sonangol Ltd.

3

The case for the Sonangol companies is that Mr. Lundqvist conspired with others to defraud them of sums totalling at least $88 million. This is said to have been done by arranging the sale of Angolan oil or oil products at less than the market price, and then arranging a resale by the purchaser in such a manner that profit enured to the benefit of Mr. Lundqvist or companies which he controlled.

4

The defence, in broad terms, is that these transactions were approved at the highest level in Angola, in order to provide funds for projects which would benefit Angola. That is the merest outline of the claim and the defence; I shall have to enter upon more detail later.

5

The proceedings began with an ex parte order of Mr. Justice Alliott on 5th November, 1987. This contained (i) an Anton Piller order, permitting representatives of the Sonangol companies to enter and search premises in England, and to copy and keep documents found there, (ii) an injunction restraining the defendants from destroying or removing documents, (iii) a Mareva order against Mr. Lundqvist and another defendant in respect of assets within the jurisdiction, (iv) an order that Mr. Lundqvist and four other defendants should answer by affidavit questions to be asked by the solicitors for the Sonangol companies, and (v) an order that Mr. Lundqvist disclose on affidavit his assets both in and out of the jurisdiction.

6

The writ was issued on 6th November, 1987, and the Anton Piller order executed four days later. There followed a series of interlocutory battles which are only of indirect relevance to this appeal. On 23rd November Mr. Justice Hobhouse gave directions as to the questions which the Sonangol companies required to be answered under the order of Mr. Justice Alliott. Their solicitors then served a formidable list of questions, including inquiries as to whether Mr. Lundqvist had any beneficial ownership in 31 named companies.

7

Mr. Justice Hobhouse made a further order on 26th November. This restricted the order of Mr. Justice Alliott for disclosure to assets within the jurisdiction, in accordance with the view of the law and practice which prevailed at that time. It also made provision for Mr. Lundqvist to claim the privilege against self-incrimination, if he wished, in respect of the questions required to be answered and the documents seized under the order of Mr. Justice Alliott.

8

Mr. Lundqvist did claim the privilege against self-incrimination in certain respects, and Mr. Justice Hobhouse ruled upon that claim by an order of 10th December, 1987. The Anton Piller order was set aside in part; certain of the documents obtained under it were ordered to be returned, and any copies to be destroyed or delivered up. As to the questions required to be answered, Mr. Lundqvist was content to answer in regard to two of the 31 companies, but claimed privilege in respect of the remainder. Mr. Justice Hobhouse upheld that claim. It was argued for the Sonangol companies that Mr. Lundqvist was bound to assert separately, in respect of each of the remaining 29, that an answer would tend to incriminate him. That argument was rejected by the judge in these terms:

"The line,of questioning as a whole is one where if the defendant were asked to pick and choose between the various companies or names and justify his position with regard to each individually, or specifically claim privilege with regard to each individually, that very exercise would tend to incriminate him beyond the mere fact of his claiming privilege."

9

Pleadings were then served as between the Sonangol companies on the one hand and Mr. Lundqvist and SLOES on the other; and on 19th April, 1988 a summons was issued on behalf of the Sonangol companies seeking an interim order for an account. This was mentioned before Mr. Justice Hobhouse on 22nd July, 1988. The judge took the sensible course of discouraging the application in plain terms, with the result that it was adjourned to the trial with liberty to apply and costs reserved. The Sonangol companies thus failed for the second time to obtain interim disclosure of what had happened to the proceeds of resale of their oil.

10

Then there was a pause so far as events material to this appeal are concerned. Meanwhile decisions of this court in other cases revealed a different view of the law and practice as to Mareva injunctions over assets abroad. As a result, on 19th May, 1989 the Sonangol companies obtained ex parte from Mr. Justice Phillips an order restraining Mr. Lundqvist and SLOES from disposing of or dealing with any of their assets outside England and Wales

"whether such assets, property, money or goods be in their own names or jointly with any other persons or in the names of agents, nominees or trustees for them"

11

save in so far as the value exceeded $90 million. The order recited undertakings, amongst others, by the Sonangol companies as follows:

"(vii) That they will not, without first seeking and obtaining the leave of this Court, make any application to any foreign Court to enforce the provisions of this Order.

(viii) That they will not, without first seeking and obtaining the leave of this Court, make use of any information disclosed pursuant to the provisions of this Order in any proceedings in any foreign Court against the First or Fourth Defendants."

12

At last I come to the topic which is the subject matter of this appeal. Paragraph 2 of the order of Mr. Justice Phillips read as follows:

"The First Defendant and the Fourth Defendant by the First Defendant do within 28 days of service of this Order upon his Solicitors, Messrs Clyde & Co, make and file an Affidavit giving details of the value and whereabouts of all his assets, property, money and goods wherever situated including without prejudice to the generality of the foregoing all beneficial interests in any company or body wherever incorporated or established and any assets, property, money or goods held jointly with any other person or in the names of agents, nominees or trustees, provided that if within 7 days of service of this Order upon Clyde and Co either Defendant gives notice to the Plaintiffs' Solicitors of an application to set aside this paragraph of this Order the obligation to comply with this paragraph shall be suspended until that application has been determined."

13

It is to be noted that the order relates to " his assets", i.e. Mr. Lundqvist's. That may have been a mistake for "their"—so as to include the assets of SLOES; but I am not convinced that it was.

14

Mr.Lundqvist and SLOES applied for an order that the ex parte order of Mr. Justice Phillips be set aside or discharged, on a number of grounds which included the privilege against self-incrimination. Mr. Justice Leggatt on 27th June, 1989 dismissed that application, thus upholding both the injunction against dealing with assets outside the jurisdiction and the order for disclosure of such assets. He did, however, leave it open to Mr. Lundqvist and SLOES "to persist in the claim for privilege when responding upon affidavit and to support it properly by evidence upon which the Court may act." The judge gave leave to appeal, with a stay of execution, but only in respect of the order for disclosure and the privilege against self-incrimination.

15

On that topic the judge may be said to have directed himself in accordance with the judgment of Lord Esher M.R. in In re Genese, ex parte Gilbert [1886] 3 Morrell 223 at page 226, where it was said that a witness

"must satisfy the court that there is a reasonable probability that his answer will or may criminate him."

16

The conclusion of Mr. Justice Leggatt was in these terms:

"In relation, therefore, to paragraph 2 of Phillips J.'s order, I...

To continue reading

Request your trial
56 cases
  • R v K
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 28 July 2009
    ...on established law, to be protected from these consequences.” 12 The same issue arose for consideration in Socieda Nacional de Combustiveis de Angola UEE v Lundqvist [1991] 2 Q.B. 310. Staughton L.J., having considered a number of earlier authorities, including Rio Tinto v Westinghouse and ......
  • Tate Access Floors Inc. and Another v Boswell and Others
    • United Kingdom
    • Chancery Division
    • 13 June 1990
  • Microsoft Corporation v Cx Computerpty Ltd
    • Australia
    • Federal Court
    • Invalid date
  • Beckkett Pte Ltd v Deutsche Bank AG and Another
    • Singapore
    • High Court (Singapore)
    • 22 April 2005
    ...would expose it to potential criminal proceedings in Indonesia. 28 In Sociedade Nacional de Combustiveis de Angola UEE v Lundqvist [1990] 3 All ER 283, Beldam LJ said, at 297 to Thus, in my judgment, it is sufficient to support a claim to privilege against self-incrimination that the answer......
  • Request a trial to view additional results
10 books & journal articles
  • ISSUES CONCERNING COMPLIANCE
    • United Kingdom
    • Journal of Money Laundering Control No. 4-2, April 2000
    • 1 April 2000
    ...[1994] QB 366, at 377 (post-judgment freezing injunction and disclosure order). (120) (1812) 34 ER 502. (121) [1978] AC 547. (122) [1991] 2 QB 310. (123) [1998] 3 All ER 74. (124) Jackson ν Gamble [1983] 1 VR 552. (125) See Rank Film Distributors Ltd ν Video Information Centre [1982] AC 380......
  • The Self-Incrimination Privilege in Care Proceedings and the Criminal Trial and ‘Shall Not Be Admissible in Evidence’
    • United Kingdom
    • Journal of Criminal Law, The No. 73-1, February 2009
    • 1 February 2009
    ...any passing off; and (c) proceedings brought to prevent any apprehendedinfringement of such rights or any apprehended passing off’.20 [1991] 2 QB 310 at 338.21 Civil contempt is not a criminal offence, even if committed in connection with acriminal case, see, e.g. Cobra Golf Ltd vRata [1998......
  • Table of Cases
    • Canada
    • Irwin Books The Law of Equitable Remedies. Second Edition
    • 18 June 2013
    ...v. British Columbia, 2004 BCSC 205 ..................... 463 Sociedade Nacional de Combustiveis de Angola U.E.E. v. Lundqvist (1990), [1991] 2 Q.B. 310, [1991] 2 W.L.R. 280, [1990] 3 All E.R. 283 (C.A.) .........................................................143, 155, 156 Société des Acadi......
  • Search Orders - Anton Piller Injunctions
    • Canada
    • Irwin Books The Law of Equitable Remedies. Second Edition
    • 18 June 2013
    ...Management Ltd. v. Dixon (2004), 8 C.P.C. (6th) 57 (Ont. S.C.J.). 15 Sociedade Nacional de Combustiveis de Angola U.E.E. v. Lundqvist , [1991] 2 Q.B. 310 (C.A.) [ Sociedade Nacional ] . 16 See Profekta International Inc. v. Mai , [1997] 1 F.C. 223 (T.D.). 17 See Cook Industries Inc. v. Gall......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT