Suez Fortune Investments Ltd v Talbot Underwriting Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Teare |
| Judgment Date | 05 November 2018 |
| Neutral Citation | [2018] EWHC 2929 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2012-000028 |
| Date | 05 November 2018 |
and
[2018] EWHC 2929 (Comm)
Mr. Justice Teare
Case No: CL-2012-000028
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
Peter MacDonald Eggers QC and Tim Jenns (instructed by Clyde & Co LLP) for the Second Claimant
Jonathan Gaisman QC, Richard Waller QC and Keir Howie (instructed by Norton Rose Fulbright LLP) for the Defendants
Gary Pons (instructed under the direct access scheme) for the witness known as Theo Blake
Sarah Wood (instructed by the Comptroller and City Solicitor's Department) for the Commissioner of the City of London Police
Hearing date: 26 October 2018
Judgment Approved
This action concerns a constructive total loss claim under a war risks policy on the vessel BRILLANTE VIRTUOSO which is being defended on the grounds that the vessel was “scuttled” by her Owner. The claim by the First Claimant, the Owner, has been struck out for failure to give disclosure but the claim by the Second Claimant, the vessel's mortgagee bank, is pursued. The trial is due to commence in February 2019 and scheduled to last many weeks.
This is an application by the Defendants, the war risk underwriters, for an order that a witness in this action, presently known by the pseudonym Theo Blake, should be identified by his real name. His real name is known to the Defendants but not to the Second Claimant, who supports the Defendants' application. The application is however resisted by Theo Blake and by the City of London Police.
The vessel became a constructive total loss following a fire off Aden in July 2011, deliberately started in the purifier room by means of an explosive incendiary device. The Second Claimant says that the fire was caused by the hostile act of third parties, said to be renegade members of the Yemeni navy or coast guard who planned to take the vessel to Somalia and share in a ransom with Somali pirates. The Defendants agree that those who boarded the vessel and caused the fire were indeed Yemeni, but say that they were acting as part of a conspiracy with the Owner, with the assistance of a local salvor.
There is at present no order requiring that the true identity of Theo Blake not be disclosed. However, in deference to the concerns expressed by Theo Blake and the City of London Police the Defendants have properly decided not to reveal the true identity of Theo Blake without the court's approval. Thus, this application is made under the court's general powers of case management in CPR 3.1 but it is common ground that in exercising such powers the court will have regard to the approach taken when an application is made under CPR 39.2(4) for an order that the true identity of a witness not be disclosed.
The Defendants, as is usual in a case where scuttling is alleged, rely upon a very considerable body of circumstantial evidence from which they say the court can confidently infer that there has been wilful misconduct by the Owner. In this case, in addition to that evidence, the Defendants propose to rely upon the evidence of two “whistleblowers”. One, presently known as “X”, claims personal knowledge of the alleged conspiracy to scuttle. He has not made a statement but has spoken to a claims investigator who will give hearsay evidence of what X told him. The second whistleblower is Theo Blake.
Theo Blake has been assisting the City of London Police with their criminal investigation into the loss of the vessel (pursuant to which no charges have yet been brought). He gave a signed statement to the police in the name of “Theo Blake” in October 2017. In that statement he gives evidence, as summarised by the Defendants, of the alleged conspiracy with the benefit of his personal knowledge of the events and of his dealings with a number of the key individuals alleged to have been involved in the conspiracy including the local salvor who was first on the scene to assist the vessel. By contrast, the Second Claimant says that much of his evidence is hearsay or opinion. The Defendants obtained a copy of that statement in March 2018 pursuant to an order of the court and it has been served in these proceedings. Theo Blake has been served with a witness summons. He has accepted in a further statement to the court (provided in response to this application) that that summons compels him to give evidence. It is therefore assumed that he will do so.
The reason why the Defendants wish to be able to reveal the true identity of Theo Blake to the Second Claimant is that they do not wish the credibility of Theo Blake to be limited by his anonymity. The reason why the Second Claimant wishes to know his true identity is that knowledge of his identity will assist them in investigating his credibility, for example, in investigating whether statements allegedly made by third parties to him were in fact made by them to him.
However, Theo Blake says that there is a need to keep his identity secret. He also fears that there will be threats to his mother if his identity is revealed. He relies upon threats to others, in particular threats alleged to have been made to an able seaman, Mr. Marquez, by the Owner and by the chief engineer that he will be killed if he tells what happened on the vessel, and threats to X that he will “end up in the ground”. In addition, Mr. Zavos of Norton Rose (the solicitors acting for the Defendants) understands from Theo Blake and the City of London Police that in Greece on 9/10 January 2018 calls were made to an address known only to Theo Blake's immediate family and the caller asked for Theo Blake by his real name. Theo Blake believes that people were sent in cars to “grab” him. As a result of these events the police, who deemed these events to be a credible threat to Theo Blake and his family, have removed Theo Blake to this jurisdiction where he resides at a location known only to the police. Theo Blake has seen Mr. Zavos' statement and has not challenged his account of the events in Greece.
Whilst the Defendants do not dispute that there is a credible risk to the safety of Theo Blake, the Second Claimant does not accept that there have been any threats. But, because the alleged threats may be a matter explored in evidence at the trial in relation to which the court may have to make findings, the Second Claimant is anxious that the court does not rule on such matters now. In the light of that concern the present application is to be determined upon an assumption that the threats to which I have referred are genuine. I have therefore not reviewed the evidence in any critical sense or come to any conclusion upon it.
THE LAW
The applicable legal principles were not in dispute. Ordinarily, the identity of a witness in civil proceedings will be made public as a matter of course (see Scott v Scott [1913] AC 417). The CPR provides for the Court to depart from that general rule. CPR 39.2(4) says: ‘The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.’ The burden in such applications lies with the party seeking non-disclosure (see, for example, R v Legal Aid Board (ex p. Kaim Todner) [1999] QB 966, at [2], and Yalland v Secretary of State for Exiting the European Union [2017] EWHC 629 (Admin), at [24]).
The parties based their submissions largely on the Court's common law jurisdiction to grant anonymity, rather than on the ECHR, but it is clear that the applicable principles are substantially the same whichever jurisdiction is being invoked (see Re Officer L and others [2007] 1 WLR 2135, and Adebolajo v Ministry of Justice [2017] EWHC 3568 (QB), at [19] – [23]). As Lord Reed said in Re BBC [2014] UKSC 25, ‘the common law principle of open justice remains in vigour, even when Convention rights are also applicable’.
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Suez Fortune Investments Ltd v Talbot Underwriting Ltd
...who, it was said, might harm him but that his whereabouts were not known and it was that which would continue to protect him; see [2018] EWHC 2929 (Comm). He therefore gave evidence by video link from an undisclosed location in this country. He said he did not wish to give evidence in this......
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