Zakay v Zakay
| Jurisdiction | England & Wales |
| Judgment Date | 30 April 1996 |
| Court | Supreme Court (Gibraltar) |
Evidence – Assistance to foreign court – Examination of witness – Relevance of information sought – Need to particularise documentary evidence sought – Balancing public interest in witness’ duty of confidentiality and public interest in court investigating fully matters brought before it.
In divorce proceedings in England the wife made a claim for financial provision for herself and the child of the family. The husband claimed that he did not have the financial resources to meet the wife’s claims. The wife alleged that the husband was wilfully suppressing his real assets and that he was worth millions of pounds. In particular, the wife alleged that the husband was beneficially interested in a group of companies with tangible fixed assets of a net book value of almost £50m. A trust company registered in Gibraltar provided trustee services and in such capacity could hold assets directly or indirectly under the terms of settlements established under Gibraltar law. The trust company held certain shares in the husband’s group of companies. By a letter of request issued by the senior district judge of the Family Division in London the assistance of the Supreme Court of Gibraltar was sought to ascertain the true beneficial owner of the group of companies. The letter of request sought an order that a named officer of the trust company be examined and required to produce documentation on this matter. A judge in Gibraltar made an order as requested. The officer of the trust company applied to the chief justice to set aside the order on the grounds (i) that the information sought was not sufficiently relevant to the English proceedings to give jurisdiction to the court in Gibraltar; (ii) that the documents requested were not sufficiently particularised and that the wife had embarked on a ‘fishing expedition’; and (iii) that the court ought to exercise its discretion to refuse the request from the English court to examine the witness on the ground of confidentiality and public interest.
Held – (1) The court should only order an examination of a witness and the production of documents by him where relevant to the proceedings in the requesting court. In the present case, the relevance of the evidence and documents could only be known once examination and production had taken place. In that situation the only practical course was for the court to look at all the available evidence and, taking care to ensure that the rights of third parties were so far as possible protected, determine whether a prima facie case had been made out as to the relevance of evidence and documents. The evidence indicated that it was very relevant to the English
proceedings whether the husband was beneficially entitled to shares in the group of companies.
(2) The documents requested for production were narrowly confined to the single issue they were aimed to support, ie the true ownership of the group of companies. This was not a fishing expedition in the sense of casting a line in the hope that something would be caught. The fish had been identified and the court was endeavouring to spear it.
(3) On the issue of public policy and confidentiality, the court had to balance the public interest in the power of the courts to investigate fully matters brought before them against the public interest of a witness’ duty of confidentiality. In the present case the wife had suggested that in order to protect third parties she was prepared to submit to an order that, if the applicant asserted by letter that a document was confidential to a third party and requested limitation of disclosure to only her lawyers, then disclosure should be so limited but with liberty to apply to the court for the limitation to be lifted or varied. The applicant’s concern regarding the confidentiality of third parties would be met by including a provision to that effect in the judge’s order.
Cases referred to in judgmentB v B (matrimonial proceedings: discovery) [1978] Fam 181, [1979] 1 All ER 801, [1978] 3 WLR 624.
Panayiotou v Sony Music Entertainment (UK) Ltd [1994] Ch 142, [1994] 1 All ER 755, [1994] 2 WLR 241.
Norway’s (State) Application, Re (Nos 1 and 2) [1990] 1 AC 723, [1989] 1 All ER 745, [1989] 2 WLR 458, HL; affg Re State of Norway’s Application (No 1) [1987] QB 433, [1989] 1 All ER 661, [1986] 3 WLR 452, CA; rvsg Re State of Norway’s Application (No 2) [1990] 1 AC 723, [1989] 1 All ER 701, [1988] 3 WLR 603, CA.
Wadman v Dick[1998] 3 FCR 9, Jersey CA.
Letter of requestThe senior district judge of the Family Division requested the help of the Supreme Court of Gibraltar in obtaining information about a husband’s financial situation in connection with his wife’s application for financial provision in divorce proceedings in England. The case was heard in chambers. The facts are set out in the judgment of Schofield CJ.
H Licudi for the husband.
Nicholas Mostyn (instructed by J J Neish) for the wife.
SCHOFIELD CJ.I have adjourned delivery of the judgment into open court.
On 17 August 1995 a letter of request was issued by the senior district judge of the Family Division sitting at Somerset House in the Strand, London, requesting the assistance of this court in the matter of Sarah Ruth
Zakay v Saul Zakay, which is pending in that registry. Mrs Zakay (the petitioner) claims against her husband (the respondent) a decree of divorce, an order for maintenance pending suit, an order for periodical payments and secured periodical payments for herself, a lump sum payment for herself and the child of the family and a property adjustment order. The English court has sought an order, inter alia, that Mr Robert Guest of Credit Suisse Fides Trust Ltd, a trust company registered in Gibraltar, be examined and be asked the following question: ‘What person, persons, company or other entity is the true beneficial owner of Topland Group Plc’. The second part of the request, so far as the applicant is concerned...
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