Case No:  HC0000788

NEUTRAL CITATION NUMBER [2008] EWHC 1247 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand
London WC2A 2LL

22nd May 2008

Before:
MR JUSTICE PETER SMITH
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B E T W E E N:

STATE OF BRUNEI AND OTHERS

and

HRH PRINCE JEFRI AND OTHERS

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Transcript from a recording by Ubiqus
Cliffords Inn, Fetter Lane, London EC4A 1LD
Tel: 020 7269 0370
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Mr Martin Pascoe QC and Mr Stephen Atherton QC appeared on behalf of the Claimant
Mr James Lewis QC, Ms Anna Dilnot and Mr David Lord appeared on behalf of the Respondent
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JUDGMENT
MR JUSTICE SMITH: 

1.	This is my ruling on the respondent’s first application.  This arises out of committal proceedings which, subject to the second application, are currently listed to commence early in June.  The respondent in his evidence says that his brother the Sultan of Brunei was made aware of the details of the Swiss bank account which is the subject matter of the majority of the applicant’s application for his committal.  The applicant which is not His Majesty but the second claimant, the Brunei Investment Agency, has provided a statement of a Mr Chalk where he sets out that he has discussed Prince Jefri’s evidence in relation to this conversation and His Majesty does not accept any such conversation took place.  That is a hearsay statement which the applicant may wish to rely upon at the trial if I can put it that way, if the issue as to whether or not there was any such communication is a live issue at the hearing of the committal proceedings.  
2.	The respondent therefore applies for an order that he be at liberty to cross-examine His Majesty on that statement.  There is nothing in reality objectionable about that procedure.  The respondents have followed the correct procedure where a hearsay statement is served under the Civil Evidence Act 1995 and it provides for them to obtain an order for the witness’s examination and if that witness attends, his cross-examination by them.  Their application initially also wanted an order that His Majesty’s evidence be removed if he did not so attend.  That raises far more controversial issues involving the application of the Civil Evidence Act to committal proceedings.  There is, if I can use this word, a collision of that principle with Article Six of the Human Rights and the right of the respondent to confront his accusers by live evidence as interpreted by the courts.  However Mr Lewis QC who with Miss Dilnot and Mr Lord appears for the respondent does not press that now and acknowledges that the time for arguing that is when the hearing starts and in the light of whether or not His Majesty has agreed to come to court.
3.	Given that, the only question, therefore, is whether or not I should decline to make the order because His Majesty has an immunity from orders of the court.  In effect, Mr Pascoe QC is submitting that I should not make an order that is a waste of time because he will not comply and there is nothing to suggest that he will waive his immunity.  That might be right but I think the respondents should be given the opportunity to see whether or not His Majesty is willing to come and give evidence and without such an order, they will not have that opportunity.  
4.	Mr Pascoe QC acknowledged that apart from the immunity issue, he would have no grounds for resisting the application.  I do not believe the immunity issue is a ground for not making the order.  The immunity issue is a matter for His Majesty, for him to decide whether he wishes to assert that in response to the order.  It is not for me in my view to pre-judge how he should respond.  He can respond in any way which he thinks appropriate when he is informed of the decision of the court.  For those reasons I will make the first part of the order that is sought by the respondents and not make an order in respect of the second part.  I shall not dismiss that but I think I will adjourn that part to the hearing of the committal application.