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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Macdoel and Ors v Rep of Brazil and Ors [2007] JCA 069 (19 March 2007) URL: http://www.bailii.org/je/cases/UR/2007/2007_069.html Cite as: [2007] JCA 69, [2007] JCA 069 |
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[2007]JCA069
COURT OF APPEAL
19th March 2007
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Before : |
Sir Philip Bailhache, Kt., Bailiff,
President; |
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Between |
(1) Macdoel Investments Limited |
Appellants |
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(2) Sun Diamond Limited |
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(3) Durant International Corporation |
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(4) Kildare Finance Limited |
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And |
(1) The Federal Republic of Brazil |
Respondents |
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(2) The Municipality of Sao Paulo |
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(3) Citibank NA |
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(4) Deutsche Bank International Limited |
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(5) Deutsche International Custodial Services Limited |
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(6) Deutsche International Corporate Services Limited |
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(7) Deutsche International Trustee Services (CI) Limited |
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Appeal by the Appellants against an Order of the Samedi Division of the Royal Court that the Third to Seventh Respondents give disclosure as set out in that Order of Justice.
Advocate D. S. Steenson for the Appellants.
Advocate N. M. Santos-Costa for the First and Second Respondents.
JUDGMENT
JONES JA:
Introduction
1. In this action, the respondents, the Federal Republic of Brazil ("the Federal Republic") and the Municipality of Sao Paulo ("the Municipality"), seek disclosure of certain documents, in connection with the investigation of civil claims against Paulo Maluf ("Mr Maluf") and others.
2. In their Order of Justice, the respondents aver that Mr Maluf was the Governor of the State of Sao Paulo between 1979 and 1983 and Mayor of the city of Sao Paulo between 1993 and 1996. The allegations against him involve conspiracy, corruption, embezzlement of public funds and money laundering, in connection with two major public works projects that were undertaken in Sao Paolo when Mr Maluf was Mayor. It is averred that the price of the works was fraudulently inflated and the excess, running into hundreds of millions of US dollars, was diverted into the hands of Mr Maluf, and/or individuals or entities associated with him, including members of his family, via bank accounts in Switzerland and Jersey. The associated individuals and entities are referred to in the pleadings as "the Connected Persons".
3. At the outset of the action, the respondents convened Citibank NA, Deutsche Bank International Limited, Deutsche International Custodial Services Limited, Deutsche International Corporate Services Limited and Deutsche International Trustee Services (CI) Limited, respectively, as first to fifth defendants, ("the banks"). The appellants were subsequently convened as sixth to ninth defendants.
4. The disclosure sought is of documentation relating to accounts held with the banks in the names of the appellants and certain other individuals and entities, including Mr Maluf. The appellants have opposed the application, whilst the banks have submitted to the wisdom of the Court.
5. The respondents aver that they wish to investigate and, if justified, bring proprietary and/or personal civil claims against Mr Maluf and some or all of the Connected Persons in whatever jurisdiction appears to be the appropriate one, when all the facts are established. They claim, also, that the disclosure orders which they seek are just and necessary in order to give effect to their equitable right to trace their money.
6. By Act of Court, dated 1st November 2006, the Royal Court ordered disclosure in the terms sought. It is against that Order that this appeal is taken.
The Court's Power to Order Pre-Trial Discovery
7. It has long been established in the law of England and Wales that a person can not be made a defendant to an action (Plummer v. May (1750) 1 Ves.Sen. 426 per Lord Hardwicke L.C.). That principle is known as the "mere witness rule".
8. Co-existing with the mere witness rule, however, is what Lord Reid has described as , which is that, (Norwich Pharmacal Co. and Others v. Customs and Excise Commissioners [1974] AC 133, per Lord Reid at page 175). It is convenient to refer to that dictum as "Lord Reid's statement of principle".
9. In Bankers Trust v Shapira and Others [1980] 1 W.L.R. 1274, the plaintiff sought disclosure of information in order to enable it to trace funds that had allegedly been obtained by fraud. The identity of the alleged wrongdoers was known. In ordering disclosure, the Court of Appeal of England and Wales expressly adopted and applied Lord Reid's statement of principle. In the course of his Judgment, Lord Denning M. R., with whom Waller and Dunn L.JJ. agreed, said -
10. In P v T Ltd. [1997] 1 W.L.R. 1309, Sir Richard Scott V-C held that Lord Reid's statement of principle encompassed the provision of information to a plaintiff for the purpose of assisting him to determine whether an unidentified alleged wrongdoer had, in fact, committed a tort against him.
11. In Arab Monetary Fund v Hashim (No. 5) [1992] 2 All ER 911, Hoffman J. described Bankers Trust as an application of the Norwich Pharmacal principle in aid of tracing claims. (Page 914J). He then sought to determine the limits of the Bankers Trust jurisdiction as follows:-
12. Lord Reid's statement of principle has been adopted as part of the procedural law of Jersey. In IBL Limited v Planet Financial and Legal Services Limited [1990] JLR 294, the Royal Court considered that the principle applied equally to information aimed at establishing what form of action the plaintiff could bring, as it did to information concerning the identity of the alleged wrongdoer.
13. In Grupo Torras SA v Royal Bank of Scotland Plc [1994] JLR 41 Bailhache, Deputy Bailiff said this:-
Proceedings in the Royal Court
14. In the Royal Court, the appellants argued that the Norwich Pharmacal jurisdiction was confined to giving discovery for the purpose of identifying the wrongdoer and that, since the identity of the alleged wrongdoer in this case is known, the Royal Court had no power to grant relief on the Norwich Pharmacal principle. They contended that what the respondents were attempting fell within the Bankers Trust jurisdiction, but that the respondents had not produced sufficient evidence that traceable proceeds of the frauds had been paid into the appellants' accounts at the banks in Jersey. Even if the Royal Court had the power to order discovery, the appellants submitted, it should exercise its discretion not to order disclosure.
15. The Royal Court opened its consideration of the relevant law by quoting Lord Reid's statement of principle. Applying what it determined to be the applicable law to the facts of this case, the Court said this:-
16. The Royal Court declined to exercise its discretion not to order disclosure, on the view that
The Appellants' Grounds of Appeal and Contentions
17. The appellants' first ground of appeal is in these terms:-
"That the learned Deputy Bailiff erred in law when he held that the First and Second Respondents or each of them had satisfied the conditions necessary to invoke the discretion of the Court to order the disclosure they seek. In particular the Judge erred in holding that mere suspicion that proceeds from the alleged frauds against the Second Respondent have passed to accounts in Switzerland and from there may have passed to accounts of the Third to Seventh Respondents in Jersey, where the evidence is a matter of inference and the First and Second Respondents do not have the necessary paper trail to prove that some (that is to say, any) of the proceeds of the alleged frauds are now to be found in the said accounts in Jersey, is sufficient to justify the Disclosure Order: Judgment, paragraphs 6 and 28."
18. In their written Contentions in support of that ground, the appellants point to the fact that, in the course of its Judgment, the Royal Court expresses the view that the Norwich Pharmacal and Bankers Trust jurisdictions overlap to a very considerable extent and that the latter has, in practice, been almost entirely subsumed by the former. The appellants contend that the two jurisdictions are separate and distinct, serving different functions. Norwich Pharmacal, they submit, "is essentially concerned with the practicalities of getting litigation started, whereas Bankers Trust is concerned with ensuring it has a substantive ending." Consequently, argue the appellants, the Royal Court was wrong to order disclosure because (a) the Norwich Pharmacal jurisdiction does not provide a legal basis for the type of disclosure ordered and (b) the evidence is "insufficiently strong to warrant" disclosure under the Bankers Trust jurisdiction. The appellants call this "the Disclosure Ground".
19. The appellants' second ground of appeal is to the effect that, even if the Royal Court had power to order disclosure, it erred in the exercise of its discretion in doing so. This is referred to as "the Discretion Ground". Finally, they say, the Federal Republic has no sufficient interest to bring these proceedings under Jersey law, and that disclosure should have been refused for that reason. This is called "the Proper Party Ground".
The Respondents' Contentions
20. In addressing the Disclosure Ground, the respondents contend that the Royal Court was satisfied "that there is prima facie evidence" of the passage to Switzerland and Jersey of the Municipality's allegedly stolen funds. "It just so happens" they say, "that some of the evidence is from inference." The respondents draw support for that argument from what they claim is said at paragraph 6 of the Judgment:-
21. Turning to the Discretion Ground, the respondents argue that the question at issue is whether, in all the circumstances, an order in the terms sought is a necessary and proportionate response to what they describe as "the plaintiff's conundrum". They submit that it is.
22. Finally, the respondents argue that the Proper Party Ground is misconceived, because it proceeds on an assumption that the question of the Federal Republic's participation in these proceedings is only a question of Jersey procedural law. The issue, they say, is a one of comity and should be determined by permitting the Federal Republic to be a plaintiff.
Discussion
The Disclosure Ground
23. If the respondents were well-founded in their submissions to the effect that the Royal Court was satisfied that there is prima facie evidence that the allegedly stolen funds were moved from Switzerland to Jersey, it would go a long way to defeating the appellant's challenge to the Royal Court's decision on the Disclosure Ground. We agree with the respondents that it would be immaterial if the Royal Court determined that there was such evidence as a matter of inference. It is commonplace in the courts to decide questions of fact by drawing inferences from other facts.
24. As we read its judgment, however, the Royal Court did not express itself satisfied that there was such prima facie evidence. Nowhere does it say, as the respondents claim, "it is matter of inference ... ... [t]hat some of the proceeds of the frauds are now to be found in the accounts of the companies with the banks in Jersey". The words used are these:-
25. We read that passage to mean that the evidence is to the effect:-
(i) that Mr Maluf and others did commit the frauds,
(ii) that the Municipality has been defrauded of large sums as a result,
(iii) that a substantial proportion of the proceeds was paid to Switzerland, but only
(iv) that some of the proceeds may have found their way to Jersey.
In our view, that meaning is plain, having regard not only to the words used in Paragraph 6, but also to the Royal Court's observation, at paragraph 28 of the Judgment, that there is that funds were moved from Switzerland to the accounts of the companies in Jersey, to justify the order sought. It is, therefore, necessary for us to consider whether the Royal Court applied the correct test in determining whether or not it had power to order disclosure, in the circumstances of this case.
26. The appellants are correct to say that, in the Royal Court's Judgment, it makes the observation that It is clear to us, however, that its decision does not turn on those observations. Instead, the Royal Court determined the question that it had to decide by applying Lord Reid's statement of principle to the facts of the case. It is convenient to repeat it here:-
27. It is instructive to notice that Lord Reid does not enunciate the principle in terms of the rights of the person who is seeking disclosure. Instead he points to a duty owed to that person by the person who holds the information. That duty is to assist the , and it arises because the person who holds the information has come by it in the course of, albeit unwittingly, facilitating the wrong. It is performed by giving . The particular information that was sought in Norwich Pharmacal was the identity of the wrongdoer, and it is to be expected that the principle would be expressed by reference to the facts of the case under consideration. But, in our opinion, the scope of the principle is not extended if the purpose of the disclosure which is sought in any particular case is, for example, to determine the location of embezzled funds or the methodology of the fraud, rather than the identity of the wrongdoer. In our judgment, where disclosure is sought from a defendant who is alleged to have become innocently mixed up in wrongdoing, the determinative question in any particular case is whether justice requires discovery to be ordered.
29. In the modern English cases, the requirement to meet the demands of justice is frequently cited as good reason to order discovery, whether or not Norwich Pharmacal is expressly referred to. In A and Another v. C and Others [1981] Q.B. 956, for example, the plaintiff sought discovery as ancillary to a Mareva injunction. In granting the relief sought, Robert Goff J. said this:-
30. In the course of his judgment, Robert Goff J. referred to London and County Securities Ltd. v. Caplan [1978] (unreported). In that case, the plaintiffs alleged that the defendant had defrauded them of about £5 million. Templeman J. made an order restraining the defendant from disposing or otherwise dealing with his assets, and in addition ordered that a certain bank (not a party to the action) should produce to the plaintiffs all documents relating to any account or accounts maintained by or on behalf of the defendant. The disclosure order was made with the purpose of enabling the plaintiffs to trace property acquired by the defendant, and so to take steps to seize that property if it derived from their assets. The action was described by Templeman J. in this way:-
31. In Bankers Trust, Lord Denning said this:-
32. In Arab Monetary Fund v Hashim (No. 5) [1992] 2 All ER 911, Hoffman J. conducted an illuminating broad review of what he described as , of which Norwich Pharmacal and Bankers Trust were a part. He said:-
33. When Lord Reid's statement of principle first came to be invoked in Jersey, it was the underlying policy imperative identified in paragraph 28 above that seems to have persuaded the court to adopt and apply it. In In re Lucas [1981] J.J. 83, the Royal Court ordered discovery of documents by a person not a party to an action of defamation in which the defendant was pleading justification. After quoting Lord Reid's dictum, Crill, Deputy Bailiff continued:-
34. In IBL Limited v Planet Financial and Legal Services Limited, supra, the Royal Court conducted a full review of the English authorities. After rejecting a submission to the effect that the order for disclosure, that had been granted and which the defendants sought to have reversed, extended the Norwich Pharmacal principle, Tomes, Deputy Bailiff observed
35. Finally, in Grupo Torras SA v Royal Bank of Scotland Plc, supra, as we have seen, the Royal Court applied Lord Reid's statement of principle, which it described as "the Norwich Pharmacal principle" (per Bailhache, Deputy Bailiff, page 45). The defendants argued that Norwich Pharmacal relief "was a very strong remedy which cut across the duty of confidentiality owed by banks to their customers and should not be given lightly". The Royal Court expressed agreement with that proposition, but continued,
36. The approach which the appellants invite us to take in determining whether or not the Royal Court had jurisdiction to grant the order sought in this case is to consider whether the disclosure which is sought here can be said to fall within the scope of the "type of case in which Norwich Pharmacal relief is available". (Our emphasis; see, in particular, Appellants' Contentions, paragraph 85). They do that, principally, by reference to the English cases.
37. We reject the approach suggested by the appellants. It does not appear to us that the courts of England and Wales have restricted the application of the Norwich Pharmacal jurisdiction to cases in which the facts are similar. We note the words of Lord Woolf CJ, in Ashworth Hospital Authority v. MGN Ltd. [2002] 1 WLR 2033, at page 2049:-
38. In any event, whilst the cases in which the Norwich Pharmacal jurisdiction has been developed in England and Wales provide useful guidance on how Lord Reid's statement of principle may be applied, the courts of Jersey are in no sense bound by the scope of the jurisdiction that may have been delineated de facto by the circumstances of these cases. Nor are these courts constrained by the limits which may be placed on the application of the principle in the different social and economic conditions that may prevail from time to time in England and Wales. (See, generally, State of Qatar v. Al Thani [1999] JLR 118). They will have regard to, amongst other things, the policy considerations which shape the law of Jersey and the social and economic context in which it operates.
39. We are conscious that, as the Court of Appeal of Jersey remarked in Durant and Others v Attorney General and Another [2006] JCA 039, Although these remarks were made in the context of an action that concerned the provision of assistance by the authorities in Jersey to foreign prosecutors, they have relevance in the sphere of civil litigation, where the courts are conscious that Jersey's reputation as a major financial centre might suffer if it were not willing to assist victims of wrongdoing to obtain redress.
40. Against that background, in applying Lord Reid's statement of principle to the facts of this case, the Royal Court had to be satisfied (i) that the respondents were the victims of wrongdoing and (ii) that the banks had become mixed up in the wrongdoing.
41. On the material before it, the Royal Court found that, prima facie, the Municipality is the victim of a fraud perpetrated by Mr Maluf and, therefore, that it qualifies as a "person wronged " as defined by Lord Reid. These findings are not challenged by the appellants. As we have seen, however, they do take issue with the Royal Court's conclusion In their written Contentions, the appellants argue that In the hearing before us, Advocate Steenson, for the appellants, submitted that there must be at least prima facie evidence that the defendant has been mixed up in the wrongdoing.
42. The appellants' challenge to the Royal Court's approach raises the general question - in this type of application, to what standard must the court be satisfied that a defendant has become mixed up in alleged wrongdoing, so that it owes the plaintiff a duty of disclosure? Is it sufficient if the plaintiff persuades the court that it is, for example, just possible that the defendant has become mixed up in the wrongdoing, or, looking towards the other end of the range, does he have to make out a seriously arguable case that it has been involved? For convenience, we shall refer to the general question as "the threshold issue".
43. Counsel were unable to point us to any authority in which the threshold issue has been addressed directly. The cases to which we have referred so far in this Judgment give little guidance on the standard to which a court has to be satisfied that an innocent information holder has been involved in wrongdoing, so as to give rise to duty to make disclosure. In Norwich Pharmacal, it seems that there was clear and unchallenged evidence of wrongdoing and of the innocent defendants' involvement in that wrongdoing. What their Lordships had to say about these aspects of the case, therefore, has to be read with that in mind. Lord Reid said, (page 174E-F) Lord Morris of Borth-y-Gest looked at the requirement of involvement more generally, and said, (Pages 178H to 179A) Of the defendants in Norwich Pharmacal, Lord Morris said, (Page 181C) Viscount Dilhorne considered the defendants' position (at page 188B to C), and concluded Lord Cross of Chelsea gave general guidance about what the court should do in future when deciding whether or not to make a disclosure order, saying, (Page 199F to G) Finally, Lord Kilbrandon suggested that ought to be limited in the exercise of judicial discretion to (Page 205A to 206B).
44. The Bankers Trust case concerned a fraud, allegedly perpetrated by two named individuals who, it was said, presented forged cheques and received $500,000 each. Lord Denning describes them as "rogues", explaining, His Lordship remarked that it is a to order a bank to disclose the state of its customer's account, as was being sought in that case, and continued, Whatever may mean, it seems to us to indicate a lower threshold than a requirement that there be prima facie evidence that the money in the bank is the plaintiff's money.
45. In the absence of clear assistance from the authorities in which Lord Reid's statement of principle has been applied, we must decide for ourselves the standard to which the Royal Court should be satisfied that an innocent third party has become mixed up in alleged wrongdoing, so that he owes the person wronged a duty of disclosure. Even where, as here, the plaintiff can adduce prima facie evidence of wrongdoing, it may be very difficult for him to bring prima facie evidence that an innocent third party, such as a bank, has been unwittingly mixed up in the wrongdoing. In some cases it will be impossible. It is to be expected that the wrongdoer will have taken steps to conceal the fact that the third party has facilitated the wrongdoing. The innocent bank, by definition, will not have known. Having regard to these considerations, should the threshold in respect of involvement be set lower than a requirement that prima facie evidence be adduced?
46. In our view, in attempting to answer that question, it is helpful to look at the position of the third party who is convened as the defendant in an action for disclosure of this kind. He is brought to court because the person wronged believes that he may have information about the wrongdoer. If it is confidential information, the duty of confidence is likely to be owed, directly or indirectly, to the wrongdoer. It is likely that the third party has become mixed up because the wrongdoer, directly or indirectly, has chosen to involve him in order to facilitate the wrongdoing. His innocence is acknowledged by fixing responsibility for his costs on the person wronged. Disclosure will only be ordered if there is no other source of information that will assist the person wronged. It does not seem to us unjust that a duty to disclose should arise where the court is satisfied that there is a reasonable suspicion that the third party has been mixed up in the wrongdoing.
47. Some support for the view that something less than prima facie evidence will suffice to entitle the court to order disclosure can be gleaned from a number of English cases. In Mediterrania Raffineria Siciliana Petroli S.P.A. v. Marbanaft G.M.B.H. (unreported), 1 December 1978; Court of Appeal (Civil Division) Transcript No. 816 of 1978, C.A., Mocatta J. granted an injunction restraining the disposal of the proceeds of sale of a cargo of oil, delivery of which was alleged to have been obtained without the production of bills of lading. The Court also made an order requiring directors and an employee of the defendant company to make full disclosure of certain specified facts on affidavit, and directed that one of them should file an affidavit of documents. The order was upheld by the Court of Appeal. The case was decided some five years after Norwich Pharmacal. Lord Denning, M.R. presided in the Court of Appeal, as he had done in Norwich Pharmacal, and one of the other Court of Appeal judges was Templeman LJ., who, as Sydney Templeman QC, represented the defendants in Norwich Pharmacal. No mention is made of Norwich Pharmacal in the Judgments, and Lord Justice Templeman notes that "orders of this sort (i.e. the one at issue in the case) were made long before the recent orders for discovery". It is clear, therefore, that the Court was not considering Lord Reid's statement of principle. Nonetheless, it is of interest that the Court of Appeal felt able to uphold the order on the factual basis that (Our emphasis). The rationale for upholding what was described as "a strong order" was that a court of equity In a case of the type before us, where the court is being asked to exercise its powers to assist the victim of a fraud to recover what has been taken from him, or its equivalent in damages, there is, in our opinion, no good reason why it should require a more exacting factual basis on which to order disclosure than does an English court exercising its equitable jurisdiction to protect and preserve a trust fund.
48. In Norwich Pharmacal, Lord Kilbrandon conducted a review of procedures in other jurisdictions, in order to discover what general principles were applied there in the determination of applications for discovery from third parties. Borrowing from South African jurisprudence, his Lordship said this:-
49. Finally, in Carlton v. VCI [2003] FSR 37, the plaintiffs sought discovery to enable them to determine whether or not they had been the victims of wrongdoing. What they lacked, and what they sought, was prima facie evidence of such wrongdoing. Their discovery action was based on what Jacob J. described as that an actionable wrong had been committed against them. They contended that they were unable to bring proceedings without the information sought. The judge agreed, and granted the order.
50. Both Lord Kilbrandon and Jacob J. clearly thought that something less than prima facie evidence of wrongdoing was sufficient to entitle the Court to order disclosure. We can see no reason to require a higher threshold in respect of the question whether or not the defendant is a person who has become innocently mixed up in the wrongdoing.
51. In this case, the Royal Court was clearly satisfied that there is a reasonable suspicion that the banks were innocently mixed up in Mr Maluf's alleged wrongdoing. On that basis, in our judgment, it was entitled to hold that the banks have a duty to make disclosure in order to assist the respondents, and that it had the power to order such disclosure. It made the order on the view that it was necessary, in order to enable the Municipality to locate and preserve traceable funds and to decide whether it has grounds to bring actions against the companies or others in Jersey or elsewhere to recover the funds, or their equivalent in damages. Adopting the test laid down in Arab Monetary Fund, the Royal Court concluded that there is a real prospect that the information from the banks will assist in that process. That finding is not challenged. Consequently, we reject the appellants' first ground of appeal.
The Discretion Ground
52. In the Royal Court, the appellants argued that, if it had the power to grant the disclosure sought, it should decline to do so in the exercise of its discretion. The Royal Court exercised its discretion in favour of ordering disclosure. The appellants have not engaged in the process that would be necessary to persuade us that the Royal Court erred in the exercise of its discretion. They do not contend, for example, that no reasonable tribunal in the Royal Court's position would have exercised its discretion in the way that the Royal Court did. It is not suggested on behalf of the appellants that the Royal Court took into account irrelevant considerations or failed to take account of relevant and material considerations which ought to have been taken into account. In the absence of anything that would entitle us to interfere with the exercise of its discretion by the Royal Court, we reject the appellants' second ground of appeal.
The Proper Party Ground
53. We turn, finally, to the Proper Party Ground. The Royal Court said this:-
54. Referring to that passage, the appellants now say that the "Deputy Bailiff erred in law when he held that whether not the Federal Republic of Brazil has sufficient interest to bring these proceedings in Jersey is a question of the law of Brazil and not of the law of Jersey". (Notice of Appeal, paragraph 3). We can find no such determination in the Royal Court's Judgment. The Royal Court's observation was directed to civil proceedings , not to these proceedings for discovery. The Court was not asked to determine the question whether or not the Federal Republic has sufficient interest to bring these proceedings, and it did not do so. The Royal Court fell into no error. The appellants' Proper Party Ground is not properly a ground of appeal - it is a new point and it comes too late. Accordingly, we reject the appellants' third ground of appeal.
Disposal
55. If follows from what we have said above that the appeal is dismissed.
Citation of Authority
56. We add some words to express concerns that we have about the form, as distinct from the substance, of the parties' submissions in this case, both at first instance and on appeal. A number of English authorities were produced and relied on by the parties. The citations include reports in the All England Law Reports of cases which are reported in the official Law Reports. The official reports, published by the Incorporated Council of Law Reporting for England and Wales, are the most authoritative of all series. They contain a summary of the arguments, and they are sent to the judges and counsel concerned for approval prior to publication. Practitioners should note that, where a case has been reported in the official Law Reports, the Royal Court and the Court of Appeal will expect it to be cited from that source. Other series of reports should be used only when a case is not reported in the official Law Reports.