Jersey Unreported Judgments
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URL: http://www.bailii.org/je/cases/UR/2015/2015_217.html
Cite as: [2015] JRC 217
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> ENRC -v- Zamin Ferrous Limited [2015] JRC 217 (27 October 2015) URL: http://www.bailii.org/je/cases/UR/2015/2015_217.html Cite as: [2015] JRC 217 |
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Companies - disclosure of information which is subject to a freezing order sought by the plaintiff.
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Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Kerley and Thomas |
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Between |
ENRC NV |
Plaintiff |
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And |
Zamin Ferrous Limited |
Defendant |
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Advocate J. M. P. Gleeson for the Plaintiff.
Advocate N. M. Sanders for the Defendant.
judgment
the commissioner:
1. The plaintiff seeks disclosure of further information in relation to the assets of the defendant which are the subject of a worldwide freezing order granted by the Deputy Bailiff ex parte on 22nd July, 2015.
2. The plaintiff ("ENRC") is part of the Eurasian Resources Group which holds mining and energy interests worldwide and which is ultimately owned by a consortium including the government of Kazakhstan. According to the information provided to us the ENRC Group comprises a substantial undertaking with over 78,000 employees in 11 countries with a net asset value in 2013 of US$8.9 billion.
3. The defendant ("Zamin") forms part of the Devi group of companies which is ultimately owned by a trust of which Mr Pramod Agarwal is one of the beneficiaries. It seems fair to say that he is the main force behind the group which is involved in similar activities to that of ENRC, although it now faces serious liquidity problems. At the head of the group is Devi Limited, a Cayman incorporated company ("Devi"). It wholly owns Zamin, a Jersey incorporated company, which has four direct subsidiaries under which lie a number of further subsidiaries. The group's main assets comprise greenfield iron ore mining concessions in Uruguay (known as "the Valentines project") and Brazil (known as "the Greystone Project"). The price for iron ore has recently fallen from US$130 per ton to US$50 a ton.
4. ENRC and a subsidiary of Zamin, namely Ardila Investments NV ("Ardila") had been co-owners in another Brazilian mining project held through a company known as Bahia Minerals BV ("Bahia") and by a share purchase agreement dated 1st September, 2010, Ardila sold its interest in Bahia to ENRC for an initial and thereafter staged payments by reference to various milestones. Zamin was a party to that agreement by way of guarantor.
5. A final staged payment of US$335M was due on Sunday 21st September, 2014, if an installation licence (known as the "Port Installation Licence") had been issued for a port connected to the project, by which, in conjunction with a railroad, the output of the mine could be transported away for export.
6. The Port Installation Licence was issued late on Friday 19th September, 2014, the last working day before Sunday 21st September, 2014, in circumstances which ENRC claims were both unlawful and in breach of a Brazilian court order and environmental legislation. Accordingly, it refused to pay the final staged payment.
7. On 30th June, 2014, Ardila commenced proceedings against ENRC in the English High Court, claiming the final staged payment in the now reduced sum of US$285M (reduced from US$335M for reasons not relevant to these proceedings). ENRC is defending these proceedings on the grounds set out above and has counter claimed for the repayment of a loan it had made to Ardila on 14th March, 2013, in the sum of US$65M (made in connection with an amendment to the share purchase agreement) joining in Zamin as guarantor.
8. On 15th December, 2014, ENRC applied for summary judgment on its counter claim. That application was heard (amongst other matters) before Simon J, at a hearing on 27th - 29th April, 2015. The issue was whether Ardila was entitled to set off its admitted liability under this loan (guaranteed by Zamin) against the much greater sum that it was claiming from ENRC under the share purchase agreement.
9. Simon J issued his judgment in draft on 5th June, 2015. He found that under the relevant provisions, there was no right of set off. His judgment was handed down on 11th June, 2015, and by the terms of a consequential order made on 26th June, 2015, he ordered Ardila and Zamin jointly and severally to pay the sum of US$65M together with interest on 16th July, 2015, into the client account maintained by ENRC's London lawyers, under their undertaking to hold the same pending further order of the court. That undertaking was given so that Ardila and Zamin had comfort that should they succeed in their claims against ENRC, the sums they had paid in respect of the judgment debt would remain available to satisfy any sum that may be awarded to them at the conclusion of the English proceedings. The final hearing of the English proceedings is due to take place in February, 2016. The judgment has not been satisfied.
10. Leave to appeal Simon J's judgment was refused by him on 26th June, 2015. An application to the Court of Appeal for leave to appeal and for a stay of execution was filed by Ardila with the English Court of Appeal on 16th July, 2015, (apparently the last day for so doing) and remains pending.
11. On 22nd July, 2015, ENRC issued proceedings against Zamin in Jersey and obtained ex parte:-
(i) An injunction freezing Zamin's assets worldwide up to US$70M.
(ii) An order for Zamin to disclose all of its assets worldwide over £10,000 in value.
(iii) An order that a director or duly authorised representative of Zamin answer a number of questions set out in a schedule.
12. The questions in the schedule sought to inform ENRC of the Devi group, its structure, place of incorporation of its constituent companies, names of directors and so on but it included the following questions in relation to the Valentines project:-
(i) whether there has been any relevant Change of Control of any of the companies with an interest in the Valentines Project since it was acquired;
(ii) if a sale of an interest in the Valentines Project has been or will be agreed, the nature, extent and/or amount of the proceeds of sale and how the defendant intends to use the proceeds of such sale;
(iii) if a financing of the Valentines Project has been or will be agreed, how does the defendant intend to use the proceeds of such financing;
(iv) whether the defendant's interest in the Valentines Project has been or will be charged, pledged, mortgaged, assigned or otherwise appropriated to the payment of any debt owned by the defendant since it was acquired; and
(v) whether the defendant has entered into any loan arrangements in relation to the Valentines Project and, if so, the details of those loans, security in respect of the loans.
13. "Change of Control" in relation to a company ("the Target") was defined as meaning:-
(i) the acquisition by a person of a legal or beneficial interest in more than 50% of the total issued share capital of the Target;
(ii) the sale of, or grant of a right in respect of, the share capital of Target to a person who, as a result of that grant or sale, is entitled to obtain or acquire a legal or beneficial interest in more than 50% of the total issued share capital of the Target;
(iii) the issue of new shares in the Target to any person not previously holding more than 50% of the shares in the Target; and/or
(iv) any change to the Memorandum or Articles of Association of the Target so as to alter the voting rights of the members of the Target.
14. In his affidavit of 31st July, 2015, in support of the disclosure made by Zamin, Mr Agarwal provided this information in relation to the Valentines Project: -
(i) In the context of a change of control of any of the companies within the Valentines Project, that "Aurum Mining" had been granted an option by way of an option and investment agreement dated 28th May, 2015, whereby it could elect to purchase 100% of the Valentines Project for a value of US$250M. In his fifth witness statement dated 8th September, 2015, signed for the purposes of the English proceedings, he stated that the consideration payable by Aurum Mining was "up to" US$250M. He also stated that an option payment of US$2.25M had been paid, allowing Aurum Mining to exercise the option now, although he said it was not anticipated that it would be exercised at any time in the immediate future.
(ii) In the context of a sale of an interest in the Valentines Project and how it intended to use the proceeds, a subscription and shareholders' agreement had been entered into with Gerald Metals SA ("Gerald") on the 9th June, 2015, under which 5% of the company that heads the Valentines Project had been transferred to Gerald with a potential of a total of 15% being transferred. He said the transfer was part of a larger settlement arrangement, the terms of which were highly sensitive, whereby Gerald ceased its enforcement action with respect to certain amounts owed to it by members of the Devi group, including the ultimate parent, Devi.
15. By its summons of 20th August, 2015, ENRC now seeks disclosure of these two agreements together with:-
(i) Contemporaneous correspondence demonstrating how the agreements came to be negotiated, drafted and executed; and
(ii) Information as to the date on which the negotiations commenced, the date the agreements were finalised, and the date upon which the agreements were executed. In relation to the Aurum agreement, it seeks information in relation to the precise nature of the consideration given by Aurum for the Aurum agreement and upon whose instructions the directors of Zamin entered into the Aurum agreement. In relation to the Gerald agreement, it seeks information as to the date on which the transfer of the shares was formally registered and the precise nature of the consideration given for the transfer of the shares and upon whose instructions Zamin entered into the Gerald agreement.
16. Advocate Gleeson submitted that Zamin had not answered the questions in the schedule in a full and frank manner. It appeared already to have dissipated its assets to a certain extent and ENRC reasonably believed that there continues to be a real risk that it will further attempt to dissipate assets in order to put itself in a position that it cannot satisfy the judgment debt and/or costs order. That was illustrated, he said, by the procedural history of the English proceedings giving rise to the judgment and the conduct of Zamin and related parties that had been characterised by failures to meet case management deadlines, procedural and tactical games, unreliability, prevarication, lack of openness and delaying tactics.
17. We would summarise the main grounds upon which he made those submissions as follows:-
(i) On 23rd January, 2015, (after ENRC had issued its application for summary judgment) Ardila, which is a Curacao company, obtained an attachment (a form of security) from the Curacao court over its own debt of US$65M to ENRC without notice to ENRC and which would de facto give Ardila a right of set off whatever the outcome of the English application. On 11th June, 2015, Simon J granted ENRC an anti-suit injunction, holding that:-
Later, Simon J went on to award ENRC its costs on an indemnity basis, saying this:-
(ii) Ardila had pleaded in its amended reply that neither it nor Zamin had any interaction with the Brazilian licensing authority (IBAMA) in the issuing of the Port Installation Licence and only had a general understanding of how the licensing process worked. It had obtained a copy of the Port Installation Licence, it said, from the office of the Governor of Bahia but did not know how that office had obtained a copy. However, in response to an order for further information made by the English High Court, apparently after repeated failures to respond, Ardila and Zamin disclosed that they did interact with IBAMA by instructing an agent to liaise and meet with it and that Mr Agarwal himself was closely involved in the licensing process, visiting Brazil and meeting with the Governor, with whom he is said to have had a longstanding and occasional "personal" relationship. They disclosed an email received at the time which shows that they did know the way in which the Port Installation Licence was provided to the Governor's office before being forwarded on to them.
(iii) At a hearing on 8th July, 2015, Leggatt J had expressed his disapproval of Ardila's and Zamin's conduct, describing the approach of their solicitors as "an approach which, whilst it certainly does not justify the description "dishonest", cannot be regarded as full and frank." He went on to infer that the solicitors "wilfully stuck their heads in the sand" and to say how unreliable their statements had been.
(iv) The circumstances in which it is alleged by ENRC that the Port Installation Licence was granted, which we will not set out here, were described by Leggatt J at a hearing on 20th February, 2015, in the context of an application by ENRC for further disclosure, in this way:-
(v) The disclosure made by Mr Agarwal in relation to the Aurum agreement does not give Aurum Mining's full name, so that it cannot be identified, the identity of the party within the Devi group that entered into the agreement with Aurum Mining, the law governing the agreement (and therefore the situs of the chose in action it creates) and the payment mechanics. The option fee of US$2.25M was not disclosed by Zamin in response to the freezing order and there is no information as to where these sums have gone.
(vi) In terms of the Gerald agreement, minimal details have been supplied beyond the fact that 5% had been transferred up to a potential of 15% for no financial consideration but forbearance to sue other entities in the Devi Group. ENRC does not know the terms upon which the holding might increase from 5% to 15% beyond certain dates, what consideration might be payable for such an increase and if so, where and how the terms of the Gerald agreement sit with the apparently contradictory terms of the Aurum agreement.
(vii) The timing of the two agreements, coming as they did between the hearing and the draft judgment in the case of the Aurum agreement and between the draft judgment and the judgment being handed down in the case of the Gerald agreement, is suspicious, especially when considering that both agreements were concerned with the alienation of Zamin's major indirect asset.
(viii) In dismissing Ardila's application to strike out part of ENRC's pleaded case, the Port Installation Licence had been issued unlawfully, Simon J said this at paragraph 80:-
18. Advocate Sanders described the orders sought as invasive and draconian. He resisted the same for the following reasons:-
(i) Whilst ENRC has the benefit of the judgment in its favour:-
(a) Ardila's claim in the English proceedings amounts to US$285M, some US$220M in excess of the judgment;
(b) The judgment is subject to appeal and an application for a stay of execution both of which are currently pending before the English Court of Appeal;
(c) The main action is set for trial in February 2016; and
(d) ENRC's defence to the main action is weak.
(ii) No enforcement steps have been or are being taken by ENRC in Jersey or elsewhere and, accordingly, the injunction is merely stand-alone relief not in support of any substantive proceedings or relief being sought in Jersey or elsewhere;
(iii) It is recognised in the English proceedings that any recovery following enforcement of the Judgment would be held by ENRC's English solicitors pending determination of Ardila's substantive claim;
(iv) The documents that are sought in Jersey are not required for the purpose of policing the injunction - ENRC has already received disclosure of Zamin's assets as required by the terms of the injunction;
(v) The Deputy Bailiff refused to grant an order for disclosure of documents (including in particular commercially sensitive ones) when signing the Order of Justice;
(vi) The summons is a fishing expedition by ENRC - it is seeking disclosure of the agreements and the correspondence which are highly commercially sensitive by whatever means it can: it is also pursuing in the English proceedings unmeritorious specific disclosure requests for the agreement and the correspondence;
(vii) ENRC cannot be trusted with regard to the use it might seek to put documents it receives - it is subject to applications for breach of confidence and committal within the English proceedings;
(viii) The correspondence is entirely historic - correspondence as to how an agreement relating to assets of Zamin came about cannot assist in policing the injunction or in identifying assets and their location for the purposes of enforcement; and
(ix) ENRC not only have had disclosure of the broad nature of the project to which the agreements and correspondence relate but were also provided with information concerning the project in 2011 and signed a non-disclosure agreement in respect of information ENRC received when considering whether to invest in the project - they are therefore already fully aware of its nature.
Expanding on (vii) above, in essence it is alleged by Zamin that a former agent of it made a serious demand for money in return for not disclosing confidential documents to ENRC, which he claimed would cause Ardila to lose its claim in the English proceedings. Those demands, it is said, amounted to blackmail. In parallel, ENRC threatened that unless Ardila paid US$50M in settlement of its US$220M claim, ENRC would approach Zamin's bankers and creditors at any time to buy Zamin's debts and bankrupt Zamin. It also threatened to take over the Zamin Group. It is asserted by Zamin that these threats went beyond what is legitimate in bona fide settlement discussions. In addition, Zamin is seeking injunctive relief against the agent, ENRC and its solicitors, alleging breaches of confidentiality and/or misuse of private information and to seek delivery up of electronic recordings that the agent had secretly made of conversations with Mr Agarwal and a colleague of his without their knowledge or consent. It is alleged this was a covert attempt to get Mr Agarwal to admit on tape that he was knowingly involved in bribery.
19. Zamin attribute the failure to meet case management deadlines to it being impecunious as a result of ENRC's failure to pay the US$285M due to it under the share purchase agreement. There is nothing tactical about the extensions sought as on the contrary Ardila and Zamin want to get to trial as quickly as possible and it is ENRC that is seeking to stifle the claim by opposing a stay pending termination of appeal, seeking the imposition of conditions on any permission to appeal and applying for further security for costs before the claim can get to trial. Advocate Sanders submitted that the context of ENRC's actions in the English proceedings must be taken into account.
20. The approach of the Court to the granting of injunctions and disclosure orders post judgment is well established. Quoting from the judgment of Birt, then Deputy Bailiff, in Goldtron Limited v Most Investment Limited [2002] JLR 424:-
21. As is made clear in Motorola Credit Corp v Uzan [2002] CP Rep 69 and Grupo Torras S.A. v Al-Sabah, English C.A. February 16th 1994, unreported (cited with approval in Dalemont Limited v Senatorov [2012] 1 JLR 168), disclosure orders are part and parcel of worldwide freezing orders. Without disclosure, the freezing orders would be rendered a relatively toothless procedure. In Africa Edge S.a.r.l v Incat [2008] JRC 175 the Court adopted the principles set out in the judgment of Coleman J in Gidrxsime Shipping Co Ltd v Tantomar-Transportes Maritimos Lda [1994] 4 All ER 507. Quoting from paragraph 8 of the Africa Edge judgment:-
22. Those principles have been followed in a number of cases including Leeds United Association Football Club Limited v Phone-In Trading Post Limited [2011] JLR Note 36 and Dalemont and Jomair Leasing Ltd v Hourigan [2011] JRC 042.
23. There is no case law on the extent to which disclosure will be ordered, but there are a number of examples of the English court making orders for further detailed disclosure (see JSC BTA Bank v Mukhtar Ablyazov and 16 Other Defendants [2011] EWHC 2664 (Comm)) and even placing the assets of the defendant into receivership (see JSC BTA Bank v Ablyazov (No 3) [2010] EWCA Civ 1141). As Clark J said in the former case at paragraph 95 "The essential basis for making the order is to ensure that the freezing order is effective and is not sidestepped."
24. In JSC BTA Bank v Solodchenko and others (No 3) [2011] EWHC 2163 (Ch), the claimant bank, the alleged victim of a major international fraud, committed by a number of conspirators, including the defendant, who had been committed for contempt and had disappeared from the jurisdiction, sought disclosure from his solicitors. Disclosure was ordered on the basis that it was just and convenient to do so in order to ensure the effectiveness of the earlier order (see paragraph 26).
25. As Advocate Sanders pointed out, the JSC BTA Bank decisions involved allegations of fraud or misappropriation of funds, proprietary tracing claims, breaches of existing orders and contempt which he says bear no similarity to the facts of the present case. Even so, he did not question the power of the Court to make the orders sought by ENRC.
26. In our view, the Court has a wide discretion in a post judgement case to order further disclosure and ordinarily it is just and convenient to do so in order to effectively police the freezing order and so that the judgment creditor has all the information he needs to execute the judgment anywhere in the world; the whole for the purpose of ensuring that the judgment obtained is not rendered nugatory.
27. Whilst it is correct, as Advocate Sanders pointed out, that the injunction is limited to US$70M or its sterling equivalent, and that Zamin is free to deal with its assets over and above that sum as it wishes, that it is of little assistance to Zamin on the facts of this case. Both Mr Agarwal and the financial controller, Mr Lalit Pratap, confirmed the impecuniosity of the group as a whole. Ardila's only asset is the sums it is claiming from ENRC and Zamin, which sits at the head of the group (under Devi Limited) has two assets, namely the Valentines and Greystone projects which are illiquid. There must be considerable doubt as to the value of these projects. No value is attributed in the disclosure to the Greystone project (the subsidiary which sits above that project is described in the disclosure as having a net equity of US$2.09M). The subsidiary which sits above the Valentines project is disclosed as having a net equity of US$173M, but this is on the basis of its accounts. There is no valuation of the assets themselves and the statements of Mr Pratap and Agarwal show how the collapse in the iron ore price and the problems encountered with the Greystone project are such that no funding on the security of either of these assets is available.
28. Mr Agarwal in his third witness statement in the English proceedings dated 11th September, 2015, paints a very sombre picture of both his personal finances and the finances of the Devi Group as a whole: "This was previously a valuable entity but now I do not think it is at all." In paragraph 24(d) he says this:-
"Devi does not have any assets of significance other than (i) illiquid development assets, comprising of greenfield mining concessions which remain subject to the conducting of resource proving exercises (and therefore subject to the same liquidity issues as Valentines and Greystone none of which have been resource proven to the level of Valentines or Greystone and accordingly their worth is further impaired in the present market) or (ii) not otherwise unencumbered by a security package."
He places his net worth at minus US$16.5M.
29. In the light of this information, Zamin has not demonstrated that it has assets beyond US$70M which it is free to deal with. Accordingly, we must proceed on the basis that all of its assets are potentially subject to the terms of the worldwide freezing order.
30. It is the case that the worldwide freezing order has been made against Zamin and its "assets" which, whilst including the shares of its four direct subsidiary companies, does not extend to the assets of those subsidiary companies. In Lakatamia Shipping Co Ltd v Su and others [2014] EWCA Civ 636, the English Court of Appeal considered the interpretation of a restraint of a party's "assets" in the context of a freezing order (the standard provisions of which in England and Jersey are typically similar) holding that:-
31. Thus, the worldwide freezing order affects the shares owned by Zamin in its four direct subsidiaries but not the assets of those subsidiaries or the subsidiaries below them. However, Zamin is prevented from procuring that those subsidiaries make a disposition likely to result in such diminution.
32. The order requiring disclosure refers again to Zamin's "assets" which strictly speaking might entitle Zamin to simply list the shares it owns in its four direct subsidiaries but not the assets owned by those subsidiaries, to the extent that it has knowledge of those assets. The questions posed in the schedule extended beyond the four direct subsidiaries to "any of the companies with an interest in the Valentines Project" which is owned by a sub-subsidiary. The disclosure actually given by Zamin extended to all of the companies within the group below Zamin and thus to the real assets within that part of the group.
33. Advocate Sanders did not argue that for the purpose of the worldwide freezing order, disclosure should be limited to the shares in the four direct subsidiaries and not to the assets owned by them or their own subsidiaries. It would not in any event be possible to police the obligation of Zamin under the worldwide freezing order not to diminish the value of the shares it owns in those four direct subsidiaries, without information as to the assets of those subsidiaries and in reality, it must be information as to the assets within a corporate structure beneath a judgment debtor that a judgment creditor needs in order to execute the judgment anywhere in the world.
34. ENRC may have a historic knowledge of the Valentines Project through an involvement in 2011, but the existence of a very recent option enabling an unidentified third party to acquire the whole of that project "up to" US$250M on terms which are presently unknown or any other similar rights over such an asset is, we think, relevant to the policing of the world wide freezing order and the execution of any judgment. The same applies to a recent agreement, again on terms presently unknown, to transfer up to 15% of that asset to a third party. Conscious of the words of Coleman J in the Tantomar case quoted above, namely that a judgment creditor "should normally have all the information he needs to execute the judgment or award anywhere in the world" (our emphasis), in our view, it is reasonable for ENRC to seek disclosure of the full terms of those two agreements, affecting as they do the main asset within the group beneath Zamin.
35. The timing of these two agreements and the lack of clarity as to their terms and import, whilst not necessarily suspicious, enforces the need for disclosure. The Aurum agreement was entered into on 28th May, 2015, after the hearing before Simon J in respect of a debt which Ardila acknowledged was due under an agreement which expressly ruled out any right of set off. The Gerald agreement was entered into after the draft judgment had been handed down.
36. The proximity of the main hearing in February 2016 has no bearing on the policing of the worldwide freezing order. ENRC has a judgment which it is entitled to enforce and which the English court clearly assumed would be enforced. The possibility of Ardila succeeding in its claim for what is a greater amount has been covered by the undertaking that any sums paid on the judgment will be held by ENRC's legal advisors.
37. We do not think it is relevant that ENRC has not yet taken any enforcement steps, other than the obtaining of the worldwide freezing and disclosure orders in this jurisdiction; a logical first step as this is where Zamin is incorporated. There is no requirement of which we are aware that actual enforcement is a precursor to disclosure. The principles enunciated by Coleman J in the Tantomar case pre-suppose the provision of information before execution.
38. The existence of an application for leave to appeal the judgment and for a stay does not mean that the disclosure order should be watered down in any way. A similar argument was put forward and rejected by the English Court of Appeal in Grupo Torras, a pre-judgment case where jurisdiction was being challenged. In that case, the link between a Mareva injunction and a disclosure order was considered by Steyn LJ at page 4:-
39. If a Mareva injunction is granted, a disclosure order will therefore follow, although Steyn LJ emphasised that:-
40. It is difficult for the Court to form a view as to the merits of the cases being put forward in English proceedings and particularly the assertion by Zamin that ENRC's defence is weak. We can only note the comments of Leggatt J as to the apparently exceptional circumstances in which the Port Installation Licence was obtained and the words of Simon J on the strike-out application quoted above.
41. This is hard fought litigation in which both sides criticise the conduct of the other. It is not appropriate for us to comment on the conduct of parties in litigation before another court but we feel we can take note of the comments made by the judges in that court, namely Leggatt J and Simon J referred to above, and in particular the obtaining by Ardila of an attachment order in Curacao which Simon J describes as a "vexatious interference with the due process of the court".
42. Having taken into account all of the circumstances of this case and in particular the timing of the Aurum and Gerald agreements and the lack of information as to their true import, we are led to conclude that it is just and convenient to order disclosure of those two agreements in order to police the freezing order and to give ENRC all of the information it needs to execute the judgment anywhere in the world. The reluctance of the Deputy Bailiff to order disclosure of documents was in our view simply because he was being asked to do so ex parte---this is an inter partes hearing.
43. As against that, we must take into account that the parties are commercial competitors, and the potential for commercially sensitive information to be misused. We are not minded, certainly at this stage, to order the disclosure of correspondence or any other information beyond the agreements themselves, as we do not regard that information as necessary to police the world wide freezing order or to execute the judgment.
44. Advocate Sanders has asked that if we are minded to consider granting some of the relief sought, Zamin be given an opportunity to address the Court in private without ENRC's presence prior to any order being made "to explain the highly sensitive elements of the Agreements and potentially commercially damaging results that could ensue if ENRC were to obtain copies of them". Advocated Gleeson had no objection initially to that being done but following the issuing of this judgment in draft, he did raise concerns as to the Court being addressed by Advocate Sanders alone, in that he might seek to reargue Zamin's submissions and/or make new submissions to which ENRC would have no right of reply. Such a process could well give rise to an issue under Article 6 of the ECHR.
45. This was considered in "Documentary Evidence" 12th edition by Charles Hollander QC paragraph 8-31 in the context of disclosure under the Civil Procedure Rules: -
46. Whilst the Court will hear submissions in the absence of convened parties in administrative applications brought by trustees, in the context of civil litigation of this kind, we are concerned at allowing Zamin to make submissions in the absence of ENRC. At the same time Zamin should be allowed to explain to the Court why disclosure would be so damaging commercially without ENRC seeing the agreements, by which time, as Advocate Sanders said, the genie will be out of the bottle.
47. Of the various options suggested by Advocate Sanders in discussion, Advocate Gleeson was content to agree to the following as being fair, namely that the two agreements will be disclosed to the members of the Court (and not ENRC) at an inter partes hearing at which Zamin can make submissions by reference to them in the presence of ENRC. Whilst ENRC will not have the two agreements at that stage, it will be in a position to hear the submissions being made and have the ability to respond. That is the procedure, therefore, that we will adopt when this judgement is handed down on the 27th October, 2015, at 10am.
48. If an order is subsequently made, we have in mind the imposition of restrictions on its use upon which we can hear further from both counsel namely that the agreements:-
(i) Will be used only for the purpose of the English proceedings and enforcement proceedings brought in any other jurisdiction.
(ii) Will be delivered to the legal team of ENRC (to be identified) and to be seen but not copied to identified senior officers of ENRC.