Guernsey Legal Resources

2 The first appellant is President of the Republic of Equatorial Guinea and the second appellant is Attorney-General of that state, a friendly foreign state with which the United Kingdom has normal diplomatic relations. The second appellant sues on behalf of the Republic.

3 Logo Ltd., the first intervenor, is a company registered in the British Virgin Islands or in Nevis. The second intervenor is registered in the Bahamas. Both have a place of business in Guernsey where their business is managed by a management company (“Hansard”). Both have an account with the Bank. Both are said to be beneficially owned, wholly or in part, by Mr. Simon Mann.

4 On March 7th, 2004, the authorities in Zimbabwe arrested various persons, including Mr. Mann, at Harare Airport. On the following day a Mr. Nicolaas du Toit and other persons were arrested in Equatorial Guinea. The appellants allege that the individuals arrested were involved in an attempt to overthrow the Government of Equatorial Guinea by means of a privately-hired force of mercenaries armed with weapons (including machine guns, rocket grenade launchers, mortars, mortar bombs and hand grenades acquired in Zimbabwe), to seize control of the state and its assets, in particular its substantial oil and gas reserves, to kill, severely injure or abduct the first appellant, and to install Mr. Severo Moto, an Equato-Guinean living in exile in Spain, as President. They allege that this was pursuant to a conspiracy plotted and financed in England and elsewhere.

5 The appellants applied for Norwich Pharmacal orders against the Bank in the Isle of Man and Jersey. In each of those jurisdictions, orders were made, but proved fruitless. Accordingly, on April 30th, 2004, the

    (a) information and documents concerning the beneficial ownership of both the intervenors (the name of one being then incorrectly stated); and

    (b) documents identifying incoming and outgoing transactions on bank accounts in the names of the intervenors, Mr. Mann and Mr. Du Toit.

The application was prompted by investigations which were being carried out by the appellants into the funding of the coup. The appellants believed that the intervenors had been involved in that capacity, on the grounds given in Mr. Page’s affidavit. The intervenors deny any involvement in the coup, whether by way of funding or otherwise.

6 On April 30th, 2004, the application was granted and the Lieutenant Bailiff made an order in the terms briefly summarized above. Paragraph 2 of the order gave the appellants leave to use the information supplied to them to pursue others in Guernsey, Equatorial Guinea, Spain, Jersey, and England and Wales, in any civil actions but not in criminal proceedings. In Schedule II to the order, the appellants gave various undertakings to the Royal Court, including an undertaking at para. 6 to use the information only for the purposes of civil legal action in the jurisdictions mentioned and specifically not to use it in any criminal proceedings.

7 The order was served on the same day (April 30th, 2004) on Hansard, which accepted service on behalf of the second intervenor but not on behalf of the first, because of the mis-description. But both intervenors (through Hansard) knew of the order and neither moved then to set it aside. On May 7th, 2004 the Bank disclosed a number of documents to the appellants. On May 13th, 2004, the wording of the order was amended, and the appellants undertook to commence a civil action in one of the stated jurisdictions no later than June 30th, 2004.

8 On May 14th, 2004, the second intervenor applied to discharge the order of April 30th, 2004 and to prohibit the Bank from disclosing any further information to the appellants pending the hearing of that application. The application was adjourned for a substantive hearing, pending which the Royal Court ordered that no further disclosure be made to the appellants. On September 7th, 13th and 21st, 2004, the Royal Court heard the second intervenor’s application for a discharge or stay of the order of April 30th, 2004. In the course of the hearing, the advocate for the second intervenor confirmed that he was also instructed on behalf of the first intervenor and that if the appellants wished to pursue an application to

9 The intervenors’ primary submission of legal principle before the Lieutenant Bailiff was that the court had no jurisdiction to grant Norwich Pharmacal relief where no substantive proceedings were contemplated in Guernsey. He rejected this argument in a carefully considered judgment of November 3rd, 2004. The intervenors’ second submission was directed to the exercise of the court’s discretion to grant relief. The Lieutenant Bailiff acknowledged the intervenors’ denial of any attempted coup, but also recognized that the court could not resolve those factual issues. He recorded the intervenors’ acceptance, which he endorsed, that the wrongdoing alleged in the case appeared sufficient to support a Norwich Pharmacal application. He had earlier summarized the principles governing the grant of such relief in terms which, subject to one point considered below, are accepted as an accurate distillation of the law. In his judgment, the Lieutenant Bailiff weighed the considerations for and against the grant of relief. By this time, the appellants had issued proceedings in the High Court of England and Wales, and the Lieutenant Bailiff was somewhat bemused by the claims made—but regarded their validity as a matter for the High Court to decide. He expressed some sympathy for the view that the civil courts were not the proper forum for the resolution of matters which were properly the province of international diplomacy and co-operation, but thought it clear in principle that a state could seek assistance from the civil courts in another jurisdiction in the same way and subject to the same rules as any other litigant. He referred to evidence adduced by the intervenors to discredit the Government and judiciary of Equatorial Guinea, relied on to throw doubt on the appellants’ assertion that material obtained would be used for the purposes of civil proceedings only, but was unimpressed, not because he rejected the evidence, but because of authority which discouraged readiness to reject the undertakings of a friendly foreign state. He acknowledged that it might be premature to make an order, but was also concerned that the reputation of Guernsey as a financial centre might suffer if it were not willing to assist victims of wrongdoing to identify participants in it, so as to obtain redress. In conclusion, he found that the Bank might (although entirely innocent of wrongdoing itself) have information which would assist the appellants to identify the authors of that wrongdoing; that it was just and convenient in principle to grant a disclosure order in the terms sought; but that the intervenors had justified concerns about the possible use to which disclosed material might be put; that there was need to consider possible control mechanisms; and that accordingly the order of April 30th should be stayed, with liberty to apply.

11 The intervenors gave notice of appeal against that decision, on two grounds only. The first, repeating their primary submission to the Lieutenant Bailiff, was that the court had no jurisdiction to grant Norwich Pharmacal relief in aid of foreign proceedings. It is unnecessary to say more of this argument since the Court of Appeal rejected it and it was not pursued before the Board. The second ground (interpolating the current description of the parties) was this:

    “2. The learned Lieutenant Bailiff wrongly decided that the information sought could be provided to the [appellants] upon their undertaking only to use it in respect of certain English proceedings notwithstanding that the learned Lieutenant Bailiff had found on November 3rd, 2004 that there was at least a possibility that the information provided might be disseminated and that concerns were justified as to the possible use of information which might be disclosed by [the Bank] and that therefore the order of 30th April be stayed to enable the [appellants] to provide specific proposals as to how the Royal Court could retain some effective control over the use of the information if it were to be disclosed. Notwithstanding that finding and order, the learned Lieutenant Bailiff ordered on December 9th and 10th that the information could be disclosed even though the [appellants] had not provided any proposals as to how the Royal Court could retain such control.”

This, therefore, was the ground upon which the intervenors sought to challenge the order.

12 The Court of Appeal was not, however, content that the intervenors should challenge the order upon such a limited basis. It prompted submissions by them that the facts alleged by the appellants did not support the grant of relief since their allegations did not demonstrate the necessary level of involvement by the Bank, a matter expressly conceded below; that the Lieutenant Bailiff ought not to have permitted disclosure

13 This was not a legitimate exercise of appellate authority. The intervenors were professionally advised and represented throughout. It was not for the Court of Appeal to advance, and then uphold, submissions which the intervenors had not, for whatever reason, thought fit to advance for themselves. The Court of Appeal was hearing an appeal against the decision of the Lieutenant Bailiff, not exercising an original jurisdiction. And, once the jurisdiction point had been disposed of, it was hearing an appeal against his exercise of discretion.

14 The Court of Appeal held that it was entitled to exercise its discretion afresh because the Lieutenant Bailiff’s exercise of discretion was, on two grounds, flawed. These grounds, relied on by the intervenors before the Board were, first, that the Lieutenant Bailiff had wrongly ignored evidence adduced by the intervenors gravely damaging to the integrity of the Government of Equatorial Guinea and, secondly, that he had mistaken the threshold for the grant of Norwich Pharmacal relief.

15 As to the first of these points, the Lieutenant Bailiff was not unmindful of the criticisms levelled at the regime in Equatorial Guinea, but he recognized that he could not resolve whether those criticisms (which were disputed) were justified. Further, he treated those criticisms as largely relevant to the reliability of the appellants’ undertakings. This was proper, since it was the basis upon which that material was introduced. That aspect is considered below.

16 The second ground rested on the Lieutenant Bailiff’s ruling, when summarizing the principles governing the grant of Norwich Pharmacal relief, that “the power to order discovery is discretionary. The court should not so order unless it is satisfied that it is just and convenient to do so (on the basis of, or by analogy with, [the grant of an injunction]).” The Court of Appeal held this to be misdirection (2005–06 GLR 65, at para. 67): “No Norwich Pharmacal-type order should be made by the Royal Court unless the plaintiff establishes that it is essential and necessary [to assist the plaintiff in achieving justice] for the order to be made.”

17 It is true that in some of the cases the word “necessary” has been used, echoing or employing the language of O.24, r.13 of the Rules of the Supreme Court. But, as Templeman, L.J. observed ([1981] A.C. at 1132)

18 Neither of the grounds relied on entitled the Court of Appeal to exercise the trial judge’s discretion afresh. There is, however, a more persuasive ground for challenging his exercise of discretion. If, on November 3rd, he was, although narrowly, inclined against the grant of relief, for the reasons which he gave, the intervenors contend that he had no reason to reach a different conclusion on December 9th. It seems safe to infer from the reasons he gave, that he was impressed by the additional authority to which he had been referred.

19 The first of those authorities, Greece (Royal Govt.) v. Brixton Prison Governor (8) is, indeed, a strong one. The applicant had been convicted in his absence in Athens in 1966 of obtaining money by false pretences. In 1969, he was in England and the Greek Government sought to extradite him. He resisted, partly on grounds of natural justice and partly because he contended that, as a political opponent of the Government, he would be detained by the military authorities after, or in lieu of, serving his sentence. This was not a fanciful apprehension. Greece was then ruled by the Colonels to whom, as to earlier governments, he was “anathema” ([1971] A.C. at 255, per Lord Parker, C.J.); he had already served three periods of imprisonment, each time without trial, for political reasons (ibid.). Yet to treat him in that way would be a breach by the Greek Government of the extradition treaty between Greece and the United Kingdom. Lord Parker in the Divisional Court (ibid., at 262) and Lord Reid and Lord Morris of Borth-y-Gest in the House of Lords (ibid., at 278–279, 280 and 281) were unwilling to accept that a foreign government with which Her Majesty’s Government has diplomatic relations might act in such a manner.

20 In Haiti (Republic) v. Duvalier (9), to which the Lieutenant Bailiff made brief reference in his judgment of November 3rd, it was argued that disclosure should not be ordered in favour of the Government because the

21 Taken together, these were compelling authorities. It is a serious thing to impugn the good faith of a friendly foreign sovereign. Nor was any plausible suggestion made as to how the appellants were likely to misuse the information disclosed by the Bank even if minded to do so. The appellants wished to ascertain who had financed the abortive coup. The intervenors’ accounts held with the Bank were likely to identify some of those involved and have done so. In the circumstances, the Lieutenant Bailiff’s reservations expressed on November 3rd were dispelled. That he exercised his discretion with such obvious deliberation cannot fairly be relied on as a reason for invalidating his ultimate conclusion.

22 The Court of Appeal devoted several paragraphs of its judgment to disparaging and deriding the appellants’ claims as then formulated in the English proceedings. This was not an appropriate exercise. It is now known, although the Lieutenant Bailiff could not have known, that after three days of argument in the High Court, Davis, J., for reasons given in a lengthy judgment of September 21st, 2005 [sub nom. Mbasogo v. Logo Ltd. (No. 1) (10)], struck out the appellants’ substantive claims. But he did not strike out their claim for an injunction and he struck out their claim in conspiracy only because he felt bound by authority to do so. Leave to challenge that ruling has been given.

23 In the present instance, the Lieutenant Bailiff addressed the submissions made to him in a comprehensive, fair and accurate manner. He is not shown to have erred in any significant respect. The Court of Appeal of Guernsey should not have reversed his decision, largely on grounds of its own. Nor should this Board.

24 Their Lordships cannot, however, part with this appeal without expressing disquiet at the fact that no argument was addressed, whether to the courts in Guernsey or to the Board, on the question of whether the Lieutenant Bailiff lacked jurisdiction to make the order which he did on the ground that it could be regarded as the enforcement, direct or indirect, of the public law of a foreign state (Dicey, Morris & Collins, 1 The Conflict of Laws, 13th ed., Rule 3(1), at 89 (2000)). As Lord Denning, M.R. said in Att.-Gen. (N.Z.) v. Ortiz (3) ([1984] A.C. at 21) (a passage approved by Lord Goff of Chieveley in In re Norway (State) Applications (Nos. 1 & 2) (12) [1990] 1 A.C. at 807):

“By international law every sovereign state has no sovereignty beyond its own frontiers. The courts of other countries will not allow it to go beyond the bounds. They will not enforce any of its laws which purport to exercise sovereignty beyond the limits of its authority.”

25 It appears to their Lordships well arguable that the claims which the appellants say they wish to make in the English proceedings represent an exercise of sovereign authority, namely, the preservation of the security of the state and its ruler. The apprehension and trial of suspects, the imposition of security measures, obtaining diplomatic assistance: these heads of damage alleged by the appellants in the English proceedings can all be regarded as aspects of sovereign authority. And if a claim for damages will not lie, neither will a claim for an injunction: see Associated Newsp. Group Plc v. Insert Media Ltd. (2). As the High Court of Australia said in Att.-Gen. (U.K.) v. Heinemann Publ. Australia Pty. Ltd. (4) (165 CLR at 46), the application of the rule depends upon whether the “central interest” of the state bringing the action is governmental in nature. In that case, which concerned the Spycatcher book, the court held that notwithstanding the private law character of the cause of action (confidentiality) and the relief sought (an injunction), the claim arose out of “an exercise of the prerogative of the Crown, that exercise being the maintenance of the national security.”

26 Some discussion of the same principle is to be found in Austria (Emp.) v. Day (5), where Lord Campbell, L.C. (3 De G.F. & J. at 232; 45 E.R. at 867) regarded it as axiomatic that a court of equity would not grant an injunction to restrain someone from doing acts “to effect a revolution” in another country. Turner, L.J. likewise said (ibid., at 250; 874) that an English court had no jurisdiction to interfere with acts intended “for the purpose of promoting revolution and disorder in the Kingdom of Hungary.” The appellants argue that their claims are personal and proprietary: threats to the safety of the President and the property of the state as well as the expense of suppressing a coup. But there can be few revolutions which are guaranteed not to cause any injury or damage or that can be suppressed without putting the ruling power to expense. It may therefore be that the question is not whether the claim is framed by reference to personal injury or damage to property but whether, as the Australian High Court said, the “central interest” of the state in bringing the action is governmental in nature.

27 There are sound reasons of policy for the rule that the courts should not become involved in providing remedies, whether by way of injunction or compensation, for foreign governments faced with revolutionary activities. As their Lordships have said, the Lieutenant Bailiff rightly declared himself unable to resolve the questions of whether the Government of Equatorial Guinea was an oppressive tyranny or not and whether it could be trusted to honour its undertakings. To refuse to provide assistance on such grounds to the government of a state with which Her Majesty has

“To pass upon the provisions for the public order of another state is, or at any rate should be, beyond the powers of the court; it involves the relations between the states themselves, with which courts are incompetent to deal, and which are intrusted to other authorities. It may commit the domestic state to a position which would seriously embarrass its neighbor. Revenue laws fall within the same reasoning; they affect a state in matters as vital to its existence as its criminal laws. No court ought to undertake an inquiry which it cannot prosecute without determining whether those laws are consonant with its own notions of what is proper.”

28 That is not to say that there should not be international co-operation in dealing with violence against the state or the financing of terrorism. On the contrary, the need for such co-operation has become more evident in recent years. It is, however, arguable that the proper branches of government to make decisions of this kind are the legislature and the executive. The United Kingdom is a party to international conventions which provide for mutual co-operation in such cases and the Government of Equatorial Guinea has in fact requested assistance under the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents (1035 UNTS 167, which entered into force on February 20th, 1977) and the International Convention for the Suppression of the Financing of Terrorism (UN Doc. A/54/49 (Vol. 1) (1999), which entered into force on April 10th, 2002). Their Lordships do not know how productive this request has been.

29 Their Lordships have recorded these arguments in order to make it clear that, despite not having been presented, they have not been overlooked. But they consider that it is not open to them, any more than it was to the Court of Appeal, to decide the case upon a point which has not been raised by the parties. They will accordingly humbly advise Her Majesty that the appeal should be allowed with costs and the order of the Lieutenant Bailiff reinstated. Since, however, the same questions in relation to English law are likely to come before the English Court of Appeal, their Lordships think that the order should be suspended until that court has decided whether the appellants have a cause of action enforceable in English law. If it appears that they do not, it will be open to the respondents to apply to the Royal Court for the Lieutenant Bailiff’s order to be discharged.