Claimants A, B, C and D v Respondent E
| Jurisdiction | Anguilla |
| Judge | BLENMAN, J,Louise Esther Blenman |
| Judgment Date | 26 January 2011 |
| Judgment citation (vLex) | [2011] ECSC J0126-1 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Docket Number | CLAIM NO.AXAHCV 0063/2010 |
| Date | 26 January 2011 |
IN THE HIGH COURT OF JUSTICE
The Hon. Madame Justice Louise Blenman
CLAIM NO.AXAHCV 0063/2010
This application is one that is mired in secrecy and, based on the request of the applicants, has been sealed by the court.
The court delivered its oral decision in this matter on the 30th December 2010. It has now become necessary to give reasons for the decision. I hereby do so.
Due to the secrecy which surrounds the application even though the court gave an oral decision, it is appropriate to give full reasons for that decision, being mindful, nevertheless, of the need to protect the identities of the parties.
The applicants in this matter A, B, C and D are defendants and counterclaimants in another matter. In fact, in that matter they have filed quite an elaborate amended Defence and Counterclaim in which they allege that the claimants, referred to as F, are guilty of several wrongs.
The applicants A, B, C and D in the present application, (before the court) seek the assistance of the court in order to obtain what is referred to as aNorwich Pharmacal/Bankers Trust Co v Shapira Order. They say that the bank E has information which should form the basis of a Norwich Pharmacal Order. They are seeking to obtain from respondent E (the bank E) information in relation to accounts held by F.
In their affidavits in support of the application, A, B,C and D, have provided the court with several allegations of F's wrongdoings and point to several related matters/claims most of which are speculative in nature. They say that other persons or entities are involved with F, in the wrongdoings that allegedly have been committed.
The applicants A, B, C and D say that they need the information which may well assist them in pressing their Defence and Counterclaim, in the other matter.
Also, the applicants say that the defendant F has denied the allegations and they are uncertain about the full extent of the defendant's wrongdoing. Unless they are able to obtain the payment records from respondent E, who they say is a third party that is mixed up in the defendant's wrongdoing, they would not be able to discover the extent of the defendant's wrongdoing. In fact, they say that the information they seek in this application is to enable them to press their Defence and Counterclaim, in the main action or to bring any future or related proceedings.
In fact they have placed before the court quite a lot of material. To say the least, the net has been drawn very wide and most of the matters referred to may have very little relevance to any contemplated proceedings. The court proposes to address this matter in greater detail, very shortly.
It is appropriate to say that the applicants A,B,C and D are seeking the following order:
All bank account records and all communications concerning the transfer from accounts held by the defendant F and any other account over which that defendant or its directions or officers have signing authority, in favour, or to the order of and certain entities from 1st January 2005 to date.
There are 18 other named entities or persons in relation to whom the applicants A,B,C and D seek to have similar orders apply to insofar as they may have either communicated, held accounts or had monies transferred to them.
A,B,C and D also seek to obtain information of a similar nature: communication, account records that F may have dealt with in relation to the named 18 persons or entities.
It is noteworthy to emphasize that A,B,C and D (the applicants) have filed a Defence and Counterclaim in which they allege that F defendants together with others have obtained bribes and unlawfully paid secret commissions to others. They allege that defendant F obtained value from them by fraud. They say that the defendant F and its affiliates maintained accounts at the respondent E's bank.
The applicants contend that the court has jurisdiction to grant the Orders and that in the present application it is just that the Orders be granted.
For obvious reasons, the application was served on respondent E with strict orders that respondent E was not to bring it to the attention of F or any of its agents or solicitors.
The bank, Respondent (E) opposed the application on the following grounds-
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(a) The application amounts to a mere fishing expedition since the applicants have indicated in their Defence and Counterclaim who are the persons that have wronged them and have clearly stated the full extent of the alleged wrong.
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(b) The information which the applicants seek can be obtained by the means of discovery in the main action and therefore the court ought not to lend its assistance.
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(c) The bank E, cannot be properly compelled to disclose the information since to do so would be to override its duty of confidentiality. SeePresident of the State of Equatorial Guiniea v Royal bank Scotland [2006] UKPC 7; Bankers Trust v Shapira [1980] WLR 1274. See also Richard Rowe, Mark Secrist v St. Kitts Nevis and Anguilla National Bank a decision of the High Court of St. Kitts and Nevis.
The court has reviewed the very lucid and helpful submissions of both learned counsel Mr. Gerhard Wallbank for the applicants and learned counsel Ms. Ayodeji Bernard for the bank. The court has carefully considered the applications and the affidavits that have been filed in support and in opposition.
The locus classicus isNorwich Pharmacal Co v Commissioners of Customs & Excise [1974] AC 133 in which it was held that a person who was innocently mixed up in the wrongdoing of another, so that he was more than a "mere witness" could be compelled to disclose the identity of the actual wrongdoer, in order that proceedings can be taken by the victim against the appropriate defendant. As it emerged the jurisdiction to order discovery in the above circumstances came to be referred to as the Norwich Pharmacal jurisdiction.
The court takes cognizance ofMohammed (on the application of Binyan Mohammed) v Secretary of State for Foreign and Commonwealth Affairs)— in which it was made clear that the jurisdiction could not be used to provide a general right of discovery. It was pointed out that the Norwich Pharmacol orders in relation to tracing claims, required banks to give "full information"relating to the customer's account, if the circumstances demanded it". In the above case, the court accepted that, in the normal case information beyond the identity of the wrongdoer might not be appropriate, but the instant case was exceptional, and the jurisdiction sufficiently flexible to permit more extensive information to be provided.
InArab Satellite Communications Organisations v Saad Al Faqih [2008] EWHC 2568 QB Underhill J refused to make an order at all because of the potential wrath. He said Norwich Pharmacol "did not give the claimant a general licence to fish for information that would do more than potentially assist them in identifying a claimant or defendant".
SeeMercantile Group (Europe) AG v Aiyela the English Court of Appeal stated:
"the jurisdiction to order disclosure against a third party exists when two conditions are satisfied. First, the third party must have become mixed up in the transaction concerning which discovery is required. Secondly, the order for discovery must not offend against the mere witness rule".
To put it succinctly, three conditions must be satisfied in order for the court to exercise its power to order Norwich Pharmacal relief. These are:
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(a) There must be an apparent wrong carried out by an ultimate wrongdoer;
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(b) There must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
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(c) The person against whom the order is sought must (a) be mixed up so as to have facilitated the wrongdoing, and (b) be able or likely to be able to provide the information necessary for the ultimate wrongdoer to be sued.
The law has evolved and the court has granted relief even in the absence of an arguable case that a wrong has been committed.
The court accepts the principle enunciated inP v T Ltd namely: where justice required the granting of relief, the court would make an order for discovery to assist a prospective plaintiff to obtain the information and documents necessary to bring an action in tort against a third party, not withstanding that without such information, the plaintiff could not ascertain whether the unidentified third party had in fact committed a tort against him. Moreover, it was not necessary that the tort of which the plaintiff complained be criminal in nature. In the instant case, it was not possible for the plaintiff to know for certain whether he had a viable cause of action against the informant without discovery, justice therefore demanded that he should be placed in a position to clear his name if the allegations made against him were without foundation. An order for discovery to enable the plaintiff to determine whether any action lay against the informant would accordingly be made.
The threshold test for the grant of a disclosure order is that applicants A,B,C and D must disclose a good arguable case that a wrong has been committed. SeeBankers Trust Co v Shapira ibid.
It is of assistance to state the background to this matter in a little bit more detail.
The applicants, A,B,C and D filed a without notice of application in which they seek discovery the focus of which is the basis of this decision. The court, having heard the application together with the supporting affidavits/documents ordered that the documents be served on the respondent E (the bank E), the respondent E is the discovery respondent. The matter was fixed for...
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