Attorney General of Zambia v Meer Care Desai & 20 Others

This is a recently decided case in the Chancery Division of the High Court http://www.bailii.org/ew/cases/EWHC/Ch/2007/952.htm, I was opportuned to have acted for 7 of the Defendants in both the High Court and the hearing of the Appeal on an application based on the enforcement of their Human rights and on the principle of Forum Non Conveniens i.e an inconvenient location for a case. The application or rather the appeal also focused on particular provisions of the State Immunity Act as it applied to the the Claimants in the matter.

Judgement was recently delivered in this case a link to the Judgment is attached, however I shall restrict myself to facts and legal principles in the Public domain especially the proceedings in the Court of Appeal which examined a number of topical legal issues and which has been been concluded and now stands as Law, in essence this article shall examine strictly only the issues of Law as interpreted by the Court of Appeal and no more. Where possible I have placed links to Internet resources containing information on this case, showing the public nature of the proceedings.
http://www.thelawyer.com/cgi-bin/item.cgi?id=117229&d=122&h=24&f=46http://www.hmcourts-service.gov.uk/judgmentsfiles/j3453/zambia_v_meer_1005.htm
http://www.bailii.org/ew/cases/EWCA/Civ/2006/390.html

The facts of the matter were thus:

1. Dr Frederick Chiluba (one of the 7 defendants whom I represented) was the former President of Zambia between 1991-2002, subsequent upon which leadership of Zambia was passed on to the present President Levy Mwanawasa, who subsequently insituted an anti-corruption probe against his predecessor, ultimately resulting in Criminal proceedings being instituted against Dr Chiluba and several other persons, including senior civil servants and some private business persons. The initial charge being for $4bn, subsequently amended to $4M and then further amended to $486,000.00 which is the present charge before the Zambian criminal court. The Zambian Government however took the step of filing a civil claim against Dr Chiluba and 15 other defendants in the Chancery Division of the High Court for breach of trust and for recovery of money misappropriated in breach of trust. The first step being by obtaining a Worldwide Freezing Injunction against the assets of the Defendants.

2. Seven of the said defendants whom I represented were however subject to the following restrictions: a. They had as a consequence of the criminal charges, had their passports seized by the Zambian Government and could not or would not be able to travel to UK to defend the UK proceedings; b. Most of the witnesses who were privy to the issues in the case were in Zambia; c. Any evidence given in the civil proceedings or any judgment was likely to prejudice or compromise the criminal proceedings in Zambia, by breaching the Defendants right to to decline giving evidence on the basis of self-incrimination, since in Civil proceedings there existed an obligation to give full disclosure of facts. These formed the grounds of application filed at the High Court challenging its Jurisdiction to hear the matter in the first instance and in the alternative for a stay of the UK proceedings pending the determination of the criminal proceedings in Zambia or for the Claimants to file the Civil Claim in Zambia and have it heard in its entirety by the Zambian courts. In addition stay was sought on the basis that the relative cost of the proceedings was far in excess of the defendants capability (i.e running into Millions of Pounds).

3. The application was heard by Justice Peter Smith and refused on 15th May 2005, with the following orders being made: a. That the proceedings be part-heard in Zambia, with Mr Justice Smith sitting as a Special Examiner and not as a Judge-in camera (following the Pacific Islanders case, to enable the Zambian defendants and witnesses give evidence and for the rest of the proceedings to be heard in London for the benefit of the other defendants and for the UK proceedings to be heard with CCTV Link to Zambia to enable the Zambian defendants participate. In addition an undertaking was sought from the Attorney-General of Zambia that evidence obtained in the UK should not be used in the Criminal proceedings- the ring-fencing of evidence. Justice Smith also required the Government of Zambia to give security for the costs of all the defendants on the submission of a costs schedule. http://www.bailii.org/ew/cases/EWHC/Ch/2005/2102.html

The decision of Mr Justice Smith was appealed on the following grounds filed at the Court of Appeal to wit; a. That the decision would result in prejudice to the criminal proceedings in Zambia in that the ring-fencing orders could be flouted without sanction as a result of the State Immunity priviledge of the Zambian Attorney-General; b. That the rights of the Defendants to a fair hearing under Article 6 of the ECHR would be compromised by their being prevented from attending the UK proceedings by the Claimants, which the decision of Justice Smith in itself failed to cure.

The relevant questions of law were thus:

a. Whether video link evidence meets the minimum standards of fair hearing prescribed by Article 6 of the ECHR in a trial- following the decision in ROMAN POLANSKI V CONDE NAST;

b. Whether the right of a party to attend a civil trial is an absolute right;

c. Whether a Foreign Government official is immune from sanction if he acts in contempt of Court;

d. Whether a ring-fencing order (of the nature made by Mr Justice Smith) was sufficient to prevent prejudice in parallel criminal proceedings?

I shall comment on the four legal issues detailed above:

a. POLANSKI was decided by the House of Lords in 2005 and was to the effect that Video link evidence was sufficient to meet the standards of fair hearing in a trial. If you recall Roman Polanski, the Film Director was reluctant to come to the UK to attend a hearing in a Claim filed against the Publishers of Vogue Magazine- Conde Nast on account of his trying to avoid an outstanding Charge of Sex with a Minor dating back to the 1960's, which Inspector Knacker of the Yard had kept in the oven simmering for him. He rather wisely preferred Video link evidence in the trial, the House of Lords agreed with him, the distinguishing factor from the present case being that Roman Polanski chose to give video evidence, in this instance it was contended that the Defendants had no choice in the matter and that the video-link prescription would serve to limit their right to a fair hearing in that they would be deprived of opportunity to properly participate in the proceedings, specifically by being able to instruct Counsel on specific issues arising during testimony amongst others.

b. In a criminal trial it is an absolute right of a defendant to be present to answer to charges made against him, this being an important aspect of Article 6 of the ECHR, the important question being whether this right extends to Defendants in Civil trial. The Appeal Court was to determine the extent of this right in line with existing statutes especially S.49(3) of the High Court Act.

c. Section 1 of the State Immunity Act provides for general Immunity for Foreign Government Officials, hence the argument being that if the Attorney-General of Zambia were to breach his undertaking not to misuse the evidence in the civil proceedings or indeed were to breach any orders made, there would be no effective sanction. Confusion however exists, in that Section 2 , states by way of exception that where a state has submitted itself to the jurisdiction it can no longer claim immunity e.g by instituting the proceedings as in this case. This ordinarily settling the matter, however Section 13 of the State Immunity Act goes on to provide that a state shall not be liable to pay a fine or to any other penalty for failure to produce documents or provide information, with exception being that there has been an express and formal expression to be bound by the order, this being only by way of compliance with a final order or Judgment. The Court of Appeal's remit being to read the contradictions in the provisions of the act and provide a composite view.

d. A ring-fencing order as defined, being an order made to provide confidentiality in proceedings especially evidence given in the said proceedings, in this instance to prevent the same being used in the parallel criminal proceedings. Being a fairly novel principle the Court of Appeal was being called to examine the efficacy and fairness of these proceedings, in the context of the possible prejudice to the defendants in the said parallel criminal proceedings.

The decision of the Court of Appeal:

http://www.bailii.org/ew/cases/EWCA/Civ/2006/390.html

a. Whereas it was desirable to have the Defendants attend the proceedings, the balance was in favour of preserving the interest of the Zambian Government in preventing any ofthe Defendants from absconding, hence it was appropriate at Law for Mr Justice Smith to have made the order for Video Link evidence, whereas the facts of Polanski's case differ from this, the consideration of other competing factors made the prescription of video evidence an inconvenient but necessary evil. In essence all cases turn on their own facts. The Court of Appeal considered however that Smith J's prescription of a ring-fencing arrangement provided a necessary safeguard to any concerns the Defendants would have as to potential prejudice in the Criminal proceedings, arising from the use/misuse of evidence gathered in the Civil proceedings.

b. In a civil trial, a party does not have an absolute right of attendance, whilst the Court of Appeal considered the case of Muyldermans v Belgium (1991) 15 EHRR 204, the proceedings and the circumstances were in its view different from the present case. The provisions of Article 6 of the ECHR merely provide an absolute right for a party to be informed about Civil proceedings and not necessarily a right to attend or be present.

c. Any potential lacuna in the provisions of the State Immunity Act providing a basis for the Attorney- General to escape sanction for contempt in the event of his breaching the provisions of the ring-fencing order were cured by the Undertaking of the Attorney-General of Zambia to abide by the provisions of the Ring-fencing order and indeed to waive his Immunity from enforcement of any contempt proceedings. Thus providing a template for States where Immunity comes into issue. In essence an Undertaking potentially shall provide a re-inforcement of the Courts Jurisdiction to sanction contemptuous behaviour.

This is a particularly important Judgement in the area of Administrative Law/Civil Procedure and I shall in a later post examine the Judgement and its Implications.