Den Norske Bank ASA v Antonatos

Privilege against self-incrimination is not confined to answers that increase the likelihood of prosecution. It extends to information or evidence on which a prosecutor might rely in deciding whether to prosecute or proving guilt, including links in a chain of proof. A civil court cannot create adequate protection by placing incriminating material with a supervising solicitor; protection must be statutory. A Mareva order must not become a fishing exercise for admissions supporting the substantive claim. Cross-examination on a Mareva asset affidavit is exceptional, but limited questioning may be permitted to police the injunction. Questions about client money, front companies, nominee accounts or alleged bribes attract privilege where the answers may assist prosecution. A blanket claim is too broad, but valid objections should be upheld question by question.

Den Norske Bank ASA alleged that its former Greek shipping finance manager, Dimitri Antonatos, had taken bribes, conducted frauds and concealed assets through companies and nominee accounts. The bank obtained ex parte Mareva and Anton Piller orders. The Mareva order required disclosure of assets, including alleged bribes and related property, while permitting allegedly privileged material to be placed with a supervising solicitor.

Mrs Justice Steel ordered Antonatos to attend cross-examination on his disclosure affidavit and directed him to answer questions concerning money, companies, bank accounts and alleged front entities. Antonatos appealed, raising privilege against self-incrimination. The central issues were whether cross-examination was permissible, whether the order required protected incriminating disclosure, and whether particular questions had to be answered.

The appeal was allowed in part. Waller LJ delivered the judgment, with which Chadwick LJ and Millett LJ agreed.

1. Privilege. The relevant question was not merely whether an answer increased the risk of prosecution. The privilege covered information or evidence on which a prosecutor might rely in deciding whether to prosecute or establishing guilt. It included evidence forming a link in the chain of proof and information capable of leading to real or derivative evidence. Once a genuine danger was shown, the witness was entitled to considerable latitude in assessing the effect of a question, although the court had to prevent abuse.
2. Protection by court order. A civil court had no power to prevent prosecuting authorities obtaining information supplied in civil proceedings. Placing answers or documents with a supervising solicitor reduced the risk of discovery but did not provide adequate protection. Protection had to be statutory. An order requiring potentially incriminating disclosure was therefore defective.
3. Mareva procedure. Paragraph 3 of the order improperly required Antonatos to disclose whether he had received bribes or gifts from identified clients. A Mareva examination was for policing the injunction, not for obtaining admissions to prove the substantive fraud or bribery claim. Privilege should have been upheld in relation to questions concerning receipt or source of client money, the $340,000 loan, Sea Dream, Ginastera, ISC, nominee accounts and related funds. Existing documentary evidence did not entitle the bank to compel further incriminating answers.
4. Scope of examination. Cross-examination on a Mareva asset affidavit was exceptional. The judge was nevertheless entitled, given the urgency and concerns about breaches and undisclosed control of entities, to permit some limited examination. A blanket claim of privilege was too wide, but individual objections should have been upheld. Questions about assets, shareholding and operation of accounts might be legitimate; questions about control of alleged offshore front companies could involve genuine disputes and risked incrimination.
5. Orders. The rulings requiring answers to the scheduled questions were set aside. Antonatos was not required to provide the information to his solicitors or the supervising solicitor, and information already supplied was released to be dealt with as he and his solicitors agreed. The rulings permitting cross-examination and its continuation were upheld, although further examination under the existing order appeared extremely unlikely. The transcript was not destroyed, and its future use and any inferences from refusal were left for determination on a future application or at trial. The appellant received the costs of the appeal.

• Court of Appeal (Civil Division): the appeal was allowed in part. The rulings compelling answers to specified questions were set aside, while the permission for limited cross-examination and its continuation was upheld. The decision is reported at [1998] EWCA Civ 649.
• High Court: Mrs Justice Steel ordered Antonatos to attend cross-examination on his Mareva disclosure affidavit and directed answers to questions concerning assets and alleged incriminating matters.