Kensington International Ltd v Republic of Congo & Ors

Interim relief under section 25 of the Civil Jurisdiction and Judgments Act 1982 must be framed by reference to the foreign substantive proceedings and their possible outcome. The relief may therefore extend beyond the domestic remedy most closely resembling those proceedings where that is necessary to provide effective support.

Section 13 of the Fraud Act 2006 removes privilege against self-incrimination in ancillary disclosure proceedings connected with existing proceedings to recover property, including a debt. A related offence must involve deception or surreptitious dealing. Bribery qualifies because it seeks to suborn loyalty, deceives the principal and exposes the principal or public to harm. Section 13 governs disclosure in future proceedings even where the relevant events pre-date its commencement.

A judgment creditor obtained four Commercial Court judgments exceeding US$110 million against the Republic of Congo. It pursued oil-trading debts and related assets to enforce those judgments. Three appeals arose from orders against two United Kingdom companies in the Vitol group and two of their employees.

• Cresswell J continued an injunction under section 25 of the Civil Jurisdiction and Judgments Act 1982 in support of attachment proceedings in Geneva.
• Field J ordered disclosure under the Norwich Pharmacal jurisdiction concerning two oil cargoes.
• Gross J ordered disclosure concerning alleged bribes and held that section 13 of the Fraud Act 2006 displaced privilege against self-incrimination.

The appeals concerned the permissible scope of supporting interim relief, alleged abuse of process and the construction and temporal application of section 13.

1. All three appeals were dismissed. Moore-Bick LJ delivered the leading judgment. Carnwath LJ agreed, adding reasons on section 13 of the Fraud Act 2006. May LJ agreed with Moore-Bick LJ.

2. Section 25 of the Civil Jurisdiction and Judgments Act 1982 empowered the court to grant interim relief against the United Kingdom companies in support of the Geneva proceedings. The objection concerned the exercise of that power, rather than jurisdiction in the strict sense. The relief had to reflect the nature and possible outcome of the foreign proceedings. Since it was arguable that the Swiss attachment covered pre-payment obligations and future debts, effective support could be equally extensive. The unusual history of attempts to evade execution and the intention to circumvent a narrower order justified restraining payments more widely.

3. The Norwich Pharmacal order concerning the two cargoes was not an abuse of process. Releasing the appellants from a continuing obligation to disclose every future shipment did not preclude later applications concerning identified shipments. Such applications imposed a different burden and depended upon new, shipment-specific evidence.

4. A claim to privilege against self-incrimination requires real grounds for thinking that the requested material tends to incriminate the claimant. Mere assertion was insufficient. The peripheral categories identified by Gross J had been framed to avoid incrimination, and no evidence established a genuine prosecutorial risk.

5. Section 13 applies to any proceedings falling within its definition of proceedings relating to property. Where Norwich Pharmacal relief is ancillary to existing substantive proceedings, the proceedings may be viewed as a whole. Proceedings to enforce a debt are proceedings for the recovery of money because property expressly includes money and choses in action. The court declined to decide whether the section would cover pre-action disclosure or Norwich Pharmacal proceedings begun before any substantive claim existed.

6. A related offence under section 13(4)(b) must involve deception or a fraudulent purpose of that character. Offering or giving a bribe necessarily seeks to undermine an agent’s loyalty, involves deception of the principal and exposes the principal or public to harm. Statutory and common-law bribery were therefore related offences. Carnwath LJ agreed that offences involving deception or surreptitious dealing fall within the definition.

7. Giving a bribe does not, without more, constitute an arrangement under section 328 of the Proceeds of Crime Act 2002. The relevant property must already be criminal property when the arrangement becomes operative. Any prosecution risk on the facts was fanciful.

8. Section 13 is evidential and applies to proceedings after its commencement, although the evidence concerns earlier events. This is not retrospective penal legislation. The court left undecided whether employees could be compelled to disclose company material where the company independently retained privilege.

1. Court of Appeal (Civil Division): Dismissed all three appeals by Vitol Services Ltd, Vitol Broking Ltd and two employees.
2. Commercial Court, Gross J: On 13 July 2007 ordered Norwich Pharmacal disclosure concerning alleged bribe payments and rejected the claims to privilege against self-incrimination.
3. Commercial Court, Field J: On 26 July 2006 ordered Norwich Pharmacal disclosure concerning two specified oil cargoes.
4. Commercial Court, Cresswell J: On 26 May 2006 continued, with amendments, an injunction granted in support of attachment proceedings in Geneva and declined to discharge it.