Zambia v Meer Care & Ors

In civil proceedings conducted alongside criminal proceedings, a protective ring-fencing order may adequately address the risk that evidence will be used in the criminal case. A defendant who considers the protection inadequate should raise the objection when the order is made. An appeal based on an alleged breach requires particulars of the breach, including who acted, when, and what was disclosed. Article 6 complaints about participation, funding, witness attendance, transcript access, draft judgments or publication require an evidential foundation and identified prejudice. A freezing-order exception for legal expenses requires evidence justifying it, particularly after judgment when the order protects execution. Where the first-instance judge identifies evidential deficiencies and invites a fresh application, an appeal is premature.

These were applications by the seventh and ninth defendants for permission to appeal orders made by Mr Justice Peter Smith after a Chancery trial lasting more than 50 days. The underlying claim concerned alleged conspiracies to misappropriate funds belonging to Zambia. The appellants were also defendants in concurrent criminal proceedings in Zambia and had ceased participating in the civil proceedings.

They challenged the adequacy and enforcement of a ring-fencing regime, the conduct and publication of the judgment, funding and witness arrangements, and alleged breaches of Article 6. They also sought permission to add bias grounds based on matters concerning the trial judge. The ninth defendant separately sought permission to appeal refusal to vary a freezing order so as to permit legal expenditure. An earlier stay appeal had been dismissed: [2006] EWCA Civ 390. The central issue was whether any proposed ground had a sufficient prospect of success.

1. Permission applications refused. Lord Justice Lloyd rejected the proposed procedural and Article 6 grounds, and Lord Justice Laws agreed. The court also refused permission to amend the notices of appeal to add bias allegations.
2. The ring-fencing order, reinforced by the Attorney General’s undertaking and consent under the State Immunity Act 1978, was intended to provide adequate protection against use of civil evidence in the Zambian criminal proceedings. If the appellants considered the arrangement inadequate, that objection should have been raised when the order was made. Their later complaint about the absence of a separate immunity document was therefore not a viable ground.
3. Alleged breaches of the ring-fencing order were unsupported by particulars identifying the responsible person, the timing of the breach or the material disclosed. The requirement that transcripts be collected personally and subject to confidentiality undertakings was not shown to be improper, unfair or contrary to Article 6. Nor did the absence of a draft judgment or the publication of the judgment disclose a viable ground where no new material from the appellants or identifiable prejudice to their criminal proceedings had been shown.
4. The funding complaint was unpersuasive. The ninth defendant could have sought funds by selling a farm after a restriction notice had been revoked, and there was no adequate explanation for the absence of a sale. The complaint that the special examiner could not compel witnesses also lacked substance because no relevant witness had been identified.
5. The late bias allegations were either known when the notices of appeal were lodged or lacked a factual basis. The material disclosed in Howell, Thompson & Robinson v Millais & Others, [2007] EWCA Civ 720, concerning the judge’s discussions with solicitors after retirement, provided no conceivable basis for supposing that he had been influenced in the litigation.
6. As to the freezing order, the judge was entitled to require sworn evidence explaining the defendant’s circumstances, how he had managed previously, any change of circumstances and the position concerning the farm. After judgment, when the order protected execution, the expenditure exception could properly be examined more critically. The appropriate course was a fresh application at first instance supported by evidence, not an immediate appeal.

• Court of Appeal (Civil Division): On 17 December 2007, refused permission to appeal against the orders of 4 May and 7 June 2007, and refused permission to amend the appeal notices to add bias grounds. An earlier stay appeal had been dismissed: [2006] EWCA Civ 390.
• High Court of Justice, Chancery Division: Following the trial, Mr Justice Peter Smith made the substantive order on 4 May 2007. On 7 June 2007 he refused to vary a freezing order to permit specified legal expenditure.