Compagnie Noga D'importation Et D'exportation SA v Australia and New Zealand Banking Group Ltd

A claim to privilege against self-incrimination may be waived by making extensive asset disclosure without claiming the privilege. It cannot later be imposed retrospectively over the same material. In any event, the risk must be real and appreciable, and disclosure must materially increase an existing risk of prosecution or penalty.

Foreign criminal proceedings may be relevant to the court’s discretion when ordering disclosure under section 37 of the Supreme Court Act 1981, but they cannot themselves found a claim to privilege. The invocation of privilege may support an inference of concealment, but it does not automatically justify removing or tightening established allowances for withdrawals from frozen assets.

The claimant brought complex fraud and proprietary claims concerning Nigerian debt and obtained worldwide freezing orders against members of the Abacha family, Bagudu and related companies.

The applications concerned whether Abacha could rely on privilege against self-incrimination to avoid further asset disclosure, whether his invocation of privilege demonstrated undisclosed assets, and whether withdrawals from frozen funds should be terminated or subjected to a more rigorous policing regime. A related application concerned Bagudu’s withdrawals and an alleged excess over his living-expenses allowance.

The court considered the effect of earlier disclosures, subsequent criminal proceedings in several jurisdictions, and the existing arrangements governing legal and living expenses.

1. Privilege and waiver. Abacha had made extensive asset disclosures in affidavits and during cross-examination without claiming privilege, despite the freezing order expressly permitting such a claim. It was therefore not open to him to impose the privilege retrospectively over the same subject matter. He had waived privilege so far as disclosure of his assets was concerned, although the waiver was not general. [2007] EWHC 85 (Comm), [27]–[32].
2. Availability of privilege. The relevant risk had to be real and appreciable, and, where it already existed, disclosure had to materially increase it. The material had been in the public domain for years. The concluded investigation by the Serious Fraud Office and the absence of any committal application made the asserted risks of prosecution or contempt penalty illusory. Even if privilege had not been waived, it was unavailable. [33]–[37].
3. Foreign proceedings. The risk of criminal proceedings abroad could be taken into account in exercising the discretion to order disclosure under section 37 of the Supreme Court Act 1981, but it could not support a claim to privilege. The existing disclosure order was not to be set aside, particularly since disclosure covering the same ground had already been given and proceedings had begun in several foreign jurisdictions. [38]–[39].
4. Withdrawals from frozen assets. The invocation of privilege could, in an appropriate case, support an inference that assets remained concealed. Here that inference added nothing because deliberate non-disclosure had long been established. The existing arrangements for withdrawals from proprietary and non-proprietary funds had operated for years, and the circumstances did not justify revisiting them. [40]–[42].
5. Policing and Bagudu. A more rigorous system requiring a complete financial picture or the claimant’s consent before payments was unjustified. Existing notification arrangements had operated satisfactorily and further disclosure risked legal professional privilege and delay. Bagudu’s limited excess withdrawals resulted from an admitted spreadsheet error, had not been concealed, and were addressed by his undertaking to replenish sums ultimately found to belong to the claimant. The applications were refused. [43]–[48].

The judgment records that Rix J had earlier dismissed an application to discharge the freezing injunction and later determined preliminary issues. The Court of Appeal dismissed appeals against that judgment in July 2003, and the House of Lords dismissed Noga’s petition for leave in February 2004. The present judgment determined later interlocutory applications in the High Court.