Tajik Aluminium Plant v Ermatov & Ors

A party seeking to withhold relevant further information because disclosure may expose a third party to persecution must provide sufficient concrete and individualised evidence of a significant risk. General evidence of an authoritarian regime, without evidence explaining why the particular person is at risk, will not displace the opposing party’s entitlement to information reasonably needed to prepare for trial.

The decision whether to order further information is a case-management judgment to which an appellate court will generally defer. Fresh evidence on appeal must normally satisfy the Ladd v Marshall criteria, although an interlocutory appeal may exceptionally justify a more generous approach.

Tajik Aluminium Plant alleged that its former director, Mr Ermatov, had participated in corrupt arrangements with another businessman. Mr Ermatov admitted that a loan used to purchase two Moscow flats had partly been repaid with US$150,000 borrowed from an unnamed Tajik friend.

At a case management conference in Commercial Court proceedings, David Steel J ordered Mr Ermatov to identify the friend. Mr Ermatov appealed, contending that disclosure would expose the friend and associated persons to persecution by the Tajik authorities. He also sought to adduce further evidence concerning conditions in Tajikistan.

The central issues were whether the fresh evidence should be received and whether the asserted risk justified withholding information otherwise required for the fair preparation of the action.

1. Appeal dismissed unanimously. Moore-Bick LJ, with whom May and Laws LJJ agreed, upheld the order requiring Mr Ermatov to identify the alleged lender.
2. The court held that the ordinary criteria governing fresh evidence on appeal remained those in Ladd v Marshall, [1954] 1 WLR 1489: reasonable diligence, likely material influence on the result, and apparent credibility. Much of the proposed evidence could have been placed before the judge and the genuinely new material would not probably have affected the result. Nonetheless, because this was an interlocutory appeal, the court considered the additional evidence.
3. The proper case-management inquiry was whether further information was appropriate; whether disclosure would create a significant risk of persecution; and, if so, whether that risk outweighed the importance of disclosure. The identity of the lender was relevant to a substantial allegation about the source and repayment of funds. The appellate court should generally respect the judge’s evaluation of that issue.
4. There was no sufficient evidential basis for a finding that this particular friend faced a significant risk. General material about the Tajik government and unparticularised allegations concerning friends and relatives did not explain why a person who had made a modest loan years earlier would now be endangered. The later contention that the friend might be pressured as a potential witness was unsupported and had not been advanced below.
5. A party is ordinarily entitled to particulars reasonably necessary to investigate and prepare its opponent’s case before trial. Deferring the matter to cross-examination could impair investigation, disrupt the trial, and increase costs. The court also had powers to prevent or sanction any improper interference with a witness.

• Court of Appeal (Civil Division) — dismissed Mr Ermatov’s appeal in [2008] EWCA Civ 54.
• Commercial Court — David Steel J, at a case management conference, ordered Mr Ermatov to provide further information identifying the friend said to have lent him US$150,000.