Masri v Consolidated Contractors International Company Sal

Committal proceedings are civil applications within existing proceedings, not criminal trials or private prosecutions, although their quasi-criminal character attracts safeguards such as the criminal standard of proof. No general obligation of disclosure arises. Disclosure may be ordered at any stage, but only where necessary for the fair disposal of the application and subject to proportionality. Requests directed towards collateral investigations, fishing expeditions or speculative complaints about how evidence was obtained should ordinarily be refused. Hearsay remains admissible, although the absence of the maker or source may affect weight. Affidavits need indicate sources with sufficient precision; they need not identify every source by name where the evidence and authenticity are not challenged.

The judgment concerned a case management conference before a committal application arising from unpaid judgments of approximately US$75 million. The judgment creditor alleged that the judgment debtors had interfered with a receivership, failed to co-operate with court orders and failed to provide required information and documents.

The respondents sought, among other things, a stay or strike-out for abuse of process, disclosure of retained material obtained by inquiry agents, disclosure concerning receivers and sources, cross-examination directions, and exclusion of affidavit material. The central issues were the procedural character of committal proceedings, the scope of disclosure, the treatment of evidence obtained in allegedly improper circumstances, and the sufficiency of source indications.

1. Applications 8 and 9. Applications raising abuse of process and the effect of Lebanese judicial administration were left to the substantive hearing. They were fact-sensitive and required a proper exchange of expert evidence on Lebanese law.
2. Character of committal proceedings. A committal application is a civil application within existing proceedings. CPR provisions governing applications, evidence and case management applied. It was not a trial and was not to be equated with a private prosecution, as explained in Guilford Borough Council v Smith. Its quasi-criminal character nevertheless meant that the criminal standard of proof applied and relevant safeguards remained engaged.
3. Disclosure. No general obligation of disclosure arose. The court retained a discretion to order disclosure, but it should be exercised sparingly and only for documents necessary for the fair disposal of the application, following Fiona Trust Holding Corp. v Privalov and Rome v Punjab National Park. The requests for general disclosure, retained inquiry-agent material and reports from the receiver were disproportionate, collateral and in part speculative, and were refused.
4. Improperly obtained evidence. The material did not establish a sufficient prima facie case of theft, trespass or breach of confidence. Even assuming impropriety, exclusion was unlikely because the documents remained available to the respondents, the conduct was not shown to be outrageous, and the evidence was independent of the alleged misconduct. The issue could be raised at the substantive hearing if necessary.
5. Sources and evidence. Hearsay was admissible, although source anonymity could affect weight. The inquiry agents’ source had been indicated sufficiently for CPR Part 32 purposes. Cross-examination was permitted but had to remain confined to facts germane to the committal application. Affidavit submissions not relied upon in argument could safely be disregarded.

Not an appeal. The judgment determined case management applications before the substantive committal hearing.