Consolidated Contractors International Company SAL & Anor v Masri

An affidavit in committal proceedings must ordinarily identify a personal source of information or belief sufficiently for the affected person to investigate it. The word “indicate” permits departure only in exceptional circumstances, including where confidentiality properly requires it.

Committal proceedings remain civil proceedings. Specific disclosure is governed by the Civil Procedure Rules 1998 and is discretionary. The court must consider the issue, likely assistance to its resolution, and the overriding objective. Evidence obtained unlawfully is not automatically excluded. It remains admissible unless exclusion is just in all the circumstances.

Communications to a legal adviser for litigation may retain privilege in a redacted part without waiver through disclosure of the remainder.

Mr Masri sought to enforce a Commercial Court judgment debt against two Lebanese companies. In related committal proceedings he alleged that the companies had received revenues subject to receivership, obstructed the receiver, and failed to provide information.

The companies appealed from David Steel J’s case-management rulings, reported at [2010] EWHC 2640. They sought identification of the source of information in an affidavit concerning enquiry agents who had searched refuse outside their London offices. They also sought disclosure concerning those agents, inspection of two documents, and disclosure from the receiver.

The central issues were the meaning of the affidavit requirement to indicate a source, the proper disclosure regime for civil committal proceedings, the possible exclusion of allegedly unlawfully obtained evidence, and privilege.

1. Appeal allowed in part. The court ordered disclosure of the identity of the person or persons who supplied the information in paragraph 11 of Mr Bartlett’s affidavit, and of the enquiry-agent firm employing them. It dismissed the appeal concerning disclosure from Mr Masri, refused permission to appeal concerning exhibit ACB7/44, and dismissed the renewed application concerning disclosure by the receiver.
2. Affidavit source. Paragraph 4.2 of Practice Direction 32 required more than a general indication that information came from enquiry agents. In the context of formal affidavit evidence used to support serious contempt allegations, the source must ordinarily be identified. Where it is a person, the identification must enable the opposing party to investigate the information under applicable procedural and legal rules. Exceptional circumstances, such as proper confidentiality, may justify a less specific indication. None was advanced here.
3. Specific disclosure. Committal proceedings are civil proceedings, so disclosure is governed by CPR Part 31. Under CPR r 31.12(1), the court considers the relevant issue, whether disclosure would assist its resolution, and all the circumstances, including the overriding objective. The first-instance judge had applied those principles. His discretionary decision could not be disturbed absent legal error, an irrelevant or omitted material consideration, or a wholly wrong conclusion.
4. Allegedly unlawful evidence. The companies had not shown that the judge was wrong to find no prima facie case of theft, trespass or breach of confidence. Even if there had been such a case, exclusion was remote. Evidence is admissible unless exclusion is just in all the circumstances, including the conduct by which it was obtained. The requested disclosure was therefore a late and collateral fishing exercise, with little prospect of advancing a viable exclusion issue. Instructions to, and reports from, the enquiry agents would in any event be protected by litigation privilege.
5. Privilege and receiver documents. The redacted sender information in exhibit ACB7/44 was privileged because it concerned a third-party communication to a legal adviser during and for the litigation. Disclosure of the non-privileged remainder did not waive privilege in that separate part. Further undisclosed receiver communications would not assist the companies’ defence: if they did not know of the receiver’s actions, those documents could not show a deliberate failure to assist or an intention to obstruct.

• Court of Appeal (Civil Division). In [2011] EWCA Civ 21, the court allowed the appeal only as to identification of the affidavit source. It otherwise dismissed the appeal and the renewed applications for permission to appeal.
• High Court, Queen’s Bench Division, Commercial Court. David Steel J, in [2010] EWHC 2640, refused the requested source identification, disclosure, inspection and receiver-disclosure orders at a case-management conference for the committal application.