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Neutral Citation Number: [2015] EWHC 357 (Admin)Case No. CO/2986/2014

IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT

Royal Courts of Justice Strand London WC2A 2LL

Date: Wednesday, 21 January 2015

B e f o r e:

MRS JUSTICE ELISABETH LAING - - - - - - - - - - - - - - - - - - - - -

Between:

NATIONAL CRIME AGENCY

Claimant

vABACHA Defendant

- - - - - - - - - - - - - - - - - - - - -Computer-Aided Transcript of the Stenograph Notes of

WordWave International LimitedA Merrill Communications Company 165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)

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Mr Jonathan Hall, QC and Mr Alexandra Cook (instructed by NCA Legal) appeared on behalf of the Claimant

Mr Paul Stanley, QC and Mr Peters (instructed by Byrne & Partners) appeared on behalf of the

Defendant- - - - - - - - - - - - - - - - - - - - -

J U D G M E N T

MRS JUSTICE ELISABETH LAING:

1. There are three applications before me today. The first is an application for

continuation of a prohibition order made by Foskett J on 2 July 2014 (which I shall

refer to as “the prohibition order”). That froze over £100 million worth of assets which

the United States of America alleges represent proceeds of the frauds of General

Abacha and his associates. The second application, by two Respondents, which I shall

refer to as “the Blue Companies”, is for an order for disclosure by the National Crime

Agency (which I will refer to as “the NCA”) of the letters of request for mutual legal

assistance sent by the United States of America to the United Kingdom. The third is an

application for variation of the prohibition order to permit the Blue Companies’ legal

expenses to be met from the assets that were frozen pursuant to the prohibition order.

2. The procedural background is set out in the skeleton argument prepared for the NCA

by Mr Hall QC and Alexandra Cook. I have also read the skeleton argument prepared

by Mr Stanley QC and by Mr Peters. I refer to Mr Hall QC and Mr Stanley QC as“Mr

Hall” and “Mr Stanley” respectively, just for the sake of brevity, and not meaning to

indicate any disrespect to them.

3. So, as I have said, the prohibition order was made by Foskett J on 2 July 2014. At that

stage there was a commercial freezing injunction in place in respect of the same assets

which are the subject of the prohibition order. That had been obtained by the United

States of America from Teare J on 25 February 2014. It was continued by Field J in

April 2014. There was then an appeal to the Court of Appeal against the freezing

injunction by the Blue Companies. The Court of Appeal allowed that appeal on the

grounds, I am told, that it was not appropriate for an ordinary freezing injunction to be

granted by the court in circumstances where there was a discrete statutory scheme

applying to cases such as this case.

4. The prohibition order was expressed to take effect on the discharge of the freezing

injunction. The freezing injunction was discharged on 9 October 2014. That brought

the prohibition order into effect. The prohibition order has been varied by consent. I do

not need to deal with details of that.

5. The prohibition order is an order in aid of proceedings in the United States in rem

against assets which are said to have been derived from unlawful conduct, as is

explained in the skeleton argument for the hearing on 2 July 2014.

6. There was a letter dated 16 January 2015 from the United States Department of Justice

(which I will refer to as “the DOJ”). That indicated that significant progress had been

made on the claim in the United States. A forfeiture judgment has been obtained from

the US District Court for some US$477 million. Some of those funds are located in the

United Kingdom, about $23 million. The court making that decision concluded that:

7. "Based on the government’s well-pleaded allegations in this verified

complaint….that [the forfeited] the defendant assets….were involved in transactions

in violation of 18 USC paragraphs 1956 and 1957, or are traceable to such property."

8. That judgment is currently subject to an appeal. The United States continues to litigate

in relation to the remaining US$148 worth of assets, with a hearing of a motion

scheduled for early February 2015.

9. The legislative scheme

10. The power of the court to make or to continue prohibition order is conferred by Part

4A of the Proceeds of Crime Act 2002 (External Requests and Orders) Order

2005/3184 (which I will refer to as “the 2005 Order”, as amended. A prohibition order

is an order that specifies or describes the property to which it applies and (subject to

any exclusion) prohibits any person whose property it applies from dealing in any way

with that property."

11. The NCA has summarised the effect of the statutory provisions as follows. Since the

11 November 2013 a court may on the application of the NCA, which is an

enforcement authority, make a prohibition order if satisfied that

(1) it concerns property in England and Wales (a) in respect of which there are

reasonable grounds to be believe that it may be needed to satisfy an external

order (that is, an order made by an overseas court where property is found or

believed to have been obtained as a result of or in connection with criminal

conduct, and is for the recovery of specified property or a specified sum of

money) which has been, or which may be made; and (b) which is identified in an

"external request" that is "a request by an overseas authority to prohibit dealing

with the relevant property which is identified in request." I will refer to that as

“the first condition”.

(2) Proceedings have not been taken in relation to the property under Chapter 2 of

Part 5 of the 2005 Order. I will refer to that as “the second condition”. Chapter 2

of Part 5 provides for the enforcement of "external orders" in the United

Kingdom and is also the machinery which would be used to enforce any final

order made by the United States courts. There is, as yet, no final order in this

case.

(3) None of the exceptions listed in article 141F apply in respect of the

relevant property. I will refer to that as “the third condition”.

12. The background to the application

13. The NCA submits that, for the reasons set out in its skeleton argument for the 2 July

hearing, the first, second and third conditions are met. The NCA relies on a witness

statement by Katrina Angliss dated 19 January 2015 seeking a continuation of the

prohibition order, and relies in particular in that context on the first witness statement of

David Templeman dated 27 June 2014 (that the witness statement that was made in

support of the application for the original prohibition order), and on the DOJ letter to

which I have already referred, which sets out the continued need for the prohibition

order, and which is exhibited to Miss Angliss' witness statement.

14. So that is the background to continuation of the prohibition order. Save to a limited

extent, a procedural point really about the return date, continuation of the order is not

opposed by the Blue Companies, subject to the disclosure point which I will deal with

in a moment.

15. The disclosure application is for the letters of request on which triggered the making of

the prohibition order. The statutory requirement under article 141C of the Order is that

“….the court should be satisfied that an application for a prohibition order relates to

property which is specified in an "external request”." The evidence about that is in Mr

Templeman's affidavit. He states that the formal request for mutual assistance was

received by the United Kingdom Central Authority from the United States of America.

He furthers states that the property which was the subject of the application was

"identified in the external request” from the DOJ and further, that the property which

was the subject of the application was "relevant property identified in the external

request received from the DOJ, and that that external request asks the United Kingdom

prohibits the Respondents from dealing with the property so identified."

16. I pause there. Mr Stanley on behalf of the Blue Companies accepts, I think, that

the property has been properly identified in the evidence before the court. The

Blue Companies are seeking inspection of the requests for assistance and they

argue that without that prohibition order ought to be discharged. So that is the

disclosure application.

17. Submissions on the disclosure application

18. The submissions made about that by the NCA are really these. It is submitted that it is

not a statutory requirement, or a requirement of the relevant legislative scheme, that the

relevant external request is produced or disclosed, either to obtain prohibition order, or

to prevent it from being discharged. All that is required, it is submitted, is that the court

must continue to be satisfied that there has been a request by an overseas authority that

prohibits dealing with relevant property which is identified in the request. The

submission on behalf of the NCA is that to make the continuation of the prohibition

order conditional on disclosure of the letters of request would be to insert an additional

requirement into a carefully formulated statutory scheme and that there is no basis for

any such requirement in the language of the legislation.

19. The second submission made by the NCA is that there is clear and unambiguous

evidence that the statutory conditions had been satisfied and that it continues to be

appropriate for the prohibition order to stay in force, and there is no reason for the court

to require disclosure of the letters of request in its discretion on the facts of this case. It

is submitted that Mr Templeman's affidavit is evidence that the United Kingdom has

received the relevant external request and that the external request relied on identified

relevant property.

20. It is submitted that the witness statement of Miss Angliss, and the DOJ letter which

is exhibited to it, show that the prohibition order needs to continue in force. It is

further submitted that there is no suggestion that Mr Templeman is not telling the

truth about these matters. In their letter of 19 December 2014 the Blue Companies

said that

"Mr Templeman's view of the request for legal assistance is not a sufficient basis for the

order regardless of his honesty." That argument is not accepted by the NCA. It is

submitted that Mr Templeman's evidence, not view, about the existence of the request,

and the fact that the property is subject to the prohibition order is specified in it, are both

clear. It is important, I think, that this is accepted by Mr Stanley.

21. It is further submitted by the NCA that his evidence was sufficient to satisfy the court on

2 July 2014 that the requirements for a prohibition order are met and it was not

suggested by the Blue Companies at that hearing that the prohibition order could not be

made without disclosure of the requests. It is submitted that this evidence remains

sufficient, particularly since in substance, it is clear from correspondence on behalf the

Blue Companies that Mr Templeman’s credibility is not in issue.

22. The NCA goes on to submit that what Mr Templeman has stated is consistent with the

procedural history of the case, as is known to the Blue Companies. Firstly, the United

States’ claim, of which the Blue Companies are aware, is about the very same assets

located in United Kingdom which are the subject of the prohibition order. Secondly, the

United States of America has asked the United Kingdom for assistance with freezing

those assets in the United Kingdom. In other words, it made the external request (which

the United Kingdom originally declined). As a result of that the United States of

America obtained the commercial freezing injunction over the very same assets which

are the subject of the prohibition order. In response to that, the United Kingdom

reconsidered its position, and made the application in July for the prohibition order. In

these circumstances it is submitted that the idea that, for example, the "external request"

is likely to have referred to fewer, or to different, assets than those which were

subsequently the subject of freezing injunction, is a nonsense.

23. A further submission made by the NCA is that the Blue Companies have not made out

any basis for an entitlement to disclosure of the "external request" in particular because

a well-established confidentiality attaches to inter-State communications, such as

requests. I will deal with that point in more detail below. It is further submitted by the

NCA that although the Blue Companies have inferred from documents exhibited to Mr

Templeman's affidavit that there are 6 documents requesting mutual legal assistance, no

such document or documents is or are "mentioned" in Mr Templeman's affidavit, within

the meaning of CPR rule 31.14, which requires a specific identification of an actual

document or documents. In none of the paragraphs of Mr Templeman's affidavit on

which the Blue Companies rely does Mr Templeman actually mention the documents to

which the right to inspect under rule 31.14 attaches.

24. The NCA goes on to submit that even if, which it does not accept, the Blue Companies

have any prima facie entitlement to inspection pursuant to rule 31.14, the court has an

inherent jurisdiction to prevent such inspection if it is not necessary for the fair disposal

of the action. In that context the NCA refers to the decision of Morgan J in Danisco A/S

against Novozymes A/S (No. 2) [2012] FSR 22, at paragraphs 72 to 73. It is submitted

that there are very good reasons why the court should not require the documents (which

are alleged by the Blue Companies to exist) to be disclosed. In summary, it is submitted

that requests for mutual legal assistance are, by treaty, confidential. There is no

presumption in favour of disclosure of requests for mutual legal assistance. Indeed the

presumption is against disclosure. That may be rebutted if it is in the interests of justice

for disclosure or partial disclosure, to be made. There is no unfairness here. The Blue

Companies failed to advance any (or any good) reason for requiring inspection of

documents which, they infer, exist and/or why Mr Templeman's affidavit is not a

truthful or accurate representation of the position.

25. Finally, it is submitted that the United States has specifically confirmed in the DOJ letter

that it does not consent to the disclosure of any request for mutual legal assistance.

26. Mr Stanley's submissions about the disclosure application are essentially, firstly, that the

letters of request lie at the heart of the NCA application. Without them the application

could not have been pursued at all. They are therefore of critical relevance to that

application and must be disclosed to the Respondents. He goes on to rely on CPR Part

31.14(1)(b) which, he submits, confers a right on the Blue Companies to inspect the

letters of request. He also refers to CPR Part 31.15(b) which he says imposes an

obligation on the NCA to permit inspection of requests within 7 days of a written

request for such inspection.

27. He deals with the NCA's argument in this way. So far as the argument concerning Mr

Templeman's honesty is concerned, he submits that that is based on the proposition that

a party does not need to disclose documents that are central to its case unless there are

specific challenges to the honesty of its description of those documents. He submits that

that proposition is unprincipled and absurd, and that English civil litigation proceeds on

the footing that parties must disclose documents which are relevant to their respective

cases including all the documents on which they rely. The courts do not expect one

party of the litigation to take the other party's gloss on the relevant documents at face

value.

28. In any event, Mr Stanley submits that the NCA's reference to there being no challenges

to Mr Templeman's credibility is a bit of a red herring. The court has to be satisfied

before making or continuing prohibition order that the legislative requirements specified

in the 2005 Order have been satisfied. Whether those are satisfied is a mixed question of

fact and law. Mr Stanley says that Blue Companies cannot properly address that

question unless they have seen the requests. He then sets out the potential scope of the

relevant legal analysis by reference to the three legislative conditions to which I have

already referred.

29. A prohibition order may only be made in respect of relevant property which has been

identified in external request. The property must be relevant property, and there must be

reasonable grounds to believe that it may be needed to satisfy "an external order". It is

not enough, he submits, that property subject to the foreign proceedings is identified in

the request. This is because of the definition of “external order”. The definition requires

among other things that the order must be made by an overseas court where property is

found or believed to have been obtained as a result of, or in connection with, criminal

conduct. He says this point is significant because United States money laundering law is

wider than the United Kingdom equivalent. He submits that the Blue Companies are

unable to go any further without having seen the requests.

30. As to the NCA's confidentiality argument, he submits that the bare assertion of

confidentiality is no answer to a claim for disclosure. In that context he refers to

Hollander on Documentary Evidence. He submits that the NCA has not raised in

correspondence any assertions of confidentiality which relate specifically to these

requests. Instead it seems to be asserting a general claim that all external requests

for mutual legal assistance are confidential and should not be disclosed.

31. He submits that the NCA's reliance on its policy is a hopeless argument. The NCA

does not have the power, whether by issuing policy documents, or otherwise, to re-

write disclosure obligations. As far as it goes, I accept that argument. He also submits

that the NCA has not put forward any proper basis from which it could be thought to

be entitled to avoid its obligation to permit inspection requests under CPR 31.14.

32. So in short, those are the parties’ submissions on the disclosure application.

33. The Variation Application

34. The variation is an application by the Blue Companies to enable their legal costs to be

paid from the assets which have been frozen and I don't think I need to say anything

more about it at this stage.

35. Discussion

36. I am going to deal with the disclosure application first because it seems to me that that is

the logical place to start. I accept the submission that there is no requirement in the

legislative scheme that letters of request should be disclosed. The position is that the

court has to be satisfied that the three conditions I referred to earlier are met.

37. The argument really concerns whether the property has been specified in the request

and whether it is “relevant property”. As I understood Mr Stanley's submissions, he did

not really dispute that the property had been specified. The real dispute concerns

whether or not the property is “relevant property”. Mr Stanley submits in effect that

whether property is “relevant property” as defined involves questions of assessment and

judgment and that the court and his client cannot be satisfied that the property is

relevant property without seeing the letters of request.

38. I am satisfied that the property is “relevant property” and I am satisfied that it is

“relevant property” on the basis of the material in Mr Templeman's affidavit. In my

judgment there is ample material in, and exhibited to, Mr Templeman's affidavit from

which it is clear that the property identified in the letters of request is relevant property.

Mr Hall took me to one example this morning in what I described as a “mini tracing

exercise” through the documents. It seems to me that there are reasonable grounds (and

Mr Stanley accepts that that is a lower threshold than clear evidence), to believe that that

property is “relevant property”.

39. Now, if that material satisfies me that there are reasonable grounds to believe that this is

relevant property, it seems to me that there is no need for the Blue Companies to see the

letters of request in order to satisfy themselves that the property is relevant property. Mr

Stanley’s clients do not attack Mr Templeman's credibility. I accept his evidence that the

property is property which is identified in the letters of request, even though I have not

seen the letters of request. I am also satisfied that it is relevant property, even though I

have not seen the letters of request. I am satisfied that without seeing the letters of

request that those two elements of the statutory requirements are met. It follows that I do

not accept Mr Stanley's submission that the letters of request have the centrality to this

application for which he contends. The existence of the letters of request, by which I am

satisfied on the basis of Mr Templeman's affidavit, is a precondition for making order

but in my judgment it does not have the central importance which Mr Stanley attributed

to it.

40. Now, given that I am satisfied of those matters without having seen the letters of

request, are Mr Stanley's clients nonetheless entitled to disclosure of the letters of

request? Mr Stanley is right in submitting that CPR Part 34.14(1)(b) of the CPR confers

on its face the broad entitlement to inspect documents which are referred to in, for

example, witness statements.

41. I assume without deciding that the letters of request are referred to in Mr Templeman's

statement. I have to say I am inclined to think that the letters of request are referred to in

general term in the witness statement. Mr Stanley submits that the normal position is

that key documents in a case are disclosed pursuant to CPR Part 31. He gives the

example of a contract in a contract claim. I of course accept that submission. I also

accept the submission from Mr Hall that the entitlement to inspect is not, however,

unfettered; see in particular the Danisco case, which I have already mentioned. I also

accept Mr Stanley's submission that there is a burden on the NCA to displace normal

rule that a party should have disclosure of documents which are referred to in court in a

witness statement.

42. The question is whether inspection is necessary for the fair disposal of the action. In my

judgment the NCA has satisfied me that Mr Stanley's clients have all the material that

they need in order to challenge the order, and, in particular, to argue, if they wish to, that

the property identified in the letters of request is not relevant property. It is notable, in

my judgment, that even with the material that they do have, no such challenge has in

fact been made. Mr Hall submits, and I accept, that the expectation based on custom is

that communications between foreign states are confidential, presumably for reasons of

international comity. It has been confirmed by the DOJ that it wishes to maintain the

confidentiality of these particular letters of request. The reason for not ordering

disclosure of letters of request, though in some cases it might yield to considerations of

justice, is that such letters are confidential. There are no such considerations in this case,

in my judgment, precisely because seeing the letters of request is not necessary for the

fair disposal of this application. For those reasons therefore I dismiss the application for

disclosure.

43. The variation application

44. Although there are I think some technicalities involved, in substance both sides agree

that the court has power to vary the order so as to provide for the payment from the

frozen assets of legal costs as sought by the Blue Companies. On the limited material I

have seen, I infer that Mr Bagudu is the settlor of both of the Blue trusts and that the

beneficiaries of both are his family. He is a discretionary beneficiary of one of the trusts.

I also infer from one of the documents I have been shown that he has received a

distribution from one of the trusts, and I infer that he exercises a degree of control over

the trusts. Mr Stanley asked me to make clear in this judgment, and I do so now, that the

material I have seen is limited, and that his clients dispute these inferences.

45. The question for me is whether the Blue Companies have discharged the burden of

persuading me that a variation to the order so as to permit payment of legal costs is just.

I have been referred to a number of cases and the position appears to be that no very

clear principle is disclosed by those cases. It seems that the court is entitled to have

regard to the history of transactions between the relevant parties, in particular to the pre-

order history; but it seems to me that all the history is relevant in that context.

46. Mr Stanley very fairly accepts that Mr Bagudu would be willing to fund the litigation.

He is willing to do so if there were no other sources of funds. The question, submits

Mr Stanley, is whether it is just that he should be required to do so when the assets

which have been frozen, and from which the costs would be paid are not his assets but

the trusts’ assets.

47. So far as the history is concerned, it is clear, whether by way of loan, or otherwise,

that Mr Bagudu has so far paid the costs of the application up until, I think, August

of last year. It is also clear, I consider, that he paid the costs of the freezing

injunction proceedings in the Commercial Court. So there is a history of Mr

Bagudu's having paid these costs voluntarily. Not only is there that history but there

are also the inferences to which I have just referred, which show that Mr Bagudu

has a very close connection with the Blue Companies and that his interests are very

closely aligned with the interests of the Blue Companies. I have no reason to think

that Mr Bagudu would not continue to pay the costs of the Blue Companies,

whether or not he is under any legal obligation to do so. It seems to me that there

are reasonable grounds to conclude that the funds to pay the costs would be

available from a source other than the frozen funds and that that source, on the

balance of probabilities, would be Mr Bagudu. It therefore seems to me that it

would not be just for me to allow the variation which is sought by the Blue

Companies. I refuse the application for variation.

48. The continuation of the order

49. It follows from what I have said that like Foskett J, I am satisfied that the three

conditions for making, and, in this case for continuing, the prohibition order are met. I

therefore order that the prohibition order continue. Subject to the provisions that were

discussed in the course of argument about the respondents who have not in fact been

served, I would make an order in the terms sought.

50. I should just deal with the question whether there should be an undertaking in relation to

service. Having heard what Mr Hall said about that in open court, I do not consider that

it would be appropriate for me to ask for the NCA to give an undertaking about service.

It is of course obvious that the liberty to apply which is contained in the original order

will continue in any event. Is there anything --

51. MR HALL: Thank you very much. We ought to draw up a draft order, send it to Mr

Stanley and forward it to your Ladyship for approval. Can I deal with costs? We got an

application for costs of the two unsuccessful applications made against us.

52. MRS JUSTICE ELISABETH LAING: Yes.

53. MR HALL: We are not applying for our costs in relation to the making of the order.

We are going to ask for those to be costs in the case.

54. MRS JUSTICE ELISABETH LAING: Thank you very much.

55. MR HALL: My Lady this schedule has a grand total on the penultimate page of £9,407.59.


57. MR HALL: I should apply to add to it because you will see that counsels' fees to the

hearing were, well they were in fact for half a day, a further £770 if you double mine

and double Mr Cook's. So the total we would seek is £10,177.59.

58. MRS JUSTICE ELISABETH LAING: Sorry £10,177 and --

59. MR HALL: 59p and we would ask that order will be made jointly and severally against

the 2nd, 5th and 6th respondents. Although the second respondent is not a party to the

disclosure application, he is the settlor and a beneficiary and exercises control and it

would be appropriate to make an order in the most effective way to ensure covering

those circumstances.

60. MRS JUSTICE ELISABETH LAING: Yes. Mr Stanley, what do you say about that?

61. MR STANLEY: I do not resist the costs order. There is a lot of unhappiness

from behind me and let me explain it to. It is probably my fault.


63. MR STANLEY: Your Ladyship has made in the course of her judgment two

inferences. I think three inferences in fact.

64. MRS JUSTICE ELISABETH LAING: Right.

65. MR STANLEY: They were all inferences which for the first time were put forward by

the NCA. There is no evidence put forward by the NCA to this effect but they were put

forward by Mr Hall in submissions. I didn't deal with them as I thought it was not

necessary to do so.


67. MR STANLEY: They are these: the first thing he says it is to be inferred

that Mr Bagudu it was the settlor.


69. MR STANLEY: In fact my Lady he is not and it does not matter to your Ladyship's

judgment but there is no evidence that he is the settlor. I cannot stop your Ladyship from

saying that you would draw that inference --


71. MR STANLEY: -- but it is a slightly unfair thing. It may matter a lot and the reason

why there is such uncertain unhappiness, is that it may be hugely hugely important in

the US proceedings where this may be a hotly contested issue. We did not come here

thinking that that was going to make the blindest bit of difference to any decision nor

were there any suggestion that anyone was saying that Mr Bagudu is the settlor.


73. MR STANLEY: The second inference that you drew was that from a distribution it was

inferred that a distribution was paid to Mr Bagudu. Not an inference that one could

draw in circumstances with respect where there are large number of beneficiaries of the

trust and again, I am told in fact wrong but I don't see that it makes any difference to

your Lordship's judgment and the third thing I think you said is that it was to be inferred

that Mr Bagudu exercised control over the trust and again it does not matter because it

is irrelevant entirely to the decision that your Ladyship made, but there is in fact no

evidence at all that Mr Bagudu exercise his control of how the trust conducts it

business.

74. The reason I raise those things now is that the profound concern from behind me is that

because I have not made the submissions that I have effectively just made in the course

of my reply submissions to Mr Hall (which is my fault), it will subsequently be said, oh

look, the English judge made these findings. These are binding on you. The English

judge has found that Mr Bagudu is the settlor and this will turn out to be a huge problem

and something which did not seem to matter for an application will --

75. MRS JUSTICE ELISABETH LAING: I do see that point.

76. MR STANLEY: And that is the reason I raise it now because I don't think I should

leave court without having tried to put right what was in fact my fault.

77. MRS JUSTICE ELISABETH LAING: No. You are quite right. What I will certainly do

when I come to correct the transcript is to make clear that those were inferences drawn

on the basis of very limited material and it was not an issue the case.

78. MR STANLEY: Yes.

79. MRS JUSTICE ELISABETH LAING: And this is an interlocutory application and

if anyone wants to rely on it for anything else, I thought (Inaudible) but anyway.

80. MR STANLEY: I think that needs to be made clear and if your Ladyship were able

to say or made it clear that we did not accept that, I think that is an important thing

to put on the record.


82. MR STANLEY: The reason I do not resist the order for costs being made against Mr

Bagudu, is not because he is the settlor or anything of the sort, it is because it would be

absurd to try to disentangle the costs of that application to which he was actually a party

from the costs of that application to which he was not. The remaining issue is

permission to appeal. I do not ask for permission to appeal in relation to the discretion

decision about variation of the injunction. I do ask for permission to appeal in relation to

a disclosure matter and the reason I do so is not to rehearse the argument who is right or

wrong about it.

83. MRS JUSTICE ELISABETH LAING: Sure.

84. MR STANLEY: But it is the first time that any application of this sort is being brought

before the court, and it is a point of some procedural importance for all parties in any

application of this sort, which is ever made, to know where everyone stands in relation

to the extent to which letters of request should be disclosed in procedures which may go

on rather rapidly. Not least important, one might think, for requesting parties to know

exactly where they were going to stand in relation to letters of request and so it is a

point which raises issues of some novelty which are not by any means unique to this

particular case. There is nothing special about this case which is going to mean that

those sorts of issues do not arise in the future and the principles are therefore important

principles. So I put the argument not so much to say well look my Lady has got it

wrong. You have already heard me say that and you do not agree with me.


86. MR STANLEY: But more to say it is a point of some importance.

87. MRS JUSTICE ELISABETH LAING: Yes. I forget what the exact languages are,

some other compelling reason. I can't remember.

88. MR STANLEY: You have to be satisfied in relation to -- to make it clear I am not

saying that it is not an arguable point.

89. MRS JUSTICE ELISABETH LAING: No. I understand that.

90. MR STANLEY: On appeal there are two grounds. One is that it is arguable and

the other is that it is very important. I am not saying it is unarguable but very

important. I am saying it obviously arguable both ways.

91. MRS JUSTICE ELISABETH LAING: No. I got that.

92. MR STANLEY: But the reason why your Ladyship should give permission is not

so much because your Ladyship sits there thinking I have just made a terrible

mistake because I do not suppose you do but because --

93. MRS JUSTICE ELISABETH LAING: I think I should resign if I did.

94. MR STANLEY: Indeed.

95. MRS JUSTICE ELISABETH LAING: Could you just remind me what the

precise language of the test is?

96. MR STANLEY: The relevant test would be in part 52.

97. MRS JUSTICE ELISABETH LAING: I do not (Inaudible). 98. MR STANLEY: And the appeal test --

99. MR HALL: 52.36.

100. MR STANLEY: That's right. So one has to see -- this is the first appeal and so

we are not looking at second appeals so it is 52.36, "Permission to appeal may only be

given where the court considers that an appeal would have a reasonable prospect of

success or there is some other compelling reason why the appeal should be heard."

101. MRS JUSTICE ELISABETH LAING: So I may be right.

102. MR STANLEY: That is absolutely right and so what I was saying I do say that the appeal has a real prospect of success which means it is arguable as a summary judgment type of --


104. MR STANLEY: -- approach but I also say if it tips the balance towards granting permission rather than refusing permission, that the particular reason why this is not just a kind of run-of-the-mill case-management decision where your Ladyship has exercised her discretion that there are points of principle.

105. MRS JUSTICE ELISABETH LAING: Yes. I have the point. So I think you have the note about costs. What about permission to appeal?

106. MR HALL: Well on the compelling reason why the appeal should be heard, where that is relied upon, in my submission that is really a matter for the Court of Appeal because really the court itself can say whether or not it is of wider importance, but it really, in my submission, turns on the first question whether the appeal would have a real prospect of success. I am going to genuinely submit that that has not been made out and actually what this case turned upon was analysis of the facts applying some reasonably straightforward principles and that is evident from the fact that your Ladyship did not feel necessary in fact to go into the intricacies of the case law. So, in my submission, this is not a suitable case for permission.

107. MRS JUSTICE ELISABETH LAING: Do you want to say anything in reply?

108. MR STANLEY: No.

109. MRS JUSTICE ELISABETH LAING: I think I am going to refuse permission. I think Mr Hall is right. I see on one analysis it might be said to raise an important point, but I think in the analysis I have adopted it does not. It just involves (Inaudible)a factual question about whether you need disclosure and I do not think you do.

110. MR STANLEY: In that case that is all I had. Thank you very much. I am sorry we overran.

111. MRS JUSTICE ELISABETH LAING: That is alright. If you do want to go to the Court of Appeal, do you want an expedited transcript?

112. MR STANLEY: We probably will need one or least since your Lordship gave judgment orally, we will need at least the transcript of the judgment.

113. MRS JUSTICE ELISABETH LAING: Yes, you will. If you want me to order an expedited transcript I will.

114. MR STANLEY: Can I ask you to do that?

115. MRS JUSTICE ELISABETH LAING: Yes. So if you can draw up between you an order that reflects everything. Thank you very much, both of you.

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