Zambia v Meer Care & Desai (a firm) & Ors Rev 1

This is an appeal brought with the permission of Mummery LJ against an order of Peter Smith J made on 15^th August 2005, refusing an application on behalf of the appellants for a stay of this action against them.

The action was brought by the respondent, the Attorney General of Zambia, against 20 defendants. The Attorney General expressly sues on behalf of the Republic of Zambia (“Zambia”). Zambia seeks to recover Government money said to have been misappropriated between 1996 and 2002 during the presidency of Dr Frederick Chiluba, who is the third defendant and one of the appellants. The defendants are said to have used false contracts to justify payments from Zambian Government funds to London bank accounts. The monies were then laundered, largely through London bank accounts operated by the first and second defendants, who are English solicitors’ firms, and through a company called Access Financial Services Limited (“Access”). The three conspiracies alleged by Zambia can be shortly summarised in this way.

The causes of action pleaded are conspiracy to injure and constructive trust based on knowing receipt and dishonest assistance. Of the 20 defendants, five are appellants in this appeal. The appellants are these: 1) Dr Chiluba, the third defendant, President of Zambia between 1992 to 2002; 2) Ms Stella Chibanda, the sixth defendant, a senior official with the Zambian Ministry of Finance; 3) Mr Aaron Chungu, the seventh defendant, a director of Access; 4) Mr Faustin Kabwe, the ninth defendant, chief executive officer of Access; and 5) Mr Francis Kaunda, the eleventh defendant, also a director of Access.

All the appellants are Zambian nationals. They are domiciled in Zambia and are at present in Zambia. As I have indicated, the first and second defendants, Meer Care and Desai, and Cave Malik respectively, are English firms of solicitors resident and domiciled in England. The eighth defendant, Mr Bimal Thaker, is a partner in Cave Malik and also resident and domiciled, I think, in England. It is the claimants’ case that pursuant to the Zamtrop conspiracy in particular, but also to the BK facility conspiracy, these defendants laundered a substantial amount of the misappropriated funds through Meer Care and Desai’s and Cave Malik’s client accounts held in London.

As to the third defendant, Dr Chiluba, it is said that he, his family and friends beneficially received substantial amounts of the misappropriated government monies. As to the fourth defendant, Mr Chungu, who was the Director General of the Office of the President at all material times during Dr Chiluba’s presidency, from 8 December 1995 he was one of two authorised signatories and from 22 July 1999 he was the sole signatory to the Zamtrop account. He was arrested but has, it is said, fled from Zambia. He is thought to be in the Congo. He is not at present playing an active part in the action.

The fifth defendant, Mr Shansonga, was Zambian ambassador to the United States between 2000 and 2002. He is a Zambian national who has been permanently resident in England since 1995. He is said to have received substantial amounts of misappropriated monies and to have owned or controlled a number of companies including the thirteenth defendant, MISSL, which were, it is said, used to launder the misappropriated funds.

As to the sixth defendant, Ms Chibanda, it is said that it was upon her instructions that most of the payments were made by the Bank of Zambia to the Zamtrop account. She was the recipient of monies misappropriated through the Zamtrop account, including cash payments in London and also of a payment to her son in Florida. She is also said to be involved in the Mofed and BK conspiracies.

The ninth defendant, Mr Kabwe, as I have indicated was the chief executive officer of Access and its wholly-owned subsidiary, Access Leasing Limited (“ALL”). His wife, the tenth defendant, was a 55% shareholder in Access.

The Kabwes, their children and companies which were owned or controlled by Mr Kabwe are said to have received substantial amounts of the misappropriated funds by payments to them in cash in London, by remittances to accounts in their names (in particular in New York) and by discharge of various liabilities, including their children’s school and university fees. The Access companies and in particular, Access, are said to have been the principal vehicles for the laundering of the stolen government monies both in England and in Zambia. A substantial part of the monies remitted to the Zamtrop account was remitted into the client accounts in London of the first and second defendants, where they were posted to ledgers in the name of Kabwe and/or Access. From there the monies were remitted or paid out in cash, either to third parties or to Access’ account held at the United Bank of Zambia in Lusaka.

Mr Kabwe is also said to be involved in both the Mofed conspiracy and the BK facility conspiracy. Mrs Kabwe is and has at all relevant times been resident in New York. She is said to have been the recipient of substantial amounts of stolen government monies.

The seventh defendant, Mr Chungu, and the eleventh defendant, Mr  Kaunda, were directors of Access and ALL and shareholders in Access. Mr Kaunda was chairman of the companies. Mr Chungu was, it is said, in effect the managing director of Access and ALL. Mr Chungu and Mr Kaunda, by himself and members of his family, are said to have been recipients in London of monies misappropriated through the Zamtrop account. Both gave instructions to Cave Malik and Mr Chungu also gave instructions to Meer Care and Desai in relation to the monies wrongly remitted to them from the Zamtrop account.

The twelfth defendant is a Mr Antonio Basile, trading as Boutique Basile, who is resident in Geneva. The fourteenth defendant, MISSL, is a BVI company. The fifteenth defendant is a company registered in the BVI and controlled by Mr Kabwe and/or Mr Thaker. The twelfth, fourteenth and fifteenth defendants have not, as I understand it, responded to service of these proceedings.

I need not refer to the sixteenth to twentieth defendants who, as I understand it, are no longer taking part in these proceedings after a short trial of an issue in August of last year.

Permission to serve the appellants out of the jurisdiction was given under three heads of CPR 6.20: 1) as necessary or proper parties to the claim made against other parties within the jurisdiction; 2) the claims being in the tort of conspiracy to injure with the damage resulting from acts committed in England; and 3) the claim being a claim against the defendants as constructive trustees by reason of knowing receipt or dishonest assistance with the receipt or assistance having taken place in England. The appellants initially challenged the jurisdiction of the English court, but did not pursue that challenge before the judge. It follows that it is not in dispute that the English court has jurisdiction to determine this action as between Zambia and the appellants.

The first four appellants, Dr Chiluba, Ms Chibanda, Mr Chungu and Mr Kabwe, are the subject of criminal proceedings in Zambia. They are unable to leave Zambia, having surrendered their passports as a condition of their bail. There are two indictments. The first indictment relates to Dr Chiluba, Mr Chungu and Mr Kabwe, and contains 12 counts. Those counts allege theft of US$693,000 and 68 million Zambian Kwacha, which is about US$28,800. The second indictment relates to Ms Chibanda, Mr Chungu and Mr Kabwe. I am not sure of the precise nature of the charges. As I understand it, although the charges in these indictments are narrower than the allegations in the civil proceedings, they traverse essentially the same ground. The trials of both indictments have begun. They are both being tried by the same magistrate. Such trials are not continuous in Zambia. We were told that the prosecution case in the first indictment should come to an end in April of this year but that the trial will not be completed until mid-2007. We were also told that the prosecution case in the second indictment, which has also begun, will end in the middle of 2006 and that, again, the trial will not conclude until about the middle of 2007. Thereafter there is scope for appeals to the High Court and then to the Supreme Court of Zambia. We were given no time estimates for those appeals.

On 24 November 2004, Zambia obtained a worldwide freezing injunction in the English proceedings in the amount of £13,500,000 against certain of the defendants, including three of the appellants, Dr Chiluba, Ms Chibanda and Mr Kabwe. That injunction has been extended until trial or further order. A Zambian company called Serioes Farms Limited is the subject of a restriction notice which was issued under Zambia’s Anti-corruption Commission Act 1996 on 28 May 2005. This prevents the company dealing with a particular property known as Serioes Farm. Mr Kabwe owns 90% of the shares in Serioes Farms Limited. However, we were told that agreement has been reached between Zambia and Mr Kabwe that Serioes Farms should be sold and the proceeds made available for the defence of these proceedings. We understand that Mr Kabwe, presumably on behalf of Serioes Farms Limited and on his own behalf, has agreed to make the proceeds available not only for his own defence and that of his wife, who is the tenth defendant, but also for the defences of the other appellants.

The appellants applied for a stay on three grounds: 1) because the appellants cannot travel to England for the purposes of the English proceedings, contrary to article 6 of the European Convention on Human Rights (“the Convention”) and to the ordinary principles of the common law, they will not have a fair trial if these proceedings continue; 2) England is a forum non conveniens; and 3) the English proceedings will prejudice the appellants’ ability to defend criminal proceedings in Zambia.

As I shall explain further in a moment, the forum non conveniens argument is not pursued in this appeal. At a hearing on 5 May 2005, Peter Smith J, who determined this application and is likely to be the trial judge, and to whom I shall refer as “the judge”, indicated that it might be appropriate for the English court to sit in Zambia to hear the evidence of the appellants and other Zambian witnesses as appropriate. Before the hearing of the application for a stay, the Zambian government consented to the English court sitting in Zambia in private for these purposes. It also suggested that the appellants could be faxed or e-mailed daily transcripts.

The appellants’ argument at first instance for a stay on the fair trial or article 6 point may be summarised thus: 1) appointing the judge as special examiner to take oral evidence in Zambia would not prevent a breach of article 6 because the judge could not compel the attendance of Zambian witnesses; and 2) even if they were faxed or e-mailed transcripts, the appellants would suffer prejudice in not being present in court in England and so being unable to instruct their lawyers in relation to the cross-examination of witnesses. There was a third point relating to funding to which I need not further refer because of the proposed sale of Serioes Farm.

The appellants’ argument at first instance that the English proceedings would prejudice them in their ability to defend the criminal proceedings was shortly to this effect: 1) documents and other information disclosed in civil proceedings might be used by Zambia in the criminal trial; 2) that being the case, the need to serve witness statements and provide disclosure in the civil proceedings would undermine the appellants’ right to silence in the criminal trial; 3) the appellants would be forced to reveal their line of defence; and 4) giving oral evidence and being cross-examined in the English civil proceedings would undermine the appellants’ defence in the Zambian criminal proceedings.

It is evident that these points are closely related. The judge dismissed the application on each of the three grounds. The appellants challenge his decision and reasoning, both on the fair trial or article 6 point, and on the prejudice to the criminal proceedings (or criminal prejudice) point. I will consider both the judge’s reasoning and the challenge to it in a moment, but it is first appropriate to say something about forum non conveniens.

As I said earlier, the judge rejected the submission that the action against the appellants should be stayed on the ground that England was a forum non conveniens. Although the appellants do not challenge that conclusion, I mention it because the judge’s reasoning in this respect seems to me to provide important background to the issues which are the subject of the appeal. The judge accepted Mr Blair’s submission on behalf of Zambia that the action is in reality focused in London and not in Zambia. He did so for these reasons, which he set out in paragraph 16 of his judgment:

“1)

The characteristic of the alleged fraudulent conspiracy involves payment of government monies into English bank accounts and their disbursement for the personal use of the defendants concerned.

2)

The bank accounts in question were English bank accounts.

3)

Each of the defendants was involved in giving instructions in respect of the remittance of monies to or from the English bank accounts and/or receiving substantial amounts of monies allegedly from the English bank accounts.

4)

Therefore, although the monies originated from Zambia and although part of the money was ultimately returned to Zambia, nevertheless, the conspiracy centred allegedly in London.

5)

A substantial part of the money allegedly stolen was not returned to Zambia, but was remitted to other accounts in England, Europe and the United States distributed as cash or used to discharge liabilities in England.”

The judge further correctly noted that the first and second defendants, both firms of London solicitors, have relevant evidence or are key witnesses in London and a substantial amount of documentary evidence is held both by them and by banks in London to which the monies were allegedly channelled. In paragraphs 20 to 24 of his judgment, the judge gave his reasons for concluding that it would be unsatisfactory for there to be two sets of civil proceedings, one against the appellants in Zambia and the other against the other defendants in England. In essence, he stressed the importance of avoiding inconsistent conclusions by different tribunals and in doing so, he relied upon The El Amria [1981] 2 Lloyd’s Reports 119 per Brandon LJ at 128 and Donohue v Armco Inc [2002] 1 Lloyd’s Reports 425 per Lord Bingham at paragraphs 33 to 34 and per Lord Scott at paragraph 75. In short, the judge held that there was no advantage whatever in splitting the civil proceedings between England and Zambia.

The appellants accept that analysis. They further accept that there is no question of the civil proceedings taking place wholly in Zambia and it follows that they accept, in my judgment properly and correctly, that the civil proceedings should take place in England. Although the judge did not refer to it, I note in passing that a number of the defendants, including the first, second, fifth, eighth and twelfth defendants, are domiciled in a state which is a party to the Conventions the terms of which are now set out in Council Regulation EC44/2001, which has the force of law in England. The effect of the decision of the European Court of Justice in Owusu v Jackson (t/a Villa Holidays Bal-Inn Villas) [2005] QB 801 is that the English court could not grant a stay of proceedings against those defendants in favour of a court in a state which is not a party to a relevant convention, including Zambia. In any event, none of the defendants other than the appellants applied for a stay.

It is fair to say that before the judge, and indeed before this court, Mr Umezuruike accepted that, other things being equal, it would be desirable for the whole of the action to be determined in one court. He submitted, however, that that was subject to the underlying requirement that each defendant has a fair trial, both in the civil proceedings in England and in the criminal proceedings in Zambia. I entirely understand that submission and it is to those questions that the two grounds of appeal are directed. However, it is now correctly accepted that the civil proceedings should, if at all possible, be heard in one jurisdiction, that there is no prospect of the proceedings taking place wholly in Zambia and that it follows that a practical solution must be found consistent with fairness to all parties, including the appellants, which involves the proceedings being determined in England.

In his skeleton argument on behalf of the appellants, Mr Umezuruike identifies two issues in the appeal as follows:

“1)

Whether the order made by the judge is sufficient to remove the prejudice to the appellants’ ability to defend the criminal proceedings in Zambia that has been occasioned by the continuance of the English civil proceedings; and

2)

Whether the orders made by the judge are sufficient to prevent a breach of the appellants’ right to a fair trial of the English civil proceedings under article 6 of the Convention.”

I take these issues in turn.

Before the judge, Mr Umezuruike submitted that Zambia might use the civil proceedings here in order to learn the details of the appellants’ defences at a much earlier stage than they would in the criminal proceedings. He also submitted that the appellants might in practice have to give evidence in these proceedings which could be used against them in Zambia. The judge’s conclusions on this point are put shortly and succinctly in the first part of paragraph 16 of his judgment as follows:

“There is a short way to deal with this as I indicated in argument. It is to ring fence the English proceedings. Thus the proceedings take place in private and an order is made that none of the evidence adduced by the defendants can be used against them in criminal proceedings nor any of the documents disclosed by them in these proceedings be used in the criminal proceedings unless they agree or the court otherwise orders. The result would therefore be that there could be no possible abuse of the criminal proceedings and the defendants’ right to silence and the way in which they conducted their criminal defences.”

It is common ground that where the judge said, “or the court otherwise orders” he was referring to the English court. In this appeal, Mr Umezuruike does not submit that the appellants would not be protected if Zambia effectively ring fenced the English proceedings in the way envisaged by the judge and, as indeed Zambia said it would. His point is that there is a risk that Zambia will not comply with the ring fencing order. His submissions are concisely set out in paragraph 7 of his written submissions upon which he relied in the course of his oral argument yesterday:

“1)

The claimant is a nominal claimant who brings the action on behalf of a sovereign state, the republic of Zambia.

2)

The incentive for complying with the order ring fencing the evidence in the English civil proceedings is the continuance of the English proceedings. A breach of the order would lead to the claim being struck out or stayed.

3)

When the English proceedings come to an end, there will be no incentive for the Zambian Attorney General, either the present one or a future one, to continue to abide by the order of 10 October 2005, the ring fencing order.

4)

If there is a change of government in Zambia, the next Attorney General might not feel inclined to abide by the ring fencing order. If he breached the order, it might be impossible to punish him for contempt. He would be likely to plead that the order was made against his office and not his person. He might also claim sovereign immunity.

5)

The judge ought to have stayed the English proceedings until the conclusion of the criminal proceedings in Zambia. The ring fencing order will not be sufficient to protect the appellants in any criminal proceedings that are continued against them after the conclusion of the English proceedings.

6)

It is therefore submitted that the judge erred in law by concluding that ring fencing the evidence in the English proceedings will prevent prejudice to the appellants’ ability to defend the criminal proceedings in Zambia.”

The question is thus whether there is a risk that Zambia will not honour the ring fencing order. The judge rejected that submission in paragraph 35 of his judgment, saying that he did not regard the suggestion that the Attorney General would give undertakings and not comply with them as credible. He noted that through his counsel, Mr Blair, the Attorney General had indicated that he was willing to submit to restrictions along the lines envisaged by the judge. Mr Umezuruike submits that the judge was wrong so to hold.

This aspect of the case has been further discussed in the course of the hearing in this appeal. The judge’s judgment was handed down on 7 October 2005 and the judge made the ring fencing order, which included many other matters, on 10 October 2005. The ring fencing order included paragraphs 18 and 21 as follows:

“18.

Without prejudice to CPR 31.22 without the permission of the court as to which the parties are to be at liberty to apply, no documents disclosed by any of the defendants including but not limited to any documents read to or by the court or referred to in any hearing held in public, may be used for any purposes including but not limited to the conduct of investigations and/or civil and/or criminal proceedings in Zambia or any other country other than these proceedings.

21.

Without prejudice to CPR 32.12 without the permission of the court as to which the parties are to be at liberty to apply, no witness statements served by any of the defendants may be used for any purposes including but not limited to the conduct of investigations and/or civil and/or criminal proceedings in Zambia or any other country other than these proceedings.”

Mr Umezuruike submits that those orders are not sufficient both because of their terms and because they lack teeth. As to the first point, May LJ pointed out in the course of the argument that paragraph 21 refers only to witness statements and not to oral evidence. Moreover, there is no reference to the pleadings or indeed to the trial being held in private. However, in the course of argument yesterday, Mr Blair made Zambia’s position very clear. He recognised that in order to ring fence the proceedings, the judge envisaged that the proceedings would take place in private and that an order would be made that no evidence given or documents disclosed would be used against the appellants in the criminal proceedings. Mr Blair told us that Zambia expressly accepted that position and that it would be appropriate to reflect those features in appropriate orders at the next case management conference which will, I think, take place in April.

Thus an order will be made then to ensure that the trial will be in private and that no use will be made of any pleading, document, witness statement or oral evidence filed, disclosed, served or given in these proceedings. Moreover, the order should include an undertaking to that effect. I note in passing that it is envisaged that the trial will take place this summer.

To my mind those provisions should provide appropriate protection for the appellants, at any rate if Zambia can be relied upon to obey the order and honour its undertaking to do so. I see no reason why it should not do so. Zambia is, of course, a member of the Commonwealth. In any event, through Mr Blair’s skeleton argument, Zambia made its position quite clear as follows:

“The Attorney General (as the appellants recognise) sues in a representative capacity for an on behalf of the Republic of Zambia. Under the State Immunity Act 1978 a state is immune from the jurisdiction of the courts of the United Kingdom (section 1(1)). A state is not immune as respect of proceedings in respect of which it has submitted under jurisdiction of the courts of the United Kingdom, (section 2(1)). A state is deemed to have submitted if it has instituted the proceedings, (section 2(3)(a)). As claimant therefore, Zambia has submitted to the jurisdiction of the English court in respect of these proceedings. The ring fencing order itself remains binding following the English proceedings and Zambia remains amenable to contempt proceedings for any breach of the order.”

Mr Blair repeated those submissions in oral argument. Moreover he expressly added, as I noted it, that Zambia undertakes to be liable for contempt for any breach of the order, including the proposed order to which I have referred, and of the undertaking to which I have referred, even on a change of government in Zambia. It is, after all, the state of Zambia which is bound by the order and gives the undertaking. Of course there are no absolute guarantees in this life, but I have reached the conclusion that in these circumstances, on the particular facts of this case, there is no significant risk to the appellants if the civil proceedings continue on this basis. I would therefore dismiss the appeal on this first ground.

I should note in passing that Mr Umezuruike expressly stated that if this court reached that conclusion on this point, he did not submit that there was any other basis for holding that there was a risk of prejudice to the appellants in the criminal proceedings in Zambia. I stress this because every case turns on its own facts. As I have indicated in this appeal, Mr Umezuruike takes a very narrow point. Apart from that point, he does not say that the fact of the civil proceedings being heard in England before completion of the criminal proceedings in Zambia infringes the appellants’ right to a fair trial.

I note this in passing because there might be cases in which it would be appropriate to stay civil proceedings until the criminal proceedings had been determined. The court has a discretion to grant such a stay as recognised by section 49(3) of the Supreme Court Act 1981, provided that justice requires it: see Jefferson Limited v Bhetcha [1979] 1 WLR 898 per Magaw LJ at 905H. It “is a power which has to be exercised with great care and only where there is a real risk of serious prejudice which may lead to injustice”: see R v Panel on Takeovers and Mergers ex parte Fayed [1992] BCC 524 per Neill LJ at page 531. What has to be shown is the causing of unjust prejudice by the continuance of the civil proceedings: Panton v Financial Institutions Services Limited [2003] UKPC 95 at paragraphs 11 and 15.

It may be that there will be cases where, as here, the claimant in the civil proceeding is or is in effect also the prosecutor in criminal proceedings, in which it will be appropriate for such a stay to be granted. I would accept Mr Umezuruike’s submission that that fact distinguishes cases of this kind from the much more usual case where the claimant in the civil proceedings is quite different from the prosecutor in the criminal proceedings. However that may be, it is not submitted in this appeal that the judge erred in principle in seeking to ring fence the proceedings in the way he did, but only that there were not sufficient safeguards against a future Zambian government failing or refusing to comply with the undertaking or the ring fencing order. For the reasons I have given, I am unable to accept that submission. I turn to the second issue identified by Mr Umezuruike.

The point here is different. Mr Umezuruike submits that the appellants cannot have a fair trial in England because, thanks to the terms of their bail, they cannot leave Zambia and thus attend the trial in England. In particular, they cannot give evidence here and cannot instruct their solicitors and counsel in person. He submits that their rights are infringed, both their rights under article 6 of the Convention and their common law rights. He further submits that in these circumstances the court should stay the English proceedings, at any rate for the time being. Mr Umezuruike made the same submissions to the judge. The judge rejected them for these reasons.

Mr Umezuruike submits that the appellants will be unfairly prejudiced by comparison with other defendants. He submits that the steps contemplated by the judge, which involve either evidence by video or the judge himself travelling to Zambia, should be contemplated only as a last resort. He submits that this is not such a case. He relies in particular now on a proposal made shortly before the appeal began yesterday morning on behalf of the appellants other than Dr Chiluba. That proposal is that the Attorney General should not oppose a relaxation of the appellants’ bail under which the appellants would be permitted to travel to England to attend a trial and in return will give an undertaking to the court, that is this court: 1) to surrender their passports to the court or to the authorities on arrival; 2) to reside at particular addresses while in England; 3) to notify the police of any proposed change of address; 4) to report daily or as appropriate to the police; 5) at the end of the trial, to submit to be escorted to an aeroplane back to Zambia; and 6) to sign an undertaking not to challenge extradition to Zambia.

Instructions were taken from Dr Chiluba during yesterday morning. His position is that he is still taking advice on the proposals. The present position is thus that there is no firm proposal on behalf of all five appellants. However, Mr Umezuruike submits that the proposals are both satisfied and satisfactory in the case of the four appellants other than Dr Chiluba and that the court should grant a stay unless Zambia agrees not to oppose an application for a variation of their bail conditions on behalf of the four appellants other than Dr Chiluba and that Dr Chiluba should be given a reasonable opportunity to take the same course.

We asked Mr Blair to take instructions on the proposals. He did so but having done so submits that they are unworkable. He submits that the bail conditions were imposed because the court in Zambia perceived a risk that in the absence of such conditions, the defendants would or might abscond and that in case of two defendants, not the appellants, their fears were justified. Mr Blair submits that the proposed conditions do not provide sufficient safeguards, since the appellants would not be detained or be under the tight control of the authorities in England and could abscond without much difficulty once they were here. Although I was at first attracted by a solution along the lines proposed, I have reached the conclusion that the risks adverted to by Mr Blair are real and that it would not be right to order a stay of the action unless Zambia agrees to the proposals. I would, however, add this. It must be recognised that these proposals were made only yesterday and that the Attorney General has had very little time to consider them. It may be that a more watertight proposal could be made and that the parties could make a sensible agreement as to the way forward on the basis of such a proposal.

I say that because it would be in everyone’s interest if the trial could proceed in England in the ordinary way. That is because Mr Blair has accepted that the cost of making video arrangements and/or the cost of the judge taking evidence in Zambia will be very considerable and will have to be met by Zambia in the first instance. Moreover, as appears below, the necessity to take instructions from the defendants in Zambia in the course of the trial may cause delay and expense. It would be preferable if all those costs and that delay could be avoided.

However that may be, as matters stand at present, the right course is in my judgment for this court to consider the appeal against the decision of the judge on the basis of the evidence and submissions which were put to him. Was the judge justified in holding that the appellants would each receive a fair trial on the basis proposed in his judgment? In my opinion, he was. It is submitted that a defendant in a civil trial is entitled to attend the trial so as to be able, if he wishes, to give evidence and to give instructions. Other things being equal, I would accept that submission, but that is not an absolute right.

The irreducible minimum is that every party is entitled to a fair trial, both under article 6 of the Convention and at common law. The question in any case is whether, viewed as a whole, the trial process is fair. I am not persuaded that a party to civil proceedings has a right to be physically present throughout. No authority has been cited to us in support of such a proposition. We were referred to paragraph 4.6.28 of the second edition of the Human Rights Law and Practice by Lester and Pannick where they say this:

“The European Court of Human Rights has held that the right to adversarial proceedings means, in principle, the opportunity to have knowledge of, and comment, on all evidence adduced or observations filed, even by an independent member of the national legal service with a view to influencing the court’s decision. In civil cases, however, the right of a party to be present at the hearing has been held to extend only to certain kinds of cases such as cases which involve an assessment of a party’s personal conduct.”

The editors cite as authority for that last proposition Muyldermans v Belgium (1991) 15 EHRR 204 at paragraph 64. However, in my judgment neither that decision nor any other case to which we have been referred is authority for the proposition that a party to civil proceedings has a right to be physically present throughout. In Muyldermans the applicant was an accountant in the Belgian post office. After a sum of Belgian francs disappeared from the cashier’s desk over which the applicant had charge, and for which disappearance no adequate explanation could be found, the post office authority determined in an administrative, non-adversarial and closed procedure, in the absence of the applicant, that he should reimburse the post office for the deficit. The applicant claimed that such proceedings violated article 6 of the Convention. By a majority, the Commission held that the proceedings did indeed violate article 6(1). Their reasoning can be seen in paragraph 64 as follows:

“However the procedure followed before the audit court was clearly not adversarial although this is one of the principal guarantees of a judicial procedure. Before convicting the applicant the audit court did not hear her or summon her to appear, nor would it seem she had been invited to present supplementary observations. Since the applicant’s personal conduct directly contributed to the formation of the audit court’s opinion, the Commission considers that the right to a fair hearing in the particular circumstances of the case necessitated direct consideration by the court of the applicant’s grounds of defence.”

Article 6, which is entitled “Right to a Fair Trial”, provides so far as material as follows:

“1.

In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment should be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a demographic society, and where the interests of juveniles or the protection of the private life of a party so require or to the extent strictly necessary in the opinion of the court and in special circumstances where publicity would prejudice the interests of justice.

2.

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.

Everyone charged with a criminal offence has the following minimum rights … (c) to defend himself in person or through legal assistance of his own choosing or if he has not sufficient means to pay for legal assistance, to be given it free where the interests of justice so require …”

The key point is that each party must know what the case against him is and be able fully and properly to answer it. It is plain from the judgment in this case that the judge will ensure that each of the appellants can do precisely that. Moreover, the appellants will be represented throughout and thus will be present either in person, when they give evidence through a videolink or in Zambia or through their solicitors and counsel. The judge will be astute to ensure that each appellant is able to give instructions to his lawyers in London. If there prove to be difficulties in communication between Zambia and London, and if at any stage one of the appellants’ counsel or solicitors needs time to take instructions, it is plain that the judge will afford him a reasonable time in which to do so. I do not think that there is any risk that any of the appellants will not receive a fair trial because he is not able to give instructions in person.

As to that the appellants’ own evidence, as the passage from the judgment of the judge which I have quoted shows, each appellant will be able to give evidence either by videolink or in person to the judge. Evidence by videolink is becoming more common, perhaps as the links become more reliable. See e.g. Polanski v Conde Nast Publications Limited [2003] EWCA Civ 1573 where Thomas LJ said this at paragraph 60:

“The improvements in technology are such that in my recent experience as a trial judge, the giving of evidence by video conference link (VCF) has become by 2003 a readily acceptable alternative to giving evidence in person, provided there is a sufficient reason for a party from the normal rule that witnesses give evidence in person before the court. In the ordinary run of cases, a sufficient reason may easily be shown. If there is sufficient reason, then even in cases where the allegations are grave and the consequences to the parties serious, the giving of evidence by VCF is now an entirely satisfactory means of giving evidence in such cases. Examples can be seen in the statutory regime permitting young and vulnerable witnesses to give evidence in this way in criminal cases and in civil cases as trials such as de Molestina v Noba [2002] EWHC 2413 (Comm) (see the observations of Langley J at paragraph 24.)”

The Court of Appeal held that Mr Polanski could not give evidence at all but, after his successful appeals in the House of Lords, as I understand it he did give evidence through the videolink from Paris, or at any rate, from France. The Peer International Case, albeit on very different facts, is a recent example of evidence given on commission out of England before the trial judge. In my judgment, evidence given either by video or on commission in Zambia is consistent and not inconsistent with a fair trial.

I should perhaps add that Mr Head submitted on behalf of the first defendant that it would be preferable from the other defendants’ point of view to have the whole trial, including all the evidence, in England. I see the force of that submission but the judge had to balance the interests of all the parties and the interests of justice. For the reasons I have given he came, in my opinion, to a fair and balanced conclusion with which this court should not interfere. In reaching my conclusion, I have tried to step back from the detail of this unusual case and to reach a conclusion as to whether there is a risk that, if the trial proceeds as contemplated by the judge, there is any significant risk of the appellants not receiving a fair trial here. I have reached the conclusion that there is not. For these reasons, I would dismiss the appeal on both grounds.

I agree that this appeal should be dismissed for the reasons given by the Master of the Rolls. The appeal is brought on a relatively narrow basis. Mr Umezuruike raises two issues. The first issue is whether the order made by the judge is sufficient to remove prejudice to the appellants’ ability to defend the criminal proceedings in Zambia deriving from the active continuation against them of the civil proceedings in this jurisdiction. This really boils down to the question whether the existing and future ring fencing orders are to be seen as sufficient and fair to prevent the use in and in relation to the criminal proceedings in Zambia of documents, statements, evidence and other material which may come into existence in the English civil proceedings.

To exemplify this point, can the court be satisfied that the ring fencing will prevent evidence given by the appellants in the civil proceedings from being used against them in the Zambia criminal proceedings? I am persuaded that the judge in England can and will make orders and arrangements which, assuming they are complied with, will fairly achieve this. Whether they will be complied with centrally concerns whether the orders are capable of being enforced in this jurisdiction against Zambia. It is clear that Zambia has submitted to the jurisdiction of this court for the purposes of the State Immunity Act 1978. Insofar as this by itself might not be sufficient under sections 1, 2 and 13 of the 1978 Act to enable this court to enforce its orders against Zambia, as to which I say nothing, I am satisfied that Zambia will give a sufficient written consent. It will be for the judge to deal with the details of this and my agreement that this appeal should be dismissed assumes that he will do so.

The second issue raised by Mr Umezuruike is whether the judge’s orders are sufficient to prevent a breach of the appellants’ right to a fair trial in this jurisdiction under article 6 of the European Convention on Human Rights. The case is that the requirement by the Zambian authorities that the appellants surrender their passports is now the main impediment to the appellants’ ability to travel to England to be present at the trial. Unless the appellants are enabled to come to England for the trial, the trial will not be fair. The judge’s order will admittedly enable the appellants themselves to give evidence in Zambia, but the judge as examiner will have no power to compel the attendance of witnesses in Zambia and, importantly, the appellants will not be present in person for the proceedings in England. They will not hear the evidence and submissions and will not be able to give instructions on the spot to their legal representatives. Videolinks and transcripts are not, it is suggested, a fair substitute for personal attendance.

Zambia is not prepared to take steps to alter the appellants’ bail conditions. I am satisfied that this taken alone is a reasonable position for Zambia to take, for obvious reasons. It is entirely understandable and credible that Zambia should see the risks of relaxing the bail conditions as unacceptable. It is equally understandable and credible that Zambia should be seriously concerned about the practical difficulties of enforcing the appellants return to Zambia.

I see no force in the point that the judge will not be able to compel witnesses in Zambia. The short point here is that potentially unwilling witnesses in Zambia are intrinsically more likely to attend for examination in Zambia than they would be to attend in England. The appellants themselves will be able to give their own evidence in Zambia. As to the submission that it would be unfair for the English proceedings to take place in the personal absence of the appellants, on the one hand the proceedings are properly brought in this jurisdiction against these appellants and, on the other hand, it is reasonable for Zambia to decline to take steps to relax the bail conditions. The disadvantages that this brings to the appellants are, in my view, largely overcome by the arrangements which the judge has indicated. The disadvantages are not, I grant, entirely overcome, as the judge recognised, but at this point in the argument the court is concerned with striking a fair balance.

I am persuaded that in the modern electronic world, defendants in civil proceedings do not have an absolute right to attend every part of a hearing personally. I am also persuaded that the prejudice which would occur if the civil trial were stayed, inevitably against all defendants, for an indeterminate time, until the conclusion of what appear likely to be extended criminal proceedings in Zambia, is capable of being sufficient for the balance to fall against the appellants. It was open to the judge to reach the conclusion that he did, and I do not consider that this court should interfere with the judge’s discretionary decision.

I agree with the Master of the Rolls that it may possibly become appropriate for the judge to reconsider the whole or part of the present proposed arrangements, but as things stand presently the appeal should be dismissed.

I agree with both judgments.