Australia and New Zealand Banking Group Ltd v Compagnie Noga D'importation Et D'exportation SA & Anor

This action has emerged out of separate proceedings commenced some years ago by the First Defendant and now pursued in the names of the First Defendant and Mr Gaon as its assignee. The trial of those proceedings started on 16 January 2007 before Cresswell J.

The background can be briefly summarised as follows. In 1979, the USSR and Nigeria concluded a deal relating to a construction project in Nigeria and, as part of this deal, Nigeria issued a series of bills of exchange. Problems arose with the result that the Russian Federation (successor to the USSR), acting through the Ministry of Foreign Economic Relations which acted in turn through a government owned entity called Tyazhpromexport (“TPE”), was left with a number of the bills under which no payment had been received.

It is the case of the Defendants in the present proceedings (“Noga”) that in 1992 they concluded a contract with TPE by which it became the owner of the bills or at least obtained a proprietary interest in the bills or their proceeds. The face value of the bills was over DM1.8 billion. At all events Noga did not get possession of the bills (or indeed the proceeds) from TPE.

In 1996 a transaction took place whereby TPE sold the bills to Parnar Shipping Corporation, a company in which it is said that a number of Russian Government ministers had an interest. Parnar thereafter sold the bills to Mecosta Securities Inc (a company in which it is said that there were substantial Nigerian interests, in particular the family and friends of its then President General Abacha). Mecosta sold the bills to Nigeria. Sizeable profits were made by Parnar and Mecosta on their respective sub-sales.

The Claimant (“ANZ”) acted as arranger and escrow bank in respect of this transaction: it held on to the bills pending completion and it was the conduit by which the funds were transferred in September 1996 and the profits distributed (including ANZ’s own fee).

Noga commenced proceedings arising from all this in 1999. There were two separate actions:

The points of claim in 1999 Folio 404 included some factual allegations relating to ANZ’s role in the 1996 transaction. In particular, paragraph 44 set out how the relevant funds had been distributed by ANZ including a sum of DM36 million which had been retained. In respect of this retention the allegation was as follows: -

“Such retention was extraordinary, was not made in the ordinary course of banking business and was not referable to such bankingservices as were rendered. Without prejudice to the generality of the foregoing, Noga will contend that a normal fee of a bank for taking and dispersing a large fiduciary of deposit would have been not more than about 0.25% of the deposit in this case about DM 1 million.”

The next paragraph of the points of claim went on as follows: -

“45.

In all the circumstances there should have been in the ordinary course of banking business detailed enquiries by ANZ prior to receipt of assets by them as to the source of the funds, how they had been obtained and whether those claiming to deal with them were acting illegally or improperly.”

The position of ANZ was that this pleaded case did not appear to be asserting any substantive cause of action against ANZ. So far as the allegation that the fee was extraordinary is concerned, it was not pleaded that ANZ drew or ought to have drawn any particular conclusions from this and, as regards the allegation that they needed to make detailed enquiries, it was not said that the enquiries actually made by ANZ fell short of the appropriate standard, still less that ANZ had made a deliberate decision not to make the necessary enquiries or were otherwise on notice that some form of fraud was involved.

ANZ duly served the points of defence which so far as material read as follows:

“18.

As to sub-paragraph 44(d):-

(1)

It is admitted that a fee was retained by ANZ of DM36, 717,337.56 i.e. 2% of the face value of the bills of exchange, for its own benefit and as a fee for services rendered. No retainer fee or expenses were paid to ANZ in connection with its services, which are particularised below.

(2)

It is denied that such retention was extraordinary and/or was not made in the ordinary course of banking business and/or was not referable to such banking services as were rendered.

(3)

No admissions are made as to the allegation that a normal fee of a bank for taking and disbursing a large fiduciary deposit would not have been more than about 0.25% of the deposit, i.e. about DM 1,000,000.

(4)

The role of ANZ was not merely that of taking and disbursing a deposit, but was analogous to that of arranging a corporate finance transaction for which an arrangement fee is payable on successful conclusion of the transaction but not otherwise.

(5)

ANZ was first approached in relation to the transaction by Seawave/Parnar in about autumn 1995.

(6)

ANZ introduced Parnar to Mecosta, resulting in a Memorandum of Understanding being entered into by Parnar and Mecosta of 2^nd April 1996, on the express basis that ANZ were to be the arrangers of the transaction.

(7)

As arranging bank, ANZ was responsible for moving the transaction forward, meeting and/or corresponding with Foreign Economic Association “Tyazhpromexport”, Parnar, Mecosta and the Nigerian Federal Ministry of Finance in order to ensure that the relevant sale and purchase agreements between Foreign Economic Association “Tyazhpromexport”, Parnar, Mecosta were concluded and executed.

(8)

The total period of ANZ’s involvement in the transaction therefore was approximately 1 year. During this period, very substantial amounts of time were spent on the transaction by Mr. Markovic and Mr. Raeder, on a regular basis, under the overall supervision of Mr. Coombs. Furthermore, substantial expenses were also incurred by ANZ in arranging the transaction.

(9)

ANZ negotiated its fee on an arm’s length basis, with ANZ seeking to obtain the maximum fee possible. In the event, the fee that ANZ succeeded in obtaining was 2% face value of the bills, as evidenced by the agreement between ANZ and Parnar dated 2^nd May, 1996.

(10)

Save as aforesaid, sub-paragraph 44 (d) is denied.

19.

As to paragraph 45 of the Points of Claim: -

(1)

ANZ made enquiries of the matters referred to.

(2)

The source of the funds received by ANZ was Deutsche Bundesbank, for the account of the Bank for International Settlements, for the account of the Central Bank of Nigeria.

(3)

Accordingly it is self evident that the funds were the property of the Federal Republic of Nigeria.

(4)

Those dealing with the funds i.e. making the payment to ANZ out of the Central Bank of Nigeria were the Nigerian Federal Ministry of Finance, as was expressly confirmed to ANZ by the Minister by a letter dated 10^th May 1996, sent by ANZ to the Ministry and counter-signed by the Minister (and is again self-evident from the fact that the source of the funds was the Central Bank of Nigeria, via the Bank of International Settlements).”

Having served this defence and having earlier dealt with the Norwich Pharmacal application, ANZ assumed that they would no longer be involved in the action. However, five years later ANZ was informed by Noga that it intended to apply to amend its pleadings so as to make new allegations against ANZ for the purposes of a substantive claim based on allegations of knowing receipt and knowing assistance. These new allegations were to include express allegations that ANZ had acted dishonestly.

This development had two separate consequences. First ANZ stated that it would seek an order for security for costs against Noga on the basis that Noga appeared to be insolvent. This was intimated in July 2004. Noga’s reaction was to assign its cause of action to Mr Gaon on 14 September 2004 and then argue successfully that, as Mr Gaon was domiciled in Switzerland (i.e. a Lugano Convention state), it was not possible to order security for costs against him. This inevitably gave rise to concern on ANZ’s part that in the event they succeeded at any trial their substantial costs would not be recoverable.

Noga’s application to amend, which was made on 13 October 2004, was successfully resisted by ANZ. The basis of this was the potential time bar defence. The amendment was spelt out in draft paragraphs 59 (A) and (B). Further information was also volunteered in relation to these two paragraphs in response to a complaint that the allegations were insufficiently particularised. It is common ground that following the refusal for leave to amend this further information also fell away.

However the further information also purported to enlarge upon the existing paragraph 44(d). It contained the following passage: -

“Noga will say that ANZ is not to be treated as a bona fide purchaser for value without notice in relation to its fee for the reasons set out in paragraph 59 and 59(b) of the amended points of claim. Noga will also say that Parnar’s willingness to agree to pay such a fee ought to have put a prudent bank on enquiry as to the legitimacy of the transaction and that ANZ through its officers including Christopher Raeder, Milan Markovic and Mr Coombs was in fact aware that the transaction was fraudulent and involved conferring corrupt benefits upon persons who had no legal entitlement to benefit from the May 1996 transfer.”

It was suggested by the Defendants that this enlargement upon the allegations in the original paragraph 44 of the points of claim survived the refusal of leave to amend. I do not agree: it seems clear to me that the allegations were expressly parasitic upon the proposed amendment in paragraphs 59(A) and 59(B) and fell away with them.

In the meantime, however, Noga had commenced a fresh action against ANZ , namely 2004 Folio 630. In rejecting the amendments, the court held that Noga was entitled to advance the new claims in this new action, although of course ANZ would again be able to run its time bar defence.

It is right to note in passing that Noga was given permission to serve a reply in Folio 404 in the form of a draft furnished to the court. Whilst this draft reply (as also amplified by the further information referred to above) asserted the same or similar factual issues as regards the honesty of ANZ as contained in the proposed amendment, it has to be borne in mind that Langley J gave leave to serve the reply in a very restricted context: -

Thereafter, in April 2005, Noga entered into a settlement agreement with ANZ. The clause within that agreement which has been the focus of the submissions in this application is as follows: -

On the first day of the trial the judge (Cresswell J) had his attention drawn by counsel for the claimants to a letter written by Mr. Raeder of ANZ to Mr. Bagudu on 17 April 1996: -

“I thought it might be useful to reiterate on paper what we suggested the Minister should say to the Ambassador…. First, re-emphasise that budget constraints etc make it quite impossible for the Nigerian company/Nigeria to pay any of the debts”.

In this context, a submission was made by Mr. Gee QC for Noga that the alleged impossibility of effecting payment by reason of budgetary restraints was “plainly not going to be true”. The learned judge then asked “are you saying that Mr. Raeder was acting honestly or dishonestly”. Mr Gee responded: “Can I say there is confidential settlement agreement here between Noga and ANZ which imposes certain obligations on Noga and I do not intend to go against those in relation to how I present this case. So I do not intend to say anything about ANZ’s position.”

There then ensued a discussion as to the question of disclosure of the settlement agreement. This discussion concluded with the trial judge saying: “It is one thing to consider whether Mr. Pollock should see the document or not but you are making serious allegations in this case. One of the points I think Mr. Pollock’s side rely on is the fact that there were professionals engaged. I think two firms of solicitors and here we have an international bank. I think you are about to tell me what your position is in relation to ANZ. It may be much easier from your point of view if the document is disclosed.”

Following that exchange the Claimants issued an application in Folios 404 and Folio 405 to the effect that: “the Claimants through their counsel should be at liberty to present the claimants’ case on the facts in relation to ANZ and its participation in the Ajaokuta bills of exchange buy back transaction and/or the participation of individuals connected with ANZ in relation thereto including but not limited to Mr. Raeder, Mr. Markovic and Mr. Coombs free from any apparent purported constraint imposed by the contract on the claimants and without prejudice to the generality of [the above] the claimants through their counsel should be permitted to make factual submissions notwithstanding that those submissions involve a contention that ANZ and/or one or more individuals connected with ANZ in fact conducted themselves dishonestly because it is just and appropriate in the interests of the administration of justice for such a direction to be given so that the trial can be conducted fairly.”

This was countered by the Part 8 claim issued by ANZ with which the court is presently concerned. ANZ seek a declaration that clause 9 of the settlement agreement is “valid and effective”. ANZ also seek an injunction restraining Noga from making allegations of dishonesty on the part of ANZ, together with an order that Noga should apply to strike out certain parts of the pleadings in Folio 404 as concerned ANZ.

There was some debate as to the background against which it was legitimate to construe the settlement agreement. In my judgement the information reasonably available to the parties was as follows:

The Clause must be construed not only against the background outlined above but also in the context of the settlement agreement as a whole. The relevant Clauses are as follows:

SETTLEMENT

This agreement is in full and final settlement:

PROVISION OF DOCUMENTATION

Pursuant to the order of Langley J OF 10 March 2005 ANZ is obliged to give disclosure on a “Peruvian Guano” basis of all documents in its power, possession or control relevant to the issues in 2004 Folio 630. The Parties have agreed to disclosure by ANZ of a limited number of documents being those listed in Schedule 2 to this agreement, or in addendum to be provided to Stephenson Harwood not later than 48 hours after the Due Date (the Addendum) such documents being relevant to the issues in 2004 Folio 630 and not protected form disclosure by legal professional privilege. ANZ represents and warrants that all documents listed in Schedule 2 or the Addendum, as the case may be, comprise all of the documents that:

LEGAL PROCEEDINGS

The construction of Clause 9(1) advanced by Noga was as follows. It could sensibly be broken into three parts:

I am quite unable to accept this analysis which is inconsistent with the language used and gives rise to an absurd outcome: -

In my judgement, the meaning of Clause 9(1) is clear and is as advanced by ANZ: -

Of course there remains the potential for disputes as to whether a submission has strayed into an allegation. In fact, the examples proposed by Counsel for Noga did not present, in my judgment, any difficulties. But these are matters on which the legal representatives must exercise their judgement. If they or the trial judge think it appropriate, notice of the potential area of contention can be given to ANZ.

Noga’s alternative submission is that, if the impact of Clause 9(1) is as ANZ submits (and as I have found), the provision is contrary to public policy. The primary contention here is that a trial judge must decide a case by reference to the true facts and a contract which constrains the trial judge in that respect is unenforceable. The more so, it is contended, where, as here, the Bagudu defendants at the trial have asserted that, in the absence of an allegation of fraud, ANZ must be presumed to have acted honestly which, so the argument runs, in turn supports the proposition that those defendants, acting within the same context, also must be viewed as having done so honestly.

I confess I do not find the latter argument easy to follow, the more so against the background of the terms of the settlement agreement which have now been disclosed. In any event, Noga sought to put this argument on a somewhat less fact specific and higher plane: -

In my judgement this approach is not supported by principle or authority. As a matter of principle the difficulty with this analysis is that, by way of logical conclusion, it would preclude the settlement of any civil proceedings where fraud was alleged.

Noga relied upon two authorities in support of their contention. In Lound v Grimwade [1886] 39 Ch. Div. 605 the plaintiff sought to set aside a bond on the grounds that he had executed it under duress in the form of the threat of criminal proceedings. The court found that the bond was not executed under pressure but that the consideration for it included a stipulation that certain criminal proceedings against a third party should be conducted in such a way that the plaintiff’s name should not be mentioned and, accordingly, the consideration was partly illegal. Stirling J, having cited Egerton v Earl Brownlow 4 H.L.C. 1, observed p 612:

“Upon this principle it has been repeatedly held that agreements tending to affect the course of legal proceedings are illegal, even although those proceedings may not be strictly criminal in their nature.”

In Howard v Odhams Press [1935] 1 K.B. 1, the plaintiff sought damages arising out of disclosure to his union of fraudulent activities in the defendant’s competition department of which he had been a member, such disclosure being contrary to an agreement between the claimant and his employers. The Court of Appeal held that the contract sued upon was invalid as being against public policy in as much as it purported to prevent the defendants from giving information to third parties which might assist them to secure the conviction of persons who had defrauded them in the past or to prevent commission of frauds against them in the future: -

“It may be said that the particular facts on which this agreement is said to be illegal are not those precisely of stifling a prosecution or compounding a crime; but the agreement would in my opinion have the necessary effect of restricting the opportunity which the defendants and others might otherwise possess to assist the authorities in the investigation of , and, if necessary, in the prosecution of the alleged crimes.”

Thereafter having cited Lound v Grimwade Slesser LJ went on toapprove the observation that Stirling J cited above adding “and a fortiori if they are criminal”.

These decisions do not in my judgement afford any support to Noga’s submission. The agreement with which I am concerned does not affect the course of legal proceedings, let alone criminal proceedings. The contrast has to be made between the purported compromise of a public offence and settlement of a private damage suit (even if it contains issues of a public nature): see Keir v Leeman [1846] 9 Q.B. 371 per Tyndal CJ:-

“ Indeed it is very remarkable what very little authority there is to be found…for the principle that any compromise of a misdemeanour or indeed of any public offence can be otherwise than illegal and any promise founded on such a consideration otherwise than void. If the matter were res integra we should have no doubt on this point. We have no doubt that in all offences which involve damages to an injured party for which he may maintain an action it is competent for him, notwithstanding they are also of a public nature, to compromise or settle his private damage in any way he may think fit.”

The topic was given more recent analysis in Fulham Football Club v Cabra Estates [1992] BCC 863. The Court was concerned with an agreement by the plaintiff to support a planning application by the defendant and not to support a competing compulsory purchase order which was being pursued by the Council. Having declared that there would be no valid objection on grounds of public policy to a covenant to support a planning application, Neil LJ stated at p 874: -

“In any individual case therefore the question is: has the act impugned, interfered with or will it interfere with, the due administration of justice? It is not sufficient merely to pose the question: is the effect of the agreement that a party or a witness may be prevented from putting forward a particular contention in court or before a tribunal? It is necessary to take a broad view of the public interest and, when necessary, to seek to achieve a balance between countervailing public policy considerations…. There are many circumstances where parties can properly and legally reach agreement as to the future course of legal proceedings. The law favours rather than disapproves of the compromise of a civil action and the court will intervene to prevent a party pursuing a legal remedy in breach of a valid compromise.”

In my judgment there is no basis for contending that Clause 9(1) contains a restraint contrary to public policy: -

It follows that I am prepared to make a declaration as to the validity of the settlement agreement. I am not persuaded that an injunction is necessary or any order requiring an application to amend.