Linda May Green v CT Group Holdings Limited

By a Part 8 claim issued on 13 October 2023 Linda Green, the Claimant, seeks Norwich Pharmacal relief against CT Group Holdings Ltd (“CT Group”).

The claim arises against a backdrop of proceedings before the Royal Court of Jersey and Royal Court of Guernsey concerning the restructuring of certain family trusts. For convenience I refer to those proceedings as “the Channel Island Proceedings” unless there is a need to distinguish between them. Because those proceedings involve trusts and minors, there is a confidentiality regime in place and I was asked to make confidentiality orders in these proceedings, which I did. However, the hearing was in open court.

In the Channel Island Proceedings, the Claimant’s stepchildren, referred to as “AA,” have alleged that the Claimant has failed to be open about her needs and resources and that this is relevant to the relief to be considered in those proceedings regarding the restructuring of certain family trusts. Mishcon de Reya (“MdR”) act for AA.

On around 14 April 2023, the private investigation company, CT Group, was engaged by MdR on behalf of AA to conduct investigations into the Claimant’s financial affairs.

On 12 May 2023, CT Group provided MdR with a phase one report (“the 12 May Report”)stating that unidentified sources and confidential contactshad identified EUR 125 million controlled by the Claimant, largely being dividend payments from three Liechtenstein companies controlled by the Claimant: Galway Trading Ltd, Accord Investment Services Ltd, and Kael Services SA (“the Entities”) and sums from an account held by Monaco Asset Management (“MAM”), the Claimant’s investment manager, at Julius Baer Bank (“Julius Baer”) in Monaco. The 12 May Report asserted that those sums had been received by the Claimant into bank accounts held at BNP Paribas in Luxembourg, Lombard Odier in Switzerland, EFG Bank in Switzerland, and Barclays Bank Monaco (“the Banks”).

On 26 May 2023, CT Group provided MdR with a series of documents evidencing the information set out in the 12 May Report (the “May Documents”). The May Documents comprise bank records and SWIFT confirmations showing substantial cash transfers being made to or from accounts in the Claimant’s married name, as follows:

The May Documents were redacted to remove reference to the identity of the sources.

On or around 27 July 2023 CT Group provided a further set of documents to MdR from Julius Baer showing two payments being made in June 2021 and June 2022 to accounts at EFG Bank by MAM from an account at Julius Baer (the “July Documents”); The evidence of Mr Chik of MdR is that CT Group informed MdR that the source of the July Documents was different and independent to the source of the May Documents.

AA are seeking to introduce these documents into evidence in the Jersey Proceedings to contend that the Claimant has misled the trustees and the Courts as to her asset position, and in support of an application for further relief in light of the content of the documents. The Claimant says the documents are all forgeries, that she has no knowledge of, and has not received, the payments apparently shown in the documents. She says she does not have accounts with any of the banks said to have accounts in her name. She says she had no knowledge of, or interest in, Galway Trading Ltd, Accord Investment Services Ltd, or Kael Services SA. Each of EFG Bank, Banque LOC, BNP Paribas and Barclays Bank has confirmed, in response to enquiries by the Claimant, that they do not have and have never had any accounts linked to her. BNP Paribas has stated that the transactions in the SWIFT documents do not correspond to any transactions carried out with them, there are no corresponding BNP Paribas IBAN accounts to those mentioned in the SWIFT documents, that the SWIFT MT103 indicating a transfer from an Accord Investment Services Ltd account at Bank Frick in Liechtenstein did not take place; and that the SWIFT documents do not correspond to authentic SWIFT messages because they contain characters which they should not be included, and omit required characters. The ECB has stated that the SWIFT messages (i.e. the May Documents) have fake references to the ECB and the screenshots do not come from the ECB Systems.. The Liechtenstein Commercial Register (oera.li) has no records of companies or other legal entities with names corresponding to the names of the Entities. MAM has confirmed that none of the transfers, account numbers, customer ID or portfolio numbers purportedly shown in the July Documents are known to them. MAM does not (and does not have the power to) instruct transfers for any of its clients, including the members of the family; and MAM had confirmed with Julius Baer that neither of the payments nor the related account referred to in the July Documents were known to the bank. Julius Baer has confirmed that the customer number in the July Documents was not a customer number relating to the Claimant, and that the transactions identified in the July Documents were not related to any account that belonged to her.

The Claimant applied in the Channel Island Proceedings for orders seeking disclosure from AA of information regarding the provenance of those documents. The Jersey Court subsequently made orders requiring AA to provide certain information regarding their engagement of CT Group and the source of the MdR Documents. AA sought further information from CT Group for that purpose including the identity of its purported sources but CT Group has refused to provide the information sought. The Claimant obtained permission from both the Jersey Royal Court and the Guernsey Royal Court to use certain documents in the Channel Islands Proceedings for the purposes of this claim.

Evidence on behalf of CT Group for this application is given by Mr Eugene Curley CMG OBE, who is an Executive Director of CT Group. Mr Curley’s evidence asserts:

CT Group have commenced proceedings in New York under USC s1782 for discovery of records from the Federal Reserve and CHIPS. The purpose of those proceedings is to access original documentation which CT Group say is likely to show whether the underlying transaction docuemnts are genuine. They say the evidence is likely to be decisive as to whether the MdR Documents are forged or not.

In these proceedings the Claimant seeks Norwich Pharmcal relief from CT Group as to their source. The Claim Form seeks :

In obtaining permission from the Jersey court to use documents for this purpose of making this claim, the Claimant gave undertakings to the Jersey court on 8 September 2023 not to commence proceedings in reliance on documents or information obtained from this Norwich Pharmacal application without the permission of the Jersey court other than making a criminal complaint.

In his witness statement in support of this application Mr Barkhordar sought the permission of this court to use any information or documents disclosed for the following purposes:

The Claimant’s case is that she is the victim of serious wrongdoing, involving the fabrication of banking documents intended to cause her prejudice in the Channel Island proceedings and falsely implicating her in the receipt of substantial assets. She says this claim is a paradigm case for the application of well-established principles under which the court assists a victim of wrongdoing to identify the wrongdoers and obtain full information necessary to enable legal redress to be sought.

It was the Defendant’s case that the court has no jurisdiction to make a Norwich Pharmacal order in the present circumstances, and if the court did have jurisdiction it should not exercise it. If it was otherwise minded to make an order it should adjourn pending determination of the s1782 proceedings.

In Collier v. Bennett [2020] EWHC 1884 (QB), [2020] 4 WLR 116 at [35], Saini J identified and defined the following four conditions for the grant of such relief:

For reasons set out below, I do not think this formulation adequately takes into account issues that arise where the issues go beyond domestic proceedings.

CT Group accepts that the Mixed Up In Condition is satisfied but dispute that any of the others is satisfied.

CT Group submit:

On this issue, I regard these submissions as unrealistic and untenable.

The Claimant has gone to extreme lengths to obtain documentation from a series of banks all of which disown the transactions in question. These would in themselves be sufficient, contrary to the submissions of CT Group, to satisfy me that there was a good arguable case of forgery but in addition the Claimant has herself made clear that her position is that she was not involved in any such transactions or the recipient of these monies. To suggest that there is no good arguable case because (i) the bank letters are often cautious and (ii) the evidence from Mr Curley to the extent that he believes the docments are likely to have been genuine and the forgeries would have been difficult to effect, is unrealistic.

Exactly what criminal or civil wrongs have in consequence been done will depend on any relevant proper law. However it does not take much to infer that if there were forgeries, it was done for the purpose of prejudicing the Claimant, and that is highly likely to give rise to a variety of criminal and civil wrongs.

Mr Weekes’ next point is that a criminal offence is not to be treated as an arguable wrong for the purpose of the Norwich Pharmacal jurisdiction.

This submission is based on the conflict between the judgment of Sedley LJ in Financial Times Ltd v. Interbrew SA [2002] EWCA Civ 274, [2002] 2 Lloyd’s Rep 229 where he said that the Norwich Pharmacal jurisdiction could not be used at the behest of a victim of a crime and that of Lord Woolf in Ashworth Hospital Authority v. MGN Ltd [2002] UKHL 29, [2002] 1 WLR 2033 to the contrary. Mr Weekes argued that the view of Sedley LJ was ratio, and that I am bound by it, whereas that of Lord Woolf was obiter.

There is an interesting point here, but it is a very narrow one. In both Interbrew and Ashworth, the applicant was able to satisfy the court that a civil wrong had been done by the third party, so it was not necessary to determine whether a victim of crime could use the Norwich Pharmacal jurisdiction. It follows that both what Sedley LJ and Lord Woolf said was obiter, a conclusion correctly reached by Andrew Baker J in Burford Capital Ltdv. London Stock Exchange Group Plc [2020] EWHC 1183 (Comm). The issue between Lord Woolf and Sedley LJ only therefore arises where the applicant relies solely on a wrong which is a crime but not at the came time a civil wrong. It is possible to imagine such cases (a breach of a criminal statute which does not give rise to actionable civil liability) but I am not aware of any Norwich Pharmacal case in the sixty years since the revival of the doctrine by the House of Lords where this particular problem was directly in issue (although it might have arisen in Burford if the court had reached different conclusions) and it would be an unusual case. And if the point did arise, I would prefer the view of Lord Woolf, with which the rest of the House agreed, as (i) it better reflects the more flexible way in which the doctrine has developed in modern times: see Ashworth at [53] [54] (ii) it would be a brave first instance judge that declined to follow the unanimous view of the House of Lords even if obiter and I see no reason to demonstrate that temerity.

In the present case, therefore, I have no difficulty in holding that there is a good arguable case that at least a civil wrong has been occasioned to the Claimant.

The Possession Condition requires the respondent to the application to be able, or likely able, to provide the information or documents necessary to enable the ultimate wrongdoer to be pursued.

Mr Weekes said that this condition was not satisfied because Mr Curley’s evidence was that CT Group did not know the identity of the ultimate source. Whilst (if his submissions were rejected) Person A could be named, Person A was not the ultimate source.

I do not regard this as a tenable objection. In Interbrew, Goldman Sachs and Lazards prepared a presentation for Interbrew on a possible takeover of South African Breweries. A fraudster doctored the figures in the written presentation then sent a copy anonymously to all the Fleet Street newspapers who happily published the information in the presentation, the doctored figures suggesting Interbrew were intending to buy at a significant discount. In consequence Interbrew’s share price plummeted. Interbrew sought delivery up of the originals sent to the newspapers with their envelopes so they could submit them to forensic examination hoping that would ultimately lead them to identify the culprit. None of the newspapers knew the identity of the culprit. Yet that did not prevent the applicant succeeding either before Lightman J or in the Court of Appeal (Footnote: ¹). Thus where a Norwich Pharmacal order is likely to assist in identification of the culprit, this condition is satisfied.

Mr Weekes also submitted that the relief sought was far wider than the jurisdiction permitted. I return to that issue below.

The formulation of Saini J in Collier does not take into account this line of cases other than as part of the Overall Justice condition. In my view it should, and this issue is central in the present case.

In Regina (Omar) v Secretary of State for Foreign and Commonwealth Affairs 2014 QB 112 the Claimants were arrested in Kenya on suspicion of having been involved in a bombing in Uganda. They were subsequently transferred to Uganda and charged there with murder. The Claimants contended that their prosecution was an abuse of process and unconstitutional in that their rendition from Kenya had been illegal and that they had been tortured and ill-treated. They began judicial review proceedings in the United Kingdom for Norwich Pharmacal relief, seeking from the Foreign Secretary information and evidence in relation to their alleged rendition and ill-treatment, to be used in the Ugandan proceedings. The Court of Appeal held that the regime set out in the Crime (International Co-operation) Act 2003 for the obtaining of evidence for use in foreign  criminal proceedings differed from the Norwich Pharmacal remedy . Parliament was to be taken, in enacting the 2003 Act, to have created an exclusive procedure, not a parallel one; that, therefore, where the statutory regime was in play, the Norwich Pharmacal remedy did not run.

Maurice Kay LJ said that the 2003 Act, where it applied, set out sovereignty limits. At [25]:

He did not accept the distinction between evidence and information drawn by the Divisional Court. At [12]:

Maurice Kay LJ made it clear that the same principle applied in civil cases where the relevant statute was the Evidence (Proceedings In Other Jurisdictions) Act 1975.

In Singularis Holdings Ltd v PricewaterhouseCoopers 2015 AC 1675, which was not a Norwich Pharmacal case, Lord Sumption, speaking for the Privy Council, said at [25]:

In Ramilos Trading Ltd v Buyanovsky [2016] 2 CLC 896 Ramilos, a BVI company, sought a Norwich Pharmacal or Bankers Trust order against the defendant British citizen resident in the UK. Flaux J held that none of the proposed claims against the third party coud be brought in England. He said:

It was argued by Mr Marshall that there was a difference between the 1975 Act and the 2003 Act. Flaux J rejected this at [129]:

It is relevant to set out applicable parts of the 1975 Act and the 2003 Act. In relation to the 1975 Act s1 provides:

As to the 2003 Act, s14 provides:

It follows that the statutory scheme in civil cases covers where the evidence to which the application relates is to be obtained for the purposes of civil proceedings “which either have been instituted before the requesting court or whose institution before that court is contemplated” and in criminal cases “is made in connection with  criminal proceedings or a criminal investigation, being carried on outside the United Kingdom”.

Thus the effect of Omar and the cases which follow it is that where the purpose of the Norwich Pharmacal application is to obtain evidence for use in foreign civil proceedings, or in connection with criminal proceedings or a criminal investigation being carried on outside the United Kingdom, the court has no jurisdiction to make a Norwich Pharmacal order because the exclusive remedy is under the respective statutory scheme.

This point does not seem to have occurred to anyone in the first fifty years since Norwich Pharmacal was decided. It seems to mean that cases such as R(Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2009] 1 WLR 2579 were decided per incuriam. It has not gained universal acceptance abroad: thus in Essar Global Fund Ltd v Arcellormittal USA LLC 3 May 2021the Cayman Court of Appeal (Goldring P, Rix and Martin JA) held, in relation to a Cayman statute in the same terms as the 1975 Act that there was no conflict between the 1975 Act and a Norwich Pharmacal order.

However, its consequences in this jurisdiction are more significant than are perhaps often appreciated. It means that some of the earlier Norwich Pharmacal cases have to be reconsidered in the light of this principle. It also means that Norwich Pharmacal cannot be used for any purpose which would be at odds with the stsatutory regime.

But what it also does is to focus on the question: for what purpose is the Norwich Pharmacal order being sought? In Burford Capital at [25] Andrew Baker J said:

The identification of the purpose or purposes for which the relief is sought are crucial in multi-jurisdictional cases because if the intended purpose is an illegitimate purpose in the light of Omar, the court cannot, or will not, make an order.

Mr Marshall said that it was impossible to know exactly what purpose the information would be used for until it was obtained, there were various possibilities and a decision could not reasonably be made until the information was obtained. He referred to Shalaimoun v Mining Technologies Inc [2012] 1WLR 1276 in support of this submission. There Coulson J said at [20]:

This, therefore was a pre-Omar case and the reasoning cannot stand with Omar.

In a case where there is no jurisdictional issue, there is no real difficulty in an applicant saying “I am not sure whether I want to dismiss the employee, start civil proceedings or make a criminal complaint, I will decide when I get the information.” But if the case involves a number of jurisdictions, and particularly if the connection with England is limited, the application will be much more problematic and the focus on the applicant’s purpose will be important.

Moreover, in non-domestic Norwich Pharmacal cases it may often be necessary to consider the effect of the decision of the Court of Appeal in Gorbachev v Gouriev 2023 KB 1. This was a case on non-party disclosure where the Court of Appeal held that in any normal case sovereignty issues prevented it from making an order against a non-party for disclosure of documents located outside the jurisdiction. This was not a point on which I was addressed in the present case, but in other non-domestic Norwich Pharmacal cases it may well be significant.

Interestingly, it has only become possible to obtain leave to serve a Norwich Pharmacal application out the jurisdiction since 1 October 2022, when a new gateway (25) was inserted in para 3.1 of Practice Direction 6B. But that simply means that it is no longer a bar to an application that it cannot be served on a defendant outside the jurisdiction.

I would therefore propose that in addition to the four preconditions in Collier there should be a further condition:

For the reasons set out, I do not consider that in any case with a jurisdictional element, it is good enough to adopt a “wait and see” attitude to the purpose of the application.

It could not be a proper purpose to seek the information for civil proceedings abroad, whether in the Channel Islands or elsewhere.

It could not be a proper purpose to seek the information in connection with criminal proceedings abroad. Mr Marshall suggested the wording of the 2003 Act was narrower than the 1975 Act, and therefore that making a criminal complaint abroad would not fall within the statutory scheme. Use for purposes of making a criminal complaint to a foreign authority is surely “in connection with  criminal proceedings or a criminal investigation” but even if I was wrong on that, I do not accept that it is in any real sense the purpose of this application to make a criminal complaint against a currently unknown person in an unknown jurisdiction or that the Claimant would suffer prejudice if she was deprived of the opportunity to make such a complaint.

Mr Marshall suggested that it was possible obtaining the information would lead to civil or criminal proceedings in this jurisdiction, either against CT Group themselves or against the ultimate wrongdoer (whom I shall refer to as “the third party”). But there is nothing in this case which connects it with this jurisdiction other than the residence of CT Group. There is no reason on the evidence to believe the third party has anything to do with this jurisdiction.

As for the suggestion the purpose could be to bring proceedings against CT Group, it seems to me that if that was the intention, this application would have needed to be framed very differently and should have been brought under CPR 31.16 for pre-action disclosure. CT Group are entitled to complain that purpose was not foreshadowed and is not a legitimate use of the Norwich Pharmacal procedure. Nor would I have been satisfied there was a good arguable case of wrongdoing against CT Group.

Thus I do not consider the Claimant has shown a legitimate purpose for this application.

Requiring disclosure from the respondent must be an appropriate and proportionate response in all the circumstances of the case, bearing in mind the exceptional but flexible nature of the jurisdiction. Another means of looking at the effect of Omar is to treat that as a factor to be identified as part of the overall justice condition.

In Rugby Football Union v Consolidated Information Services Ltd [2012] UKSC 55 (“RFU”) at [17], Lord Kerr held that it was relevant to have regard to: (i) the strength of the applicant’s case; (ii) the strong public interest in allowing the applicant to vindicate his legal rights; (iii) whether the making of the order will deter similar wrongdoing in the future; (iv) whether the information could be obtained from another source; (v) whether the respondent to the application knew or ought to have known that he was facilitating arguable wrongdoing; (vi) whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm as a result; (vii) the degree of confidentiality of the information sought; (viii) privacy rights under Article 8, ECHR; (ix) rights and freedoms under data protection legislation; and (x) the public interest in maintaining the confidentiality of journalistic sources. 

While setting out the factors, Lord Kerr in RFU explained that “the essential purpose of the remedy is to do justice” (at [17]) and “cases have emphasised the need for flexibility and discretion in considering whether the remedy should be granted” (at [15]). Whether it can be regarded as an exercise of discretion or rather judgment (see Arnold J in Goldeneye Eye (International) Ltd v TelefonicaUK Ltd [2012] EWHC 723 (Ch) at [147] perhaps does not matter, the relevant factors must be weighed in the balance.

In this regard the Claimant submitted:

For the avoidance of doubt, I do not consider that the evidence before the court demonstrates wrongdoing or improper behaviour by CT Group. Exactly how the information was obtained is referred to in Mr Curley’s evidence and I am not prepared to indulge in speculation which goes beyond that.

CT Group have said that disclosure of the identity of Person A is confidential and disclosure would compromise their identity. They say that confidentiality is vitally important to the effective running of its operations and that it does not wish to compromise the identity and safety of Person A.

In JSC BTA Bank v Shalabayev [2011] EWHC 2903 (Ch)Henderson J reviewed the authorities on this issue and said at [40] that part of the public interest was that tortfeasors should not have the comfort of knowing that they could avoid the obligation to make a disclosure by pleading risk of danger to themselves. He cited the application for permission to appeal in Coco Cola Company & Schweppes Ltd v Gilbey [1996] FSR 23 where Nourse LJ said:

I regard this factor as one matter to be weighed in the balance on the Overall Justice Condition. However, it is not a factor which by itself would prevent me making an order, particularly as it would be possible to limit the persons to whom disclosure was made, at least in the first instance, to preserve confidentiality.

I have considerable sympathy for the Claimant, in that it is not surprising she wishes to find out how it is that what appears to be a fraud on her is being perpetrated, and who is behind it. On her case, there have been repeated forgeries designed to prejudice her position.

That said, it is hard to see how she is likely to benefit from the making of an order. Mr Curley makes clear in his evidence that whilst CT Group knows the identity of Person A, Person A is merely a middleman and no one in CT Group knows the identity of the ultimate source or wrongdoer. Person A is a former intelligence operative within the intelligence service of an eastern European country who is currently resident in the Russian Federation. Seeking to obtain an order requiring Person A to reveal their source looks fraught with problems, given that they seem to have nothing to do with this jurisdiction.

Mr Marshall criticised the evidence of Mr Curley as lacking a statement of his sources to the extent that the matters in his evidence were outside his own knowledge (see para 3 of his statement). But it is clear that what he is saying about Person A comes at least substantially from personal knowledge: see paras 43-47.

I therefore have in mind the following:

I therefore conclude that:

If I had taken a different view, I would have made a much more restricted order than that sought, but in the event it is unnecessary for me to consider that.

I should also say that if I had been minded to make an order, I would not have been willing to adjourn the application pending resolution of the s1782 proceedings, as suggested by Mr Weekes, a course which seems to have no sensible benefit.

I therefore dismiss this application and the action. I should add that the case was well argued on both sides. I propose to give judgment remotely and without attendance from counsel. The parties can consider whether any consequential matters can be dealt with on paper or whether an oral hearing is necessary.