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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Republic of Brazil v Durant [2012] JCA 015 (17 January 2012) URL: http://www.bailii.org/je/cases/UR/2012/2012_015.html Cite as: [2012] JCA 15, [2012] JCA 015 |
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Fraud - application for leave to appeal.
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Before : |
J. W. McNeill, Q.C., sitting as a single Judge. |
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Between |
(1) The Federal Republic of Brazil |
RESPONDENTS/ Plaintiffs |
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(2) The Municipality of Sao Paulo |
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And |
(1) Durant International Corporation |
APPLICANTS/ Defendants |
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(2) Kildare Finance Limited |
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And |
(1) Deutsche Bank International Limited |
Parties Cited |
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(2) Deutsche International Custodial Services Limited |
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(3) Deutsche International Corporate Services Limited |
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(4) Deutsche International Trustee Services (CI) Limited |
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Application for leave to appeal.
Advocate D. S. Steenson for the Applicants.
Advocate E. L. Jordan for the Respondents.
JUDGMENT
MCNEILL JA:
1. By their Notice of Appeal and Application for Leave to Appeal, Durant International Corporation and Kildare Finance Limited (the Applicants) seek leave to appeal for the purpose of setting aside certain judgments below issued by the learned Commissioner (HWB Page, QC).
2. Those judgments are (i) a judgment of the Royal Court on 20 December 2011 on the application of the Federal Republic of Brazil and the Municipality of Sao Paulo ("the Respondents") for leave to adduce evidence by video-link (the "First Judgment"), (ii) a judgment of the Royal Court on 20 December 2011 on an application by the Applicants to exclude hearsay evidence (the "Second Judgment") and (iii) a judgment of the Royal Court on 22 December 2011 on an application by the Respondents to have certain evidence given by affidavit (the "Third Judgment").
3. Taking each of those judgments in turn the following, put shortly, are the challenges which the present Applicants wish to make in respect of them.
4. As regards the First Judgment the Applicants wish to argue that the Royal Court erred in granting leave for the Respondents to adduce evidence at trial by way of video-link in respect that the Royal Court Rules make no provision for evidence to be adduced by way of video-link and that there was no inherent jurisdiction in the Royal Court to admit evidence given in that manner; that the court below should have found against the Respondents upon the principle of res judicata and should not have found the matter to be one of case management; that there was insufficient evidence to support an application for evidence to be given by way of video-link; that the court below gave insufficient weight to the prejudice caused to the Applicants by virtue of the nature of video-link proceedings; and that the court below placed insufficient weight on the timing of the application.
5. As regards the Second Judgment the Applicants wish to argue that the Royal Court erred in granting leave for the Respondents to lead certain hearsay evidence. They wish to contend, among other matters, that the Royal Court placed undue weight on the Applicants' stance and its categorisation of that stance as having been minimalist.
6. As regards the Third Judgment the Applicants wish to argue that the Royal Court erred in permitting certain evidence of one Dr. Marques to be given by affidavit.
7. In seeking leave to appeal, Advocate Steenson made the following principal contentions.
8. As regards the First Judgment and the issue of jurisdiction, in finding that it had jurisdiction to permit evidence to be given by way of video-link the court appeared to have founded on the words in RCR 6/(20) (2) (c). The Applicants would argue that this was an error in that (a) such wording should not be relied upon simply as some form of sweep-up provision to encompass scenarios where there was no other regulatory or statutory provision applicable, (b) without a regulatory of statutory framework for giving evidence by video-link then the court could only so direct by reference to inherent jurisdiction and (c) the provision in the sub-rule added nothing to the argument grounded on inherent jurisdiction. As regards inherent jurisdiction, the question of jurisdiction had not been considered in McCann v Bateman [2005] JRC 027B. As regards the English case of Garcin and others v Amerindo Investment Advisors Ltd and others 1991 WLR 1140, the decision was not authority in Jersey. Even so it did not appear to be authority for any proposition that there was an inherent jurisdiction prior to the setting up of the statutory / regulatory framework and the fact that such a framework was set up might indicate that no such inherent jurisdiction had existed.
9. Turning to the issue of res judicata, Advocate Steenson wished to argue that the conclusion by the learned Commissioner that the issue of permitting evidence to be given by way of video-link was a case management one was open to question. The decision was taken by reference to a discrete summons and determined in accordance with its merits, a situation to be contrasted with the kind of decision which a Court makes at a Pre-Trial Review or at a Directions Hearing. If such a decision is truly one of case management, it would be open to the Applicants now to adduce evidence suggesting that the relevant witnesses were willing to come to Jersey and, in theory, the parties could go on ad infinitum as circumstances altered over time. In any event, a re-visitation of an application should be dependent upon a change of circumstances whereas, here, all that occurred was that a woefully inadequate application had been bolstered by evidence which could and should have been obtained for the purposes of the earlier hearing. He referred, in particular, to the English cases of Serious Organised Crime Agency v Hakan Yaman Namli and Tupinvest Holdings International Limited [2011] EWCA Civ 1411 and Lloyds Investment (Scandinavia) Limited v Ager-Hanssen [2003] EWHC 1740 (particularly at paragraph 7).
10. Turning to the potential issue as to the allegedly unconvincing evidence of unwillingness to come to Jersey to give evidence at trial, Advocate Steenson accepted that there was a wide discretion based upon the interests of justice. Whilst the Respondents had argued that, as the relevant two witnesses were crucial to their case and could not be compelled to come to Jersey, it would be unfair for them to be deprived of that evidence. But the context was, Mr. Steenson contended, that the Respondents had fought hard to have this case litigated in Jersey and, when the question as to the convenience of Jersey as a forum had been raised by the Applicants, the Respondents had indicated that they would be bringing their crucial witnesses to Jersey. Given that context and given the lateness of the application, nine months after the principal Directions Hearing, the balance of fairness came down plainly in favour of the Applicants.
11. Turning to the Second Judgment and the position of the witness Simeao De Oliveira, the evidence of that witness appeared crucial to the Respondents' case. The written evidence had been given many years ago, was to be in part retracted and the Applicants would have no means of challenging it. This would be unfair to the Applicants. The learned Commissioner having been of the view that the application to exclude the hearsay evidence of other witnesses should be adjourned until the commencement of the trial process, such a view should also have prevailed in respect of D'Oliveira.
12. As to the Third Judgment, Dr. Marques claimed to be able to give evidence by affidavit but, for constitutional reasons, not in court where he might be subject to cross-examination. That argument was illogical, and the Applicants, in the interests of fairness, should be given the opportunity to cross examine him.
13. For the Respondents, Advocate Jordan made the following principal submissions.
14. In respect of the First Judgment, there was no basis for suggesting that it was plainly wrong. The authority of Garcin was instructive and the learned Commissioner had correctly identified the Jersey procedural provisions which were the equivalent of the old Ord 38 r3 relied upon in Garcin. The Jersey authority of McCann had stood unchallenged for over six years in which time the use of video-link in litigation had become increasingly common, where appropriate, as a means of taking evidence from witnesses overseas. The Commissioner had not treated the matter as one upon which a further application could not be made if circumstances had changed: reference was made to the transcript of the Commissioner's dismissal of the earlier application. It was not correct that the same application was made again. There had been further attempts to persuade witnesses to attend court and the subsequent applications made in relation to a different number of witnesses. Video-link evidence did not necessarily impose prejudice as it allowed cross examination.
15. As regards the Second Judgment, the Respondents' Advocate again submitted that there was no basis for suggesting that the decision was plainly wrong. The learned Commissioner had correctly identified that the use of case management powers to exclude admissible evidence on the central facts of the case was a strong thing for a court to do and had also correctly noted that sitting as a single judge - as opposed to Jurats sitting under the guidance of a presiding judge - he should be doubly cautious before exercising such a power on the basis of his own assessment of potential weight of evidence.
16. As regards the Third Judgment, it was submitted on behalf of the Respondents that the learned Commissioner's decision was well warranted in that (a) the Applicants had no positive case in relation to the alleged fraud and (b) as a State Prosecutor, it was understandable that Dr. Marques would not be permitted to present himself for cross examination due to constitutional reasons. As the learned Commissioner had identified, any concerns as to weight to be given to the evidence of Dr. Marques could be addressed in the usual way in submissions. There was, accordingly, no prejudice caused to the Applicants in Dr. Marques providing evidence by affidavit only.
17. In appraising these matters, the test to be applied is that set out in Glazebrook v Housing Committee [2002] JLR N 43 namely, that leave to appeal will be granted only when there is (i) a clear case of something having gone wrong, (ii) a question of general principle being decided for the first time or (iii) an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage.
18. I therefore turn to deal with the individual proposed grounds in the order set out above.
19. As regards the First Judgment and the issue on jurisdiction it is clear from the opening fourteen paragraphs of the Judgment that the court below based its judgment on the provisions of RCR 6/20 (2)(c) and inherent jurisdiction. Whatever arguments there might be in respect of the proper construction of the Royal Court Rules, the decision in McCann v Bateman [2005] JRC 027B has been a matter of public record for some six years. It is a decision consistent with other generally expressed views in England and Wales: see Henderson v SBS Realisations Limited 1992 WL 12659425 (Lord Donaldson MR). Advocate Steenson did not dispute the information acquired by the learned Commissioner from the Judicial Greffe that the use of video-link in litigation had become increasingly common as a convenient means of taking evidence from witnesses overseas: see paragraph 4 in the decision below. In these circumstances it is not shown, in my opinion, that there is a clear case of something having gone wrong below. Nor is an issue being decided for the first time, the availability of video-link evidence having been made public, if not after adversarial dispute, some 6 years ago. Nor, in my opinion, does this issue constitute an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage.
20. Turning to the issue of res judicata, the Glazebrook test is again, in my opinion, not made out as regards the Commissioner's characterisation of the matter as one of case management. The manner in which evidence is to be adduced (whether by affidavit, from behind screens, behind closed doors or by video-link) is clearly a matter of case management for the court seized of the litigation. That characteristic is not changed simply because, as presented by a litigant in this jurisdiction, the issue is raised upon a discrete summons and subsequently determined in accordance with merits. This Court of Appeal conventionally respects a case management decision of the Royal Court unless the judgment was plainly flawed: see UCC v Bender [2006] JLR 269 at paragraph 32, and the cases therein cited.
21. A discrete point raised under this head is whether, assuming the characterisation as case management to be correct, the Court was entitled in the circumstances to entertain the renewed application. At paragraphs 15 to 17, the learned Commissioner has highlighted his reasons for identifying a change of circumstances between the two applications. The essential point, set out at paragraph 17, is that there were further unsuccessful attempts to persuade witnesses to travel to Jersey. It seems to me open to argument that this does not constitute such a change of circumstances as are alluded to in Lloyds Investment (Scandinavia) Limited v Ager-Hanssen [2003] EWHC 1740 (particularly at paragraph 7) or in Bass Taverns Ltd v Carford Engineering Ltd [2002] EWCA Civ 671 (at paragraph 37). Indeed the Third Sidwell Affidavit, at paragraph 7, indicates that its purpose is to set out 'a more detailed explanation of the Plaintiffs' position'. Whilst, in respect of most case management decisions, it would not be open to the Court of Appeal itself to enter into issues such as weight of evidence, weight of prejudice or timing of the application, the issue here raised goes to whether the circumstances before the court were such as to entitle it to entertain the further application. In my opinion the question of leave should be referred to the full Court of Appeal under the provisions of Article 13(4) of the Court of Appeal (Jersey) Law 1961, as revised.
22. Turning to the Second Judgment the learned Commissioner, at paragraphs 10 and 11, has set out with clarity his approach to the opposing contentions. As he had indicated earlier, it is a strong thing for a court to do to exclude admissible evidence on central facts. Here, the learned Commissioner has had specific regard to certain of the sensitive issues surrounding the evidence of De Oliveira and in my opinion a case for the decision being plainly wrong is not made out.
23. Turning to the Third Judgment and the section dealing with Dr. Marques, the learned Commissioner has, in paragraph 5, noted and considered the concerns expressed by Advocate Steenson. In my opinion the argument that there is a manifest failure in logic in accepting that the Affidavit of a State Prosecutor might be adduced as evidence of matters other than prosecution but not be open to cross examination is one of importance, especially where the learned Commissioner has accepted that the result could cause some element of prejudice to the present Applicants but, on balance, determined that it would be disproportionate to refuse the application to allow affidavit evidence. The issue of balance is not one upon which leave could be granted, but I am of the view that the principal issue should be remitted.
24. For all these reasons, the applications for leave to appeal are refused with the exception of the two issues following which I refer to the full Court of Appeal. They are:-
(i) Whether, assuming that the Royal Court was correct in categorising as one of case management the application for evidence to be given by video-link, it erred in accepting that there was before it such a change of circumstances as was sufficient to entitle it to entertain a further application on a matter which it had already determined and dismissed; and
(ii) Whether, in the whole circumstances before it, the Royal Court erred in permitting the Plaintiffs to adduce as evidence for their case at trial the Affidavit of Dr Marques.
