Civil evidence – Affidavits – Case management – Committal for contempt

(1) Consolidated Contractors International Co SAL (2) Consolidated Contractors (OIL and GAS) Co SAL v Munib Masri: CA (Civ Div) (Sir Anthony May (president QB), Lords Justices Smith, Aikens): 21 January 2011

The appellant judgment debtors (C) appealed against a decision ([2010] EWHC 2640 (Comm)) on disclosure issues at a case management conference in relation to a committal application by the respondent judgment creditor (M).

M had obtained a substantial judgment against C, which were Lebanese companies, on the basis that he was entitled to share in an oil concession in the Yemen. He had attempted to enforce the judgment debt in England by various means, including receivership orders in respect of C. M applied for a declaration that C were in contempt of court. He also applied for the committal of an individual member of the family which owned C and for C to be fined for contempt of court. He alleged that C were in breach of the receivership orders and other orders of the court. At a case management conference before the hearing of the committal application C made applications for disclosure. M’s solicitors had instructed enquiry agents who had searched for documents in refuse sacks on the pavement outside C’s London offices; relevant documents had been copied and the originals returned to the refuse sacks. M’s solicitor’s affidavit said that the enquiry agents had confirmed that they had used that method of obtaining documents for use in court proceedings on several other occasions before and that their conduct had not been criticised by the court. C applied for M to identify the individual or individuals in the enquiry agents that provided the solicitor with the information in his affidavit and the name of the enquiry agents, and for M to disclose various classes of documents relevant to the activities of the enquiry agents. The judge refused those applications.

Held: (1) Under paragraph 4.2 of practice direction 32 of the Civil Procedure Rules an affidavit had to indicate which of the statements in it were made from the deponent’s own knowledge and which were matters of information or belief, and the source for any matters of information or belief. The judge had been wrong to hold that there was a distinction between a requirement to ‘indicate’ and one to ‘identify’ the source of any matter of information or belief. Affidavits had to be used to adduce evidence in any application for an order against anyone for an alleged contempt of court. The aim of paragraph 4.2 of the practice direction was to ensure that a person against whom serious allegations were being made could identify the source of any information or belief that was not within the deponent’s own knowledge so that the facts deposed to on the basis of information or belief could be investigated. Therefore, save in exceptional cases, the deponent had to identify the source of the relevant information or belief. If the source was a person, that person had to be identified with sufficient certainty to enable the person against whom the affidavit was directed to investigate the information or belief in accordance with the rules of court or other relevant legal principles. In the circumstances M had to identify by name the person who was the source of the information concerning the enquiry agents’ activities and also the name of the enquiry agents who employed the source of the information. The appeal was to that extent allowed (see paragraphs 31-36 of judgment).

(2) The application for disclosure of documents by M relating to the activities of the enquiry agents was effectively an application for specific disclosure. That was a matter for the judge’s discretion and he had not erred in the exercise of that discretion. He was right that there was not even a prima facie case of unlawfulness in obtaining the documents and that the prospect of the judge hearing the contempt application excluding the documents was wholly remote. In any event instructions by M’s solicitors to the enquiry agents and reports by the latter to the former would be protected by legal professional privilege. Therefore the appeal on that issue was dismissed (paragraphs 37-48).

Appeal allowed in part.

James Lewis QC, Ben Brandon (instructed by SC Andrew) for the appellants; Simon Salzedo (instructed by Simmons & Simmons) for the respondent.