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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Eronat v Tabbah  EWCA Civ 950 (10 July 2002)
Cite as:  EWCA Civ 950
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
(COMMERCIAL COURT) (MOORE-BICK, J)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MANCE
SIR CHRISTOPHER SLADE
| FRIEDHELM ERONAT||Appellant|
- and -
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Richard King (instructed by Messrs Bowling & Co.) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Mance:
Introduction and history
“(In the body of the order)
1. To ensure delivery up to Clyde & Co. forthwith:
a) Any computer disks relating to Mr Eronat’s business or personal activities, the business of Nichem or Vaeko and
b) Any taped conversation with Mr Eronat or relating to Mr Eronat’s business or personal activities
in his possession custody or power.
2. To provide to Clyde & Co. within 7 days hereof an affidavit setting out details of any and all third parties to whom he has provided documents or copies of documents which contain Confidential Information as well as the circumstances and dates of any communication of Confidential Information to any third party as well as copies of any such communication with such third parties.
3. To provide to Clyde & Co. within 7 days hereof an affidavit confirming points (a) to (c) set out in the letter of 9 June 1999 from Bowling & Co. to Clyde & Co. appended hereto.
4. To ensure delivery up within 7 days hereof of any documents or copies of documents which contain any Confidential Information and which are within the possession, custody or power of any person to whom he gave such documents, or copies of documents, whether acting personally, by his servants or agents or otherwise howsoever.
5. Not to use or disclose any of the Confidential Information.
6. Not to repeat to any third party any allegation made during or in connection with the Commission Action or the Conspiracy Action.”
(In Schedule 1)
“5. Mr Tabbah and Sitea International S.A. hereby agree to notify Clyde & Co. immediately if any third party raises with Tabbah or Sitea International S.A. or any legal person which as a matter of fact or as a matter of law Tabbah controls or which in respect of which he has any direct or indirect legal or beneficial interest makes any enquiry in respect of the Confidential Information.
6. Tabbah and Sitea International S.A. agree that neither he, nor Sitea International S.A., nor any legal person which as a matter of fact or as a matter of law Tabbah controls or which in respect of which he has any direct or indirect legal or beneficial interest, will instigate, commence or continue or procure any third party to instigate, commence or continue, in any jurisdiction any claim, demand, action, or proceeding which arises out of or is in any way related to the subject matter of the Commission Action or the Conspiracy Action.
7. Tabbah and Sitea International S.A. agree that neither he, nor Sitea International S.A., nor any legal person which as a matter of fact or as a matter of law Tabbah controls or which in respect of which he has any direct or indirect legal or beneficial interest, has assigned, transferred or given (or will assign, transfer or give) to any third party any interest in any claim he or it may have against Mr Eronat, Nichem or Vaeko which arises out of or is in any way related to the subject matter of the Commission Action or the Conspiracy Action.
8. Mr Tabbah and Sitea International S.A. jointly and severally hereby agrees fully and completely to indemnify and hold harmless Mr Eronat and/or Nichem and/or Vaeko in respect of any loss, liability, damages or costs arising from any breach of this agreement whether such breach is committed by either or both of Tabbah or Sitea International S.A.
9. In the event that Tabbah, Sitea International S.A. and/or any other legal person (whether controlled by Tabbah or not) instigate, commence or continue against any third party, in any jurisdiction, any claim, demand, action or proceeding, which arises out of or is in any way related to the subject matter of the Commission Action or the Conspiracy Action. Tabbah and Sitea International S.A. agree jointly and severally, fully and completely to indemnify Eronat, Nichem and/or Vaeko in respect of any and all loss or damage (including, without limitation, legal costs, damages and interest) suffered by Eronat, Nichem and/or Vaeko arising out of any actions taken by that third party (including without limitation, joinder, issue of third party proceedings, issue of any contribution notice and /or issue of any subpoena) against any or all of Eronat, Nichem, Vaeko and/or any legal person which as a matter of fact or as a matter of law Eronat controls or which in respect of which he has any direct or indirect legal or beneficial interest.
10. For the avoidance of doubt the indemnities contained in Clauses 7 and 8 above shall not extend to any loss arising from the lawful acts of Statutory authorities.
11. Tabbah agrees, upon a reasonable request in writing, to use his best endeavours to assist Mr Eronat, Nichem or Vaeko in relation to any enquiry by any third party arising out of or in relation to any Confidential Information.”
The applications for release and the relevant considerations
“(3) When the evidence is taken before the Grand Jury, Mr Eronat, Nichem Mobil and Mercator will be represented. It will be open to them to object to the admission of evidence on the ground that the evidence derives from material that has been unlawfully obtained. They will also have the right to cross examine Mr Tabbah and to put to him material that will discredit him. If it is truly Mr Tabbah’s purpose to injure Mr Eronat as Mr Eronat’s solicitors have alleged (see paragraph 15 above), Mr Tabbah can be asked about this and the material upon which the allegation is based can be put to him. Mr Eronat will not therefore suffer injustice by reason of Mr Tabbah giving evidence. Indeed justice is best served by not denying the Grand Jury the opportunity to hear and give appropriate weight to the evidence that Mr Tabbah will give.”
“In my judgment it is fair to say that the courts have demonstrated a greater willingness to order disclosure to the court of material obtained by others under compulsion than they have to permit disclosure by parties of material subject to the implied undertaking and thus, in general terms, of material which the court has obtained under compulsion or which the parties have had to provide to each other. No doubt in part this is due to the fact that the courts well understand and appreciate the public interest in the proper and efficient administration of justice, the need for proper discovery if this is to be achieved, the imposition that discovery imposes on parties and the desire of any court to have all information that is, or might be, relevant before it. In my judgment an additional factor is that the purposes for which a party to litigation is compelled to provide information are narrow and limited.
In Crest Homes plc v Marks  1 AC 829, 860B Lord Oliver says that:
“….the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery. As Nourse LJ observed in the course of his judgment in the instant case, each case must turn on its own individual facts.””
The judge’s exercise of discretion
“…. for the reasons I have given, I am not persuaded that the risk of injustice to Mr Eronat in allowing Mr Tabbah to give evidence in person is sufficiently great to outweigh the considerations in favour of enabling him to do so”.
Mr King acknowledged however that it was incumbent upon us to review and re-exercise the discretion, if satisfied that the judge went wrong, because he erred materially in law or in the considerations which he either took or failed to take into account, or if we otherwise concluded that the result which the judge reached was simply wrong.
“Mr Tabbah was prepared to make use of confidential information to force Mr Eronat to concede his demands, and that he is willing to use improper means to secure his objectives”.
But he went on to say that:
“Apart from informing the police of the threats to kill him, however, and, perhaps, the passing of information to the authorities, all of which occurred nearly four years ago, they do not point very strongly towards the conclusion that Mr Tabbah harbours such strong feelings of malice towards Mr Eronat as to be likely to concoct false evidence against him before the Grand Jury.”
“At most all that can be said is that Mr Tabbah was in possession of some documents and information which were probably stolen at some time from Mr Eronat, but when and by whom is entirely unclear.”
“This is a more disturbing matter, since it provides some basis for thinking that Mr Tabbah is, or at any rate was, willing to make groundless allegations against Mr Eronat for his own purposes.”
“There is evidence that he may himself have been more actively involved in the matter than he suggests, but that is not something that I can resolve on the basis of the witness statements”.
“The most that can be said about this incident, therefore, is that it shows a willingness to co-operate with the authorities in a way which might be expected to embarrass or harm Mr Eronat”.
“I find it surprising that Mr Tabbah has not provided any explanation for this curious turn of events, but unless the existence of the telex is sufficient in itself to give rise to the inference that Mr Tabbah was seeking, by this means, to harm Mr Eronat, I do not think that his failure to do so provides a sufficient basis for drawing that conclusion. Banks do make mistakes, and it is the fact that Nichem and Sitea did business from the same address, albeit in London, for some time”.
He added that, if Mr Tabbah had wanted to give the impression that Nichem was trading with Iraq, “I am inclined to think that other and better means could have been found to do it”. I would agree with the judge that the evidence does not justify any positive conclusion that Mr Eronat was seeking to harm Mr Eronat, by implicating him in dealing with Iran. Nonetheless, I consider that the judge attached too little weight to Mr Tabbah’s failure to proffer any explanation for this incident, and too much weight to the entirely speculative and on its face remote possibility of some banking mistake, which Mr Tabbah could, if it occurred, no doubt easily have demonstrated. The reality is that Mr Tabbah must be able to produce the documents leading to the opening of the credit if he wants to, but has chosen not to do so. It seems to me permissible to infer from this that Mr Tabbah does have something to hide, even if it may only be that he wishes to conceal the misuse for whatever purpose of the cover of Nichem’s address and details. Again, it seems to me that this incident goes with others to establish a strong risk of dishonest behaviour by Mr Tabbah when it suits him. I accept however that it does not lend real weight to the case for saying that there is a risk that Mr Tabbah is out to damage Mr Eronat maliciously.
“It is clear that there has been a complete rift between Mr Tabbah and Mr Eronat, and it may be that hatred is the appropriate word to describe Mr Tabbah’s feelings for Mr Eronat. However, many advocates are given to using colourful language, and the court can usually tell from the circumstances and manner in which words are spoken whether they are intended to represent a considered statement or are used merely to add some colour to a submission. I do not know in what context the words in question were spoken, but I do not feel able to accept that they were intended to represent a considered statement of Mr Tabbah’s feelings”.
Overall assessment and conclusions