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Cite as: [1999] EWHC 849 (Ch), [2000] Ch 645, [2000] 2 WLR 1106, [2000] 1 All ER 434

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BAILII Citation Number: [1999] EWHC 849 (Ch)
Case No. HC 1999 No.00446

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

3 November 1999

B e f o r e :

THE HONOURABLE MRS JUSTICE ARDEN
____________________

Between:
(1) MEMORY CORPORATION PLC
(2) DATRONTECH HONG KONG LIMITED (Claimants)
and
(1) SUKHBIR SINGH SIDHU
(2) SUNSAR LIMITED (Defendants)

____________________

Mr Timothy Higginson, instructed by Mischcon de Reya, appeared for the Claimants.
Mr Robert Howe, instructed by Morgan Cole, appeared for the First Defendant.
The Second Defendant made no appearance.
Hearing date: 2 November 1999

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mrs Justice Arden

  1. In this matter I have to rule on whether as a matter of principle the privilege against self-incrimination can be claimed by a defendant who has been ordered to attend for cross-examination on affidavit. The question has arisen in this way. The proceedings were begun in January 1999 and on 27 January 1999 Hart J made a freezing order against the First Defendant in this case, Mr Sidhu. The order required Mr Sidhu to disclose his assets and confirm the information in affidavit. On 21 May 1999 Hart J ordered Mr Sidhu to attend for cross-examination as to his assets. I have not seen the judgment of Hart J given on that occasion but Counsel remind me that an order for cross-examination on affidavit in these circumstances is an exceptional measure (see for example Yukong Line v. Rendsburg Investments Corporation of Liberia, Court of Appeal, 22 October 1996 per Phillips LJ). Counsel inform me that, after Hart J gave judgment ordering cross-examination, the question of the privilege against self-incrimination (which did not arise in the Yukong case) was raised. Hart J did not resolve the difficulty there and then but inserted a provision in his order intended to reserve the question for a future occasion. That provision was as follows:
  2. "3. No transcript or other record of such cross-examination may be used by any person other than the First Defendant for any purpose unless and to the extent that the First Defendant consents or the Court gives leave."

    A provision to this effect will prevent any answer given which goes beyond the proper purpose for which cross-examination is allowed being used to give the claimant an advantage in the litigation. It will be appreciated that the evidence to be given under cross-examination and the affidavit which Mr Sidhu has sworn constitute evidence given under the compulsion of an order of the court.

  3. The cross-examination was ordered to take place before a Judge and came before me for that purpose. I have therefore to supervise the cross-examination. I have not been concerned with the merits of the claim against Mr Sidhu, but I should point out that serious allegations are made but Mr Sidhu denies them.
  4. Mr Robert Howe, who appears for Mr Sidhu argues that unless Mr Sidhu is given some greater protection than the order of Hart J presently provides, he is exposed to the risk that the Claimants will seek leave from the court to bring contempt proceedings based on his answers in cross-examination. The Claimants have declined to give Mr Sidhu an undertaking not to use any information obtained on the cross-examination for the purposes of an application for contempt. Mr Timothy Higginson, who appeared for the Claimants, submitted that under paragraph 3 of the order of Hart J the court will have power to grant leave to the Claimants to bring proceedings for contempt, based on Mr Sidhu's answers, if it considers that it would be fair for such answers to be used in that connection. Mr Higginson submits that it is premature to deal with the question of privilege now: the court should allow the answers to be given and then decide at a subsequent date if there is a privilege in this situation. But as Mr Howe points out, if there is a privilege it is a privilege which Mr Sidhu is entitled to invoke at this stage. Indeed, if the privilege exists and is properly claimed, the answers should not be required at all and so the second stage in the enquiry never arises. In my judgment Mr Howe is right on this.
  5. Mr Sidhu's position is that if he is not given some further protection he will be entitled to rely on the privilege against self-incrimination. This is said to follow from the decision of Rimer J in Cobra Golf Inc v. Rata [1998] Ch 109, in which Rimer J held that proceedings for civil contempt were proceedings for "recovery of a penalty" for the purpose of section 14 of the Civil Evidence Act 1968 so that the privilege of self-incrimination applies to them. I have not been asked to depart from Rimer J's conclusions in this case. There is a very full consideration of the authorities in the judgment of Rimer J. Rather the argument for Mr Higginson has simply been that there is an exception from the privilege against self-incrimination where the contempt arises out of actions in the instant case.
  6. The privilege against self-incrimination is well-established in our law. There are many citations from reported cases which emphasise the importance of the principle: see for example Bishopsgate v. Maxwell [1993] 1 Ch at page 38, where Dillon LJ said:-
  7. "The privilege against self-incrimination is so deeply entrenched in our law that any decision to curtail it or make it not available is essentially a political decision, and a matter for Parliament."

    It was a principle which the courts of common law developed (it is said) in response to the practices of the courts of Star Chamber. One possibility is that the Courts of Chancery borrowed their procedure from the ecclesiastical courts and did not originally take the same approach as the common law had that a person could not be compelled to give evidence against himself. Indeed Maitland explains how in Chancery a defendant was required to answer matters alleged against him in a bill and to answer upon oath: Maitland, The Constitutional History of England, 1908, CUP edition, page 469. This may account for some of the old cases.

  8. Mr Higginson says that the exception is supported by the old authority of Rice v. Gordon (1843) 1 Sim 580, 60 ER 225, and that this case has been followed in two more recent cases (Emanuel v. Emanuel [1982] 1 WLR 669, and Distributori Automatici Italia v. Holford Trading Co Ltd [1985] 1 WLR 1066). Mr Howe submits that Rice v. Gordon is no longer good law, that it is authority only for perjury, that the two recent cases which followed it were ex parte applications and dealt only with a supposed exception for perjury; that the exception is not consistent with modern expression of the privilege; that there is therefore no further exception for contempt in the same proceedings and in any event that no new exception should be created now.
  9. The three cases on which Mr Higginson relies are referred to by Rimer J in Cobra Golf Inc v. Rata (above). They are only concerned with perjury. Rimer J left open the question whether an exception exists for contempt in the same proceedings. Rimer J expressed the view that if there was no privilege in respect of perjury in the same proceedings he could see much force in the argument that there ought likewise to be no privilege in respect of contempt in the same proceedings.
  10. I therefore propose to examine the three cases in turn and the other authorities to which Counsel have referred.
  11. In Rice v. Gordon (above), the report reads:-
  12. "In this case an indictment was pending, against the Defendant for perjury committed in the cause; and, on Mr. Cole, for the Plaintiff, moving for the production of documents which the Defendant had admitted in his answer to be in his custody, Mr. Chandless contended that he was not bound to produce them, because they tended to support the indictment; and cited Paxton v. Douglas (1809) 16 Ves 239. The Vice-Chancellor[Sir L Shadwell] said that in the case cited, the offence was committed prior to the institution of the suit; but, in the present case, it was committed in the very cause in which the motion was made; and that, if he were to refuse the motions, he should be holding out an inducement to a Defendant to commit perjury in an early stage of the cause, in order to prevent the Court from administering justice in the suit. Motion granted." (Shadwell V-C's emphasis.)
  13. Rimer J observes (at page 157h) that this case "was referred to with some apparent doubt" by Bridge LJ in the Court of Appeal in Rank Film Distributors v. Video Information Centre [1982] AC 380 at 413–414 (Bridge and Templeman LLJ, Lord Denning MR dissenting, affirmed [1982] AC 380, 425). Bridge LJ said this:
  14. "Counsel's narrow submission is advanced in support of a suggested ad hoc exception to the privilege which would cover the circumstances of the present case. He drew our attention to a number of nineteenth century decisions of English and Irish courts where ad hoc exceptions to the privilege were upheld. The following are the cases referred to, set out in chronological order: Mayor and Citizens of London v Levy (1802) 8 Ves 398, 32 ER 408, Green v Weaver (1827) 1 Sim 404, 57 ER 630, Attorney General v Daly (1833) Hayes & Jo 379, Attorney-General v Conroy (1838) 2 Jo Ex Ir 791, Rice v Gordon (1843) 13 Sim 580, 60 ER 225, Chadwick v Chadwick (1852) 22 LJ Ch 329, Robinson v Kitchin (1856) 8 De GM & G 88, 44 ER 322, Bunn v Bunn (1864) 4 De GJ & Sm 316, 46 ER 941.
    I do not refer to these cases in detail for the reason that I found it impossible to derive any significant assistance from them. The reasoning of the judgments is often terse and difficult to follow. Counsel for the plaintiffs was the first to concede that it was impossible to derive from these cases any coherent underlying principle by which to distinguish the exceptional case where the privilege is not available from the normal case where it is. The furthest one can go is to say that they indicate a willingness on the part of nineteenth century judges to override the privilege when to allow it would defeat the justice of the case. None of these cases appears to have been followed for over a hundred years. It seems to me very much open to doubt whether the privilege against self-incrimination at the time of these decisions had yet come to be recognised as one of the 'inveterate principles of English law' to which Bowen LJ referred in 1891 (Redfern v Redfern [1891] P 139 at 147,[1886–90] All ER Rep 524 at 528). Nor is it without significance that the first five of the eight cases referred to were decided before the important decision of 12 judges in R v Garbett (1847) 2 Car & Kir 474, 175 ER 196 affirming the privilege. In the last three cases listed Garbett's case was not cited. I regret that I am quite unable to accept an exception to the privilege against self-incrimination based on the principle formulated in the judgment of Lord Denning MR that 'the court will not allow the defendant the benefit of the privilege when to do so would enable him to take advantage of his own fraud or other wrongdoing so as to defeat the just claims of the plaintiff in a civil suit'. A principle so widely stated, so far from establishing a limited exception to the privilege, could be invoked by a plaintiff seeking discovery from a defendant so as to negate the privilege in every case"
  15. The only other member of the Court of Appeal to refer to the case was Templeman LJ. Rice v. Gordon was cited to him as one of a number of old cases in which discovery or interrogatories were allowed notwithstanding the risk of self-incrimination. Templeman LJ held (at pages 421-3) that those authorities:-
  16. "In my judgment the authorities cited by counsel do not enable this court to evolve a general or special exemption which deprives the defendant of his privilege to resist discovery in order to assist the plaintiff against third parties, if that privilege is justified by the accepted principle that no man shall be compelled to incriminate himself.

    Apart from the authorities, it seems to me that the solution suggested would destroy the privilege accorded to a defendant in a civil action. Where a defendant in a civil action relies on the doctrine against self-incrimination and insists on remaining silent and on concealing documents and other evidence relevant to the action, he is relying on his own wrongdoing or on his own apparent or possible wrongdoing to hamper the plaintiff in the proof of his just claims in the suit. That is the inevitable result of the doctrine which can only afford protection of the defendant at the risk or price of causing an injustice to the plaintiff. That injustice is an argument against the whole doctrine as applied to discovery and interrogatories in civil actions. It is not an injustice which is acceptable in relation to some causes of action but not others."

  17. Templeman LJ thus did not specifically criticise or comment on Rice v. Gordon by name. I do not consider however, that it can be said that he approved it but that he was not called upon to comment on it expressly in the light of his conclusion.
  18. Templeman LJ also considered the effect of claiming the privilege:
  19. "In every case in which a defendant is faced with possible self-incrimination as a result of discovery or interrogatories and especially where the tort and the crime are constituted by the same activity, the defendant has a choice. The defendant may choose to rely on the silence and concealment afforded by the doctrine against self-incrimination in order at one and the same time to hamper the plaintiff in the proof of his civil action and as a means of resisting or avoiding criminal prosecution or conviction. Alternatively the defendant may abandon his defence to the civil action in which case he will be immune from discovery and interrogatories and will not need to rely on the doctrine against self-incrimination unless and until he is confronted with an inquiry as to damages. Failure to defend the civil action will not prejudice the defendant in any criminal proceedings. Alternatively again, if a defendant wishes to maintain a plausible defence to the civil suit, he will waive the privilege and give frank answers to interrogatories and full discovery.
    The plaintiff is not wholly or necessarily defeated and the defendant is not necessarily assisted by the defendant relying on the privilege against self-incrimination. The civil court may draw conclusions where a criminal court may not. If the privilege is raised in connection with an inquiry as to damages the court will be driven to draw conclusions as to the scope of and harm caused by the defendant's activities and, in the face of silence and concealment on the part of the defendant, will not be slow to make assumptions and draw inferences which will enable damages to be awarded on a scale which will do justice to the plaintiff. If in the event damages are more generous than would have been the case if the defendant had answered all the interrogatories and afforded full discovery, the defendant can hardly complain.
    The disadvantages which attach to a defendant who relies on the privilege accorded by the doctrine against self-incrimination explain the absence of reliance on that doctrine in the past in connection with copyright proceedings. A plaintiff in copyright proceedings was and is no better and no worse off by reason of the doctrine against self-incrimination than a plaintiff in any other proceedings in so far as the plaintiff seeks to establish the defendant's liability and to obtain an injunction against the defendant and a proper measure of damages."

    In short, the fact that a defendant may be able to claim the privilege is claimed does not mean that he or she will always do so or that the claimant will not be able to succeed in the action..

  20. I now turn to the more modern authorities relied upon by Mr Higginson. First, in Emanuel v. Emanuel [1982] 1 WLR 669 at 677, Wood J said this:
  21. "There was, however, one further matter of law to which I must refer. The Rank Film Distributors case was argued in the House of Lords in March 1981: see [1981] 2 All ER 76, [1981] 2 WLR 668. The issue was the existence of the privilege against self-incrimination where the Anton Piller type of order has been made. The Court of Appeal had decided that the court should abstain from making an order ex parte requiring immediate answers to interrogatories or disclosure of documents when it can see that the defendant would be in danger of self-incrimination, and all requirements to answer those interrogatories or to disclose documents were deleted from the order originally made at first instance. The appeal was dismissed and the House of Lords held that the privilege against self-incrimination was capable of being invoked.
    In the present case there was prima facie evidence before me that it might be alleged that the respondent husband had committed perjury. I, therefore, had to consider whether some provision should be made in the order to protect him against self-incrimination. I was referred to Rice v Gordon (1843) 13 Sim 580, 60 ER 225. The report of this case, which was decided in November 1843, is very short and I set it out in full:
    'In this case an indictment was pending, against the Defendant for perjury committed in the cause; and on Mr Cole, for the Plaintiff, moving for the production of documents which the Defendant had admitted in his answer to be in his custody, Mr Chandless contended that he was not bound to produce them, because they tended to support the indictment; and cited Paxton v Douglas ((1809) 16 Ves 239, 33 ER 975). The VICE-CHANCELLOR [Sir L Shadwell] said that in the case cited the offence was committed prior to the institution of the suit; but, in the present case, it was committed in the very cause in which the motion was made; and that, if he were to refuse the motion, he should be holding out an inducement to a Defendant to commit perjury in an early stage of the cause, in order to prevent the Court from administering justice in the suit. Motion granted.'

    That case was cited by Templeman LJ in the Rank Film Distributors case without criticism (see [1980] 2 All ER 273 at 290, [1980] 3 WLR 487 at 518). In the present case the only possible criminal offence that is disclosed is the prima facie evidence of perjury, and in the circumstances I did not require any special clause to be inserted in the order to encourage the respondent husband to invoke the principle of privilege against self-incrimination."

    But, as Mr Howe submitted, the application in this case was ex parte and concerned a risk of self-incrimination in respect of perjury. In addition Wood J did not refer to the doubts expressed by Bridge LJ.

  22. The other authority is Distributori Automatici Italia v Holford Trading Co. Ltd [1985] 1 WLR 1066, where the issue was whether a search order could be made after judgment had been entered. The Emanuel case was cited to Leggatt J, but not Rank Video Distributors:
  23. "In the present case there is no suggestion that the second defendant has been, or is, in peril of criminal proceedings unless it were (a) under the Theft Act 1976 or (b) such as might be brought by the Department of Trade or (c) for perjury in respect of his answers in oral examination. As to (a), s 31(1) of the Act itself deprives the second defendant of the benefit of the excuse. As to (b), the visit to the defendants' premises, which gave rise to the possibility of proceedings, occurred some time ago but has not resulted, so far as is known, in any charge being preferred against either defendant. And, as to (c), since any perjury by the second defendant would have been committed in this cause itself, a plea of self-incrimination would not avail him: see Emanuel v Emanuel [1982] 2 All ER 342 at 349,[1982] 1 WLR 669 at 677."

    Accordingly Leggatt J applied the decision of Wood J in Emanuel.

  24. There are three further cases to which I should refer, and I will take them in chronological order. The first is Comet Products UK Ltd v. Hawkex Plastics Ltd [1971] 2 QB 67, CA. Here the issue was whether a defendant should be cross-examined on an affidavit sworn by him on an application by the plaintiff to commit him for contempt. The cross-examination was likely to cover issues in the action and on that basis it was held that it should not have been allowed. In the course of his judgment, Lord Denning MR said:
  25. "This case raises questions of some importance. Mr Sparrow [Counsel for the plaintiffs] submitted that in proceedings of this kind the defendant can be compelled to give evidence even against himself. Mr Sparrow pointed out that this is a case of civil contempt and not criminal. The difference is well known. A criminal contempt is one which takes place in the face of the court, or which prejudices a fair trial and so forth. A civil contempt is different. A typical case is disobedience to an order made by the court in a civil action.
    I cannot accept counsel's submission. Although this is a civil contempt, it partakes of the nature of a criminal charge. The defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding. I see that Cross J in Yianni v Yianni, so decided; and furthermore we ourselves in this court, in Re Bramblevale Ltd, said that it must be proved with the same degree of satisfaction as in a criminal charge. It follows that the accused is not bound to give evidence unless he chooses to do so. In this connection I quote what Bowen LJ said in Redfern v. Redfern [1891] P 139 at 147, [1886-90] All ER Rep 524 at 528:-
    'It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture ... "no one is bound to incriminate himself'"

    This was not always the law in the case of civil contempt. In the days of Sir William Blackstone, 200 years ago, civil contempt was an exception to the general principle. In those days a plaintiff was entitled to deliver interrogatories to the defendant, which the defendant was bound to answer on oath. In his Commentaries (18th Edn, 1829, Bk4, page 287) Sir William Blackstone said that:-

    'this method of making the defendant answer upon oath to a criminal charge, is not agreeable to the genius of the common law in any other instance";

    and he went on to say at page 288:-

    'by long and immemorial usage,[it] has now become the law of the land'.

    I am prepared to accept that such a rule did exist in the days of Sir William Blackstone. But I do not think it exists any longer today. The genius of the common law has prevailed. I hold that a man who is charged with contempt of court cannot be compelled to answer interrogatories or to give evidence himself to make him provide his guilt. I reject the submission that the defendant is a compellable witness in the contempt proceedings against him."

    As Rimer J said in Cobra Golf at page 131, the other members of the Court of Appeal (Megaw and Cross LLJ) agreed but there was no question in that case of the defendant being compelled to give evidence since he had voluntarily served an affidavit. It would thus appear that the passage which I have quoted was obiter but it is nonetheless a powerful expression of opinion supporting the conclusion that the privilege against self-incrimination applies in respect of contempt in the same proceedings.

  26. The next case to which I wish to refer is the Bishopsgate case above, and to the judgment of Dillon LJ. One of the issues is that case was whether there was an exception to the privilege against self-incrimination where a principal was seeking to recover money from an agent or fiduciary or was seeking an account. At pages 17 to 18 of his judgment Dillon LJ examined the history of the privilege against self- incrimination in the Courts of Chancery in these terms:
  27. "THE PRIVILEGE AGAINST SELF-INCRIMINATION
    It appears from Holdsworth's History of English Law vol 9 (3rd edn, 1944), esp at p 200 that the privilege, and the maxim nemo tenetur prodere se ipsum, became established in the common law after the abolition of the Court of Star Chamber by the Long Parliament. In Hammond v Commonwealth of Australia (1982) 152 CLR 188, a decision of the High Court of Australia, Murphy J (at 200) refers to the privilege against self-incrimination as part of our legal heritage, where it became rooted as a response to the horrors of the Star Chamber, while Brennan J (at 203), after stating that the privilege is a principle deep-rooted in our law and history, cites from an opinion of the Supreme Court of the United States in Brown v Walker (1896) 161 US 591 at 596–597:
    'The maxim nemo tenetur se ipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England ... The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American, jurisprudence.'
    It had become thus embedded in English jurisprudence well before the beginning of the nineteenth century, not least in the Chancery Division, which was particularly concerned with the discovery of documents in civil proceedings.
    Thus in Smith v Read (1736) 1 Atk 526 at 527, 26 ER 332 Lord Hardwicke LC said:
    '... there is no rule more established in equity, than that a person shall not be obliged to discover what will subject him to a penalty, or any thing in the nature of a penalty. Under the rule, a man is not obliged to accuse himself, is implied, that he is not to discover a disability in himself ...'
    So, in Parkhurst v Lowten (1819) 2 Swan 194 at 214, 36 ER 589 at 595 Eldon LC refers to—
    'it having been for ages a principle of British jurisprudence, and I hope it will continue so as long as the law continues, that no man shall be called on in a court of justice to accuse himself of an offence ...'
    So, in Orme v Crockford (1824) 13 Price 376 at 388, 147 ER 1022 at 1026 Alexander CB referred to the right of a person to protect himself, by refusing to answer, from the consequence of answering questions which might tend to charge him with a crime or subject him to penalties or forfeiture of estate, as 'a most important right'. He added (13 Price 376 at 389, 147 ER 1022 at 1026):
    'Whenever it shall be thought expedient that that right should be taken away from the subject, it must be done expressly, by a clear and unequivocal enactment.'
    Much more recently Lord Griffiths in Lam Chi-ming v R [1991] 3 All ER 172 at 176, [1991] 2 AC 212 at 222 refers to the privilege against self-incrimination as deep-rooted in English law.
    Also, in Rank Film Distributors Ltd v Video Information Centre [1981] 2 All ER 76 at 81, [1982] AC 380 at 442 Lord Wilberforce says of the privilege against self-incrimination:
    'This has been too long established in our law as a basic liberty of the subject (in other countries it has constitutional status) to be denied.'
    He had said earlier ([1981] 2 All ER 76 at 79, [1982] AC 380 at 439):
    'It may seem to be a strange paradox that the worse, ie the more criminal, their [ie the defendants'] activities can be made to appear, the less effective is the civil remedy that can be granted, but that, prima facie, is what the privilege achieves.'"
  28. At a later point in his judgment Dillon LJ analysed two nineteenth century cases. It will be sufficient if I refer to one only of them, namely Green v. Weaver. At pages 35 to 36 Dillon LJ said this:
  29. "Green v Weaver
    The facts of Green v Weaver (1827) 1 Sim 404, 57 ER 630, as I understand them, were simple. The plaintiff instructed the defendants, a firm of wool-brokers in the City of London, to buy foreign wool for him, in the belief that all the partners in the firm were duly qualified to act as brokers. It was of some importance to him to know who the sellers were of the wool which the defendants claimed to have bought for him, and he came to suspect that the information given him by the defendants as to the sellers was false and that the transactions were fraudulent. He therefore sought discovery of their dealings for him against the defendants. In fact, however, two of the three partners in the defendant firm were not qualified to act as brokers, as they had not entered into appropriate bonds with the City authorities, and if they were shown to have acted as brokers without being duly qualified they would be liable to penalties by statutes. The defendants therefore refused to give discovery or any further information, and relied on the privilege against self-incrimination.
    Hart V-C held that they could not rely on the privilege. In a full judgment, he set out that it was undeniable that the rule of a court of equity was that a man should not be compelled to answer to any facts which might tend to criminate him or subject him to penalties or forfeitures; but he went on to say that the due application of the rule to the circumstances of individual cases had been a matter of much controversy (see 1 Sim 404 at 426, 57 ER 630 at 638). He was concerned that if he ordered the defendants to answer, his decision might be inconsistent with the doctrine laid down by great judges in former cases, but, on the other hand, if he upheld the defendants' privilege he might render Acts of Parliament especially framed for the purpose of protecting principals from the dishonesty of their agents, a cover to their agents in the grossest and most scandalous frauds.
    He then deduced from the authorities, to which I need not refer (but which it is suggested in a footnote in Bray on Discovery (2nd edn, 1910) p 338 he may have misunderstood), that a man by contract or the effect of his own acts may exclude himself from the benefit of the privilege against self-incrimination. He then equated, in the eyes of a court of equity, the moral obligation of a confidential agent to give discovery to an obligation resulting from a stipulation by deed (see 1 Sim 404 at 432, 57 ER 630 at 640). He stressed, as a justification of the decision on moral grounds, that the plaintiff as employer had no reason to suspect, and no means of detecting the misrepresentation of the fact whether the defendants were or were not duly constituted legal brokers.
    Green v Weaver is undoubtedly a case, as is the present, in which it sticks in the gullet that a defendant should, in the circumstances, be entitled to rely on the privilege against self-incrimination. But that is inherent in the paradox of the privilege, as stated by Lord Wilberforce.
    In contrast to Green v Weaver, we were referred to a judgment of Lord Langdale MR in Lee v Read (1842) 5 Beav 381, 49 ER 625, where he seems to say that a party cannot by any agreement deprive himself of the protection of the privilege against self-incrimination. But that is in an extempore judgment on a point on which authority had not been cited and is founded merely on an unnamed case which the judge thought he remembered. It cannot therefore carry much authority, especially in the face of Robinson v Kitchin (1856) 8 De GM & G 88, 44 ER 322."
  30. In his conclusion on the earlier cases, Dillon LJ said this (pages 37 to 38):
  31. "The subsequent law
    So far as I am aware, Green v Weaver and Robinson v Kitchin are not referred to in any modern textbook, and have not been referred to judicially in any case since they were decided, except for the references in the Rank Film case in this court and the decision of Browne-Wilkinson V-C in Tate Access Floors Inc v Boswell [1990] 3 All ER 303, [1991] Ch 512. In the Rank Film case Templeman LJ left open, as I have said, whether the proposition he derived from Green v Weaver was now good law or not. In Tate Access Floors Inc v Boswell Browne-Wilkinson V-C held that the cases did not establish the wide proposition that where a defendant agrees to act as a fiduciary he impliedly contracts not to raise the claim to the privilege against self-incrimination in any case brought by his principal to enforce the fiduciary duties and he doubted whether the two cases are good law today.
    I do not find it necessary to consider whether the law does or does not permit a party to make an express contract with another party that the former will not rely on the privilege against the other in relation to any of their dealings. The difficulty I have is over the leap made by Hart V-C from that to the position that a party cannot rely on the privilege where there is no such express contract—unless the explanation of Green v Weaver is the form of estoppel as to the position held by the party, the validity of which we do not have to consider in the present case.
    If Green v Weaver purported to lay down the wide proposition which Browne-Wilkinson V-C rejected, it seems to me, as it did to him, inconsistent with the formulation of the law by Lord Eldon LC in the earlier case of Parkhurst v Lowten (1816) 1 Mer 392, 35 ER 718 (1819) 2 Swans 194, 36 ER 589; subsequent proceedings and also, I would add, by Lord Eldon LC in Paxton v Douglas (1809) 16 Ves 239, 33 ER 975. That is one of the dangers Hart V-C mentioned, and, in my judgment, he fell into it if his decision is to be widely interpreted.
    In addition, as the privilege against self-incrimination was so firmly entrenched in English law before Green v Weaver, I do not see how it could have been open to Hart V-C to carve such a substantial exception out of the privilege, consistently with the rejection by the majority of this court in the Rank Film case of the proposition that the court would not allow the defendant the benefit of the privilege when to do so would enable him to take advantage of his own fraud or other wrongdoing; if it is not permissible to make an exception on a case-by-case basis on such a ground or on the ground that to uphold the privilege would do too great a disservice to justice, it cannot be permissible to make a new and wide class exception on a like ground to cover an individual case.
    There is the further point that if Mr Falconer's proposition is valid, founded on Green v Weaver and Robinson v Kitchin, the considered and, in my respectful view, cogent judgments of this court in the Sonangol case [1990] 3 All ER 283, [1991] 2 QB 310 would have to be rejected as decided per incuriam. The facts of that case cry out for the application of Mr Falconer's principle, if it is valid.
    Finally, the limits of Mr Falconer's proposition are not at all clear. Mr Falconer seeks to limit it—no doubt because he puts it forward on the basis of an implied contract—to cases where the fiduciary relationship or relationship of master and servant or principal and agent came into being before the conduct of which an account is sought in the proceedings. He says that the proposition should not extend to a person who voluntarily and without any prior contract assumes a fiduciary position or other position in which he is accountable in equity; such a person could rely on the privilege against self-incrimination. But in equity the trustee de son tort, or person who becomes a constructive trustee by knowing participation in the fraudulent conduct of a fiduciary, is just as much accountable and on substantially the same principles as the express trustee or the fiduciary, servant or agent who is appointed such under some written contract or document.
    Taking these various factors together, I would hold that we are not bound by Green v Weaver and Robinson v Kitchin. On the contrary, we are entitled to, and should, uphold the decision of Browne-Wilkinson V-C in Tate Access Floors Inc v Boswell, which Hoffmann J followed. I would therefore dismiss the Mirror Group appeal."
  32. Stuart Smith LJ also examined the old authorities at length and agreed that there was no exception from the privilege where the defendant was a fiduciary from whom an account was being claimed. Mann LJ came to the same conclusion.
  33. The third case to which I should refer is Crest Homes plc v. Marks [1987] AC 829. In this case, the question was whether the court should allow a party to use documents obtained from a defendant under a search order in a second action in support of contempt proceedings in the first action. The House rejected the argument that to do so would deprive the defendant of a right to assert the privilege against self-incrimination if discovery had been sought against them because they could have relied on the privilege before the order was executed. (There was also an issue as to the effect of section 72 of the Supreme Court Act 1981 which removes the privilege against self-incrimination in certain intellectual property proceedings where a person is exposed to the risk of proceedings for a "related offence".) Lord Oliver referred to the Comet case and said that a contemnor was not a compellable witness in contempt proceedings against him but could be cross-examined if he gave evidence. At page 858-9, Lord Oliver with whom the House agreed, said this:
  34. "The material which, it is claimed, has been uncovered would clearly have been discoverable on general discovery in that action so far as it related to the 60 house types covered by the 1984 order, although it may well be that an application for discovery of that material specifically for the purpose of supporting a motion for contempt would have been unsuccessful. Thus much, if not all, of the material covered by the implied undertaking in the 1985 action would in any event have had to have been made available in the 1984 action although possibly at a later stage. It is said that on general discovery in the 1984 action the appellants would, so far as they were able to demonstrate that any contempt committed was not a 'related offence', have been able to resist disclosure by pleading the privilege against self-incrimination. That may be right, although if it is it produces the extraordinary result that a defendant, by putting himself in contempt of court, can successfully resist discovery of relevant documents at any stage of the proceedings. Thus logically a defendant who, in response to an order for verification of his list of documents by affidavit, makes inadequate discovery can thereafter resist any application for discovery of particular documents on the ground that to comply would demonstrate that he had been in breach of the earlier order and thus in contempt. I cannot think that that can be right, but it is unnecessary to decide the point since such an objection, if open at all, would have been equally open on the execution of the 1985 order and was not taken. I can, therefore, in the circumstances of this case, discern no injustice to the appellants if the documents are made available for use in the 1984 action. Should the point arise for decision it may be necessary in relation to the production of relevant documents essential to the conduct of proceedings (I say nothing about interrogatories) to reconsider the extent of the privilege against self-incrimination where it is prayed in aid solely on the ground of liability to a motion for civil contempt in those proceedings."

    The final sentence provides support for Mr Higginson's argument. But as Mr Howe pointed out, the final sentence is obiter and Lord Oliver excepted from his remarks the case of interrogatories with which cross-examination on affidavit is comparable. I also note that Lord Oliver uses the word "reconsider" in his final sentence which may suggest a change in the law. Mr Higginson relies on a later passage from Lord Oliver's speech at page 860F-G:

    "The proper policing and enforcement or observance of orders made and undertakings given to the court in an action are, in my judgment, as much an integral part of the action as any other step taken by a plaintiff in the proper prosecution of his claim."

    I refer to this passage below.

  35. In my judgment the privilege against self-incrimination is available in respect of the risk of contempt proceedings in this action. I will now state my reasons for my conclusion.
  36. (1) Rice v. Gordon is very shortly reported. It was doubted by Bridge LJ in the Rank Video Distributors case. Bridge LJ drew attention to the fact that it had been decided before R. v. Garbett. Templeman LJ referred to Rice v. Gordon but he did not approve or disapprove it in terms.
    (2) In the Bishopsgate case, Dillon LJ considered another exception in Green v. Weaver (above). He concluded that that exception was inconsistent with the general privilege against self-incrimination already recognised by the Courts of Equity. He also considered that it was inconsistent with the conclusion in Rank Video Distributors that no general exception could be created where the effect of claiming the privilege would enable the defendant to benefit by his own wrong (see the fourth paragraph under "The subsequent law", above). Rice v. Gordon was not considered by Dillon LJ, but his conclusion would apply by parity of reasoning to the establishment of the exception in the present case.
    (3) Moreover, it seems that there was a controversy in the Courts of Chancery over the privilege against self-incrimination but that there was a general principle established before Rice v. Gordon was decided (see per Dillon LJ in the Bishopsgate case, the authorities cited by him and the subsequent proceedings in Paxton v. Douglas (1812) 19 Ves. 225, 227-8). Rice v. Gordon would appear to be inconsistent with that general privilege.
    (4) It has not been suggested that Rice v. Gordon is binding upon me. It deals only with the risk of prosecution for perjury.
    (5) In holding that the privilege is available in respect of contempt proceedings in this action, I am departing from the decision of Wood J in Emanuel and the decision of Leggatt J in Distributori but in those cases there was not a full citation of the authorities. In addition, each case was concerned with the risk of perjury and the applications were ex parte.
    (6) The conclusion that Rice v. Gordon is not good authority for the special exception for which Mr Higginson contends is consistent with the decision in Comet Products (UK) Ltd v. Hawkex Plastics Ltd. Mr Higginson claims that case is distinguishable because the defendant was already the subject of proceedings for committal for contempt. In this case the defendant is subject to a cross-examination which may or may not lead to proceedings for contempt. It does not seem to me to be a valid distinction that he is giving evidence at this earlier point in time rather than in proceedings for contempt. It seems to me to follow from the fact that Mr Sidhu is not a compellable witness in any contempt proceedings that he should be entitled to the privilege of self-incrimination in these proceedings, particularly as he is sought to be cross-examined on an affidavit sworn pursuant to an order of the court.
  37. An argument was advanced to me based on the policy behind the exception for which Mr Higginson contended. Mr Higginson submitted, deriving support from Lord Oliver's reference to the proper policing of court orders in the Crest Homes case, that there was underlying principle that civil process must be allowed to flow freely and that in turn the plaintiff must be at liberty to pursue his action vigorously. He further submitted that if coercive orders are made they must be readily enforceable and that if a defendant is able to hide behind the privilege against self-incrimination if there is a reasonable apprehension of contempt proceedings the process of cross-examination would be rendered nugatory. Mr Higginson asked (rhetorically) how can the court enforce its orders. It is of course of great importance that the court should insist on compliance with its own orders, but in my judgment there are two answers to Mr Higginson's submission. First, as explained by Templeman LJ in Rank Video Distributors the mere fact that a defendant claims the privilege does not mean that the court cannot bring a defendant to book. Second, if this is a good reason of policy it would equally justify a much wider exception which would virtually destroy the whole privilege. If the privilege should be inapplicable where the court is seeking to enforce compliance with its own orders, it should be equally inapplicable where the court is seeking to enforce a statutory provision or the criminal law. There is likewise no reason why the privilege should if Mr Higginson is correct be inapplicable because there is a risk of contempt proceedings in the instant case, but not if there is a risk of contempt proceedings in some other action. It may be accidental that there are two sets of proceedings (see the Cobra Golf and Crest Homes cases) The policy reason for this exception is the same whether there are two sets of proceedings or one.
  38. There was a further submission by Mr Higginson that it would be odd if the Defendant was prevented from claiming privilege because of the exception for perjury but not prevented from claiming it on the basis of civil contempt. He contended that there was no refuge for Mr Sidhu because in practice what had occurred was also perjury. The answer to this is in my judgment that given by Mr Howe that, if Mr Sidhu is entitled to a privilege on the basis of a risk of proceedings for contempt, he should be able to claim that privilege irrespective of the position in relation to the risk of a prosecution from perjury. The risk of proceedings for perjury may be different from the risk for proceedings for contempt. I do not consider that the fact he may not be entitled to rely on the privilege against self-incrimination in respect of the risk of a prosecution for perjury should disentitle him from relying on the privilege in respect of the risk of contempt proceedings.
  39. For all these reasons I conclude that the privilege against self-incrimination is available in these proceedings for cross-examination of Mr Sidhu in respect of the risk of contempt proceedings in this action.
  40. ***** ***** *****


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