BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Attorney General of Zambia v Meer Care & Desai (A Firm) & Ors [2008] EWCA Civ 1007 (31 July 2008)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/1007.html
Cite as: [2008] EWCA Civ 1007

[New search] [Printable RTF version] [Help]


Neutral Citation Number: [2008] EWCA Civ 1007
Case Nos: 2007 / 1146, 1708, 1709, 1751, 1752

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR JUSTICE PETER SMITH

[2007] EWHC 952 (Ch) and [2007] EWHC 1540 (Ch)

Royal Courts of Justice
Strand, London, WC2A 2LL
31 July 2008

B e f o r e :

LORD JUSTICE TUCKEY
LORD JUSTICE LLOYD
and
LORD JUSTICE LAWRENCE COLLINS

____________________

Between:
THE ATTORNEY GENERAL OF ZAMBIA FOR AND ON BEHALF OF THE REPUBLIC OF ZAMBIA
Claimant Respondent
- and -

MEER CARE & DESAI (a firm) and others

MOHAMMED IQBAL MEER (appeals 1708 and 1709)
NAYNESH GUNVANT DESAI (appeals 1146, 1751, 1752)

____________________

(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Andrew Onslow Q.C. and Adam Kramer (instructed by
Reynolds Porter Chamberlain LLP) for Mr Meer
Nicholas Padfield Q.C., Andrew Veen and Arfan Khan
(instructed by Mr Desai) for Mr Desai
Michael Sullivan Q.C. and Hannah Brown
(instructed by DLA Piper UK LLP) for the Respondent
Hearing dates: 24-27 June, 1-2 July 2008

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Lloyd:

      Para
    Introduction 1
        The two conspiracies 5
        Meer Care & Desai 11
    The grounds of appeal 13
    The proceedings 16
    Mr Meer's main ground of appeal: dishonest assistance 20
    Meer Care & Desai: the firm and its partners 24
    Mr Kabwe and Access Financial Services Ltd 28
    The meeting at the Churchill Hotel 31
    Payments through MCD's client account after the Churchill Hotel meeting 46
        The first payment 46
        The second payment 53
        The first payment from the Zamtrop account 58
        The ledgers 61
        Payments in respect of Harptree Holdings Ltd and Jarban SA 63
        Some other disbursements up to 2002 66
        The BK payments 76
        Payments and other events after 2001 77
    The OSS investigation 83
    The position taken in the Defence 97
    Mr Meer's evidence 103
    The judgment 144
        The individual Defendants 157
        Mr Meer 160
        Mr Meer not having told Mr Desai about the Churchill Hotel meeting 164
        Factors relevant to probability 169
        The Churchill Hotel meeting 177
        The first payments into and out of the client account 185
        Disbursements 192
        Payments out after Zamtrop payments in 203
        Harptree Holdings Ltd 210
        Mr Meer's conduct after June 2002 220
        The Blue Card warnings 227
        The judge's conclusion on the Zamtrop conspiracy 241
    The BK conspiracy 244
    Dishonesty: discussion 251
    The Zamtrop conspiracy: discussion 271
    The BK conspiracy: discussion 299
    Other matters 301

    Introduction

  1. This is the judgment of the court. It is given in relation to appeals arising from two orders made by Mr Justice Peter Smith following a long and unusual trial conducted between 31 October 2006 and 27 February 2007. By the proceedings the Attorney General of Zambia, on behalf of the Republic of Zambia, sought to establish civil liability on the part of up to twenty individuals and companies, to make good losses suffered by Zambia as a result of corrupt practices during the term of office of the former President, Dr Frederick Chiluba. The present appeals are by two of the defendants, partners in the firm of solicitors, Meer Care & Desai, Mr Meer and Mr Desai. The `judge's principal judgment is at [2007] EWHC 952 (Ch). All our references to the judgment are to that judgment, and references to paragraph numbers, unless otherwise stated, are to paragraphs in that judgment.
  2. Because this judgment is, necessarily but regrettably, very long, we will begin by stating the outcome of the appeals. This is that Mr Meer's appeal is allowed, the orders against him and against the firm (and therefore against Mr Desai) set aside, and the claims against them dismissed.
  3. In general, we will refer to the Claimant and Respondent in this judgment as Zambia, as if the Republic itself, rather than its official representative, were party to the proceedings.
  4. The claim was put principally on the basis of conspiracy to defraud Zambia and, as regards those less directly involved, dishonest assistance in breaches of fiduciary duty. The primary conspirators were Dr Chiluba himself, Mr X F Chungu, Director-General of the Zambian Security and Intelligence Services (ZSIS) and Mrs Stella Chibanda, a senior official in the Zambian Ministry of Finance. Three different conspiracies were alleged, of which two were established, both being relevant to these appeals: the Zamtrop conspiracy and the BK conspiracy. The former is much the more important.
  5. The two conspiracies

  6. The Zamtrop conspiracy was named after a bank account, known as the Zamtrop account, held at the Zambia National Commercial Bank Ltd (Zanaco) in London. Some US$52 million was alleged to have been transferred from Government funds into this account, ostensibly so that it could be expended for the benefit of ZSIS. It was alleged that this money was in fact paid on from there to various places, including accounts of two firms of solicitors, one of those being Meer Care & Desai (MCD), from which they were applied for the private benefit of Dr Chiluba, Mr X F Chungu and others. The Zamtrop account was opened in December 1995 and became operational later that month. Mr Chungu was, in effect, its sole signatory. More than US$9 million was paid out of the Zamtrop account to MCD's client account. MCD's client for these purposes was (in most cases) a Zambian company called Access Financial Services Ltd (AFSL), run and controlled by Mr Faustin Kabwe.
  7. The Zamtrop account was set up, ostensibly, to be the channel for the payment to two American companies, Systems Innovation Inc ("Systems") and Wilbain Technology Inc ("Wilbain"), of money which was said to be due to these companies for services rendered for the benefit of ZSIS. In fact the sums paid into the Zamtrop account far exceeded any sums properly due to these companies. Payments to the two companies started in May 1995 and until November 1995 they were made through other accounts. Once the Zamtrop account was in existence, it was used as the channel for these payments. Over the whole relevant period some $30 million was paid into the Zamtrop account to be paid on to Systems, but only $14 million was in fact so paid, while of $12 million paid in to cover payments to Wilbain, only $355,000 was paid on to Wilbain.
  8. Grant Thornton conducted a tracing exercise, as experts jointly instructed on behalf of Zambia and of Cave Malik, the Second Defendant, and Bimal Thaker, the Eighth Defendant, to identify money originating in the Ministry of Finance which was paid to the Zamtrop account, and to trace where it had gone from there. They identified $7,021,020 as having been paid from the Ministry into the Zamtrop account and then out to MCD's client account between 21 May 1996 and 4 April 2001. The judge held that Government money had gone into the Zamtrop account from other sources as well: see paragraph 274 of the judgment.
  9. The BK conspiracy related to $20 million of Government money paid into one or other of two bank accounts, one called the Saloman account with ABN-AMRO, the other called the BK account, with KBC Bank Brugge Belgium, the initials BK being those of Betti Katumbi, sister-in-law of Mr Raphael Soriano. Mr Soriano was appointed to represent the Government in negotiating and purchasing military equipment. A sales contract was concluded on 30 August 1999 with a Bulgarian vendor company. Soon after that a remarkable facility agreement was entered into between the Government and Mr Soriano under which the Government had to pay money up front which was to be paid on to the vendor. This agreement was later varied orally, and ultimately required the Government to pay $20 million to one or other of the two bank accounts mentioned, which were under the control of Mr Soriano. The judge was satisfied that no payments had been made to the vendor, no arms had been delivered, the money in the two accounts had disappeared, and that the whole exercise had been no more than a cover for fraud.
  10. In respect of both conspiracies the judge held that Dr Chiluba, Mr X F Chungu and Mrs Chibanda all acted in breach of fiduciary duties owed by them to Zambia, and they were also parties to conspiracies to defraud Zambia of money both by the Zamtrop conspiracy and by the BK conspiracy. In turn he held that Mr Kabwe (for his part in both conspiracies) and Mr Soriano (as regards the BK conspiracy) were in breach of fiduciary duty and had dishonestly assisted the breaches of fiduciary duty on the part of the primary conspirators, as well as participating in more specific conspiracies relating to the sums which they received or controlled.
  11. As against parties more distant from the primary conspiracies, the claim was limited to sums traced by Grant Thornton as having originated in the Ministry of Finance and as having been received by the particular defendant, plus the money received by that defendant which could be proved otherwise to have come from the Government. In relation to the Zamtrop conspiracy the principal amount claimed against MCD was $7,021,020, which had been traced through from the Ministry of Finance via the Zamtrop account to MCD, plus $1,612,768 in respect of the additional Government money identified in paragraph 274 of the judgment. The total amount which had been paid from the Zamtrop account to MCD was $9,260,000, so the aggregate claim of $8,633,788 did not exceed that amount. As regards the BK conspiracy almost $1.3 million had been paid to MCD, but a credit of over $840,000 fell to be allowed, so the net amount claimed was $456,118.
  12. Meer Care & Desai

  13. MCD is a firm of solicitors of which there are only two partners properly so-called: Mr Meer and Mr Desai. As already mentioned, large sums of Government money went into its client account. These were then paid out, on the instructions of Mr Kabwe, for purposes which the judge held not to be a legitimate application of Government money – in many cases the purpose was the personal benefit of Mr Kabwe or other individuals, including Dr Chiluba and Mr X F Chungu. Mr Meer was directly involved in the misapplication of this money. The judge held that he acted dishonestly and was himself a conspirator, though only to the extent of the funds passing through his firm's client account. Mr Desai was not alleged to be dishonest or a conspirator. He was held liable on the basis of vicarious responsibility, under section 10 of the Partnership Act 1890, for the acts of his partner.
  14. The claim was put both in conspiracy and on the basis of constructive trust, through dishonest assistance in the breach of fiduciary duty of the primary conspirators. The judge held that MCD was liable on both counts, the sum for which the firm was liable being the same on each head of liability. Before us the main debate focussed on the constructive trust claim. The same facts are relied on to make good each basis of liability. We propose to concentrate on the constructive trust aspect.
  15. The grounds of appeal

  16. By their respective appeals Mr Meer and Mr Desai challenge the judge's findings of liability. Mr Meer contends that the judge's decision that he had known that what he was assisting was dishonest conduct on the part of Mr Kabwe and Mr X F Chungu was wrong, not being based on proper or sufficient findings against him, or a proper consideration of his evidence and the circumstances generally. He also has secondary grounds of appeal, first that the judge had wrongly rejected a limitation defence as regards matters occurring more than 6 years before the issue of the Claim Form and secondly that the judge had been wrong not to allow him more credit against what would otherwise be his liability on account of assets derived from money which had passed through his firm's client account, and which were later recovered by Zambia.
  17. The primary ground for Mr Desai's appeal is that the judge's decision that he was liable for Mr Meer's acts vicariously under section 10 of the Partnership Act 1890 was inconsistent with the judge's findings of fact, and that such findings as might have supported the decision were not justified by the evidence.
  18. In addition Mr Desai has a separate appeal against the judge's order for costs, even if the judgment against him is otherwise right. His application for permission to appeal in that respect was adjourned to the hearing of the main appeals.
  19. The proceedings

  20. These appeals need to be seen in the context of the proceedings as a whole. The Claim Form was issued on 6 October 2004. Freezing orders were obtained against a number of defendants later in 2004. From an early stage the case was reserved to Mr Justice Peter Smith, who heard all the case management conferences, and the trial. The case proceeded against 20 defendants, some based in Zambia, some in England, and others elsewhere. There was a distinct issue as against some of the defendants relating to the ownership of some properties in Belgium. The judge held a hearing as to that in 2005, which led to the issue being conceded in favour of Zambia. The judge was determined to see that the case be brought to trial without delay, despite a number of serious problems as regards its management. His directions were challenged unsuccessfully before the trial by several of the Zambian parties: [2006] EWCA Civ 390. The main trial commenced on 31 October 2006, two years after the issue of the Claim Form. It ran for 51 days and concluded on 27 February 2007. The judge had set this timetable, with the benefit of estimates from Counsel of the time required for the various stages of the trial, and he applied the timetable with reasonable rigour in order to be able to complete the trial in the time allowed. In the course of the trial the judge sat for two weeks or so as a Special Examiner in Lusaka, so that defendants based in Zambia who wished to give evidence, but who were not allowed out of Zambia because of pending criminal proceedings there, could do so in the presence of the judge, rather than by means of a video link. The proceedings in Zambia were protected by ring-fencing arrangements put in place in order not to jeopardise the position of those who were also accused in the criminal proceedings. A video link was maintained in place throughout the proceedings so that those in Zambia could observe what was happening in court in London when the judge was sitting here, and vice versa. By no means all the defendants took part in the proceedings, despite the protective arrangements to which I have referred.
  21. Having heard 47 witnesses of fact for Zambia, as well as those of the defendants who chose to participate in the case and to give evidence, and with documents comprised in more than 100 trial bundles to cope with, the judge handed down his judgment on 4 May 2007, just over two months after reserving judgment. After submissions as to the form of order to give effect to his judgment, he made an order on 4 May by which thirteen of the defendants were made liable: Dr Chiluba, Mr X F Chungu, Mr Shansonga, Mrs Chibanda, Mr Aaron Chungu, Mr Faustin Kabwe, Mr Francis Kaunda, Boutique Basile, Nebraska Services Ltd, Raphael Soriano, Mr Meer, MCD as a firm (so as to affect Mr Desai), Mr Bimal Thaker (another solicitor) and his firm Cave Malik, with a finding that his father Mr Bhupendra Bhailal Thaker was a partner in the firm (and thus also liable). Certain consequential and quantification issues were reserved for further argument. That argument led to a further judgment, [2007] EWHC 1540 (Ch), and a further order dated 29 June 2007 by which the sums due from each party liable (as listed above) were finally determined. Dr Chiluba was ordered to pay US$57,124,422.72 and both Mr X F Chungu and Mrs Chibanda sums exceeding $56 million. MCD was ordered to pay $11,135,665.61, and, together with others, a substantial proportion of Zambia's costs of the proceedings. The judge refused permission to appeal.
  22. Appellant's Notices were filed by Mr Meer and Mr Desai, Mr Bimal Thaker and his father Mr B B Thaker, Mr Shansonga, Mr Aaron Chungu, Mr Faustin Kabwe and Boutique Basile. Permission to appeal was granted by this court, on paper or after an oral hearing, to Mr Meer and Mr Desai, Mr Bimal Thaker and his father, Mr Shansonga and Boutique Basile. The appeals by Mr Bimal Thaker and his father have been compromised. Mr Shansonga withdrew his appeal at a late stage. The appeal by Boutique Basile, which raised altogether different points, has been heard by another constitution of this court: see [2008] EWCA Civ 754. We are therefore left with appeals by Mr Meer and Mr Desai as the only remaining challenges to the judge's orders.
  23. The case was a remarkable example of effective proactive judicial case management. The judge was imaginative and determined in seeking to ensure that the case was brought to trial with minimum delay, while ensuring fair treatment of all parties. The judge recorded that he had been much assisted by the response of the lawyers involved for all parties to the timetable which he imposed, and by their presentation of their cases at trial. In turn the appeals involved some 40 bundles of materials, but the court was much assisted by the careful presentation of the parties' respective submissions both in written and in oral form.
  24. Mr Meer's main ground of appeal: dishonest assistance

  25. The first ground of appeal on Mr Meer's part involved a contention that the judge had approached the question of constructive trust liability on the basis of the wrong legal test. This would have involved a comparison between statements on the subject in recent cases in the Privy Council, the House of Lords and the Court of Appeal. The judge undertook that task, with further assistance from extra-judicial observations on the part of Sir Anthony Clarke MR and others. However, shortly before the appeals came on for hearing, Mr Onslow Q.C., for Mr Meer, suggested that it would not be necessary for the court to embark on that exercise. He contended that Mr Meer could not be held to be liable in constructive trust unless he either knew that the instructions which he carried out involved, in effect, handling stolen money, or he had a clear suspicion that this was the case which he chose to ignore. He accepted that if Mr Meer was found to have either of those states of mind, then he was correctly held liable. The judge applied that test, and held Mr Meer liable on that basis; Mr Onslow's argument was that the test was correct but it was not correctly applied on the facts. Mr Sullivan Q.C. for the Respondent accepted, indeed asserted, that this was the correct test. In those circumstances the court did not need to consider the recent cases.
  26. If either aspect of the test is satisfied on the facts, Mr Meer would be correctly characterised as dishonest. Plainly that would be so if he actually knew that his client had no right to require the relevant funds in the firm's client account to be paid out to the particular person or for the particular purpose for which he instructed Mr Meer to apply the money. Equally, if Mr Meer had a clear suspicion that this was the case and he deliberately decided not to enquire in order to avoid having confirmation that it was so, that is properly characterised as dishonesty, of the kind often called blind-eye, or Nelsonian: see for example Lord Scott of Foscote in Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd [2001] UKHL 1, [2003] 1 AC 469, at paragraphs 112 to 116. The facts of which knowledge was to be imputed in that case did not involve dishonesty, but the principle of establishing knowledge in this way is the same whether what is to be found to be known is dishonesty or something else – in that case the unseaworthiness of a vessel.
  27. Accordingly, the issue on the first and main ground of appeal is one of fact, namely whether the judge rightly applied the test of actual or Nelsonian knowledge so as to find that Mr Meer knew that to comply with his instructions as regards payment of money out of his client account involved, essentially, handling stolen money. In order to address this ground of appeal, therefore, it is necessary to deal rather extensively with several aspects of the facts of the case. In doing so we have to consider contemporary documentary material, evidence and submissions to the Office for the Supervision of Solicitors from 2003-4, and the evidence given in the course of the trial, as well as some other material.
  28. The essence of Mr Meer's position on this aspect of the appeal is that the judge's finding, that he knew (actually or on a Nelsonian basis) that the money passing through the firm's client account was Government money which was being, or had been, stolen, and that the instructions which he received and implemented were for the improper and dishonest application of those funds, as part of the theft, was not based on a proper or fair assessment of the evidence, that the judge's errors were so substantial that the finding could not stand, and that the Court of Appeal should make its own finding on the point. He relied on the proposition that there is no evidence of dishonesty and no possible motive on his part, there is no dispute as to any of the objectively ascertainable primary facts, and the only issue is as to his state of mind. It is accepted that what was going on was a dishonest exercise in stealing Zambian Government money, but Mr Meer contended that he had no idea that this was what was happening. He may have been negligent in failing to take precautions, on his own behalf or otherwise, but he did not in fact know or suspect that the operation was fraudulent. He argued that not only did he have no possible motive for giving dishonest assistance to such a scheme, but there were strong reasons why he should not have done, and why it should not be supposed that he would. We will elaborate on those in due course, but it is correct to say that really the only questions of fact which the judge had to decide on this aspect of the case were as to Mr Meer's state of mind at different times.
  29. Meer Care & Desai: the firm and its partners

  30. Mr Meer was born in South Africa in 1940, and was brought up there until he left school. He moved to this country where eventually he was able to read for the Bar and was called as a barrister in 1967. He was unable to return to South Africa because of the apartheid regime. He and his family had a history of protest activity against that regime. Moreover, he had married a woman of different racial origin, and South African law would have prohibited them from living together. Instead, he moved to Zambia to complete his legal studies, where he was admitted to the fused legal profession in 1968. He was in private practice in Zambia from then until 1977. After that, until 1986, he worked as an in-house lawyer for companies including acting from 1982 to 1986 as General Counsel to a company called ITM International, in London, and for part of that time as Vice President of one of its subsidiaries, Meridien International Bank. In 1987 he re-qualified as a solicitor in England, and joined the firm which came to be called Meer Care & Desai, in partnership with Mr Desai. He retained and still retains family and professional contacts in South Africa, where he was admitted as an attorney, conveyancer and notary public in the 1990s. He acted as a lawyer for Nelson Mandela while the latter was still in prison, continued to do so after his release, and is still involved in several trusts associated with Mr Mandela. Mr Mandela provided a character reference for him in 2004 in relation to an investigation by the Law Society, in which he said that he had found Mr Meer to be "scrupulously honest, meticulous, tactful and discreet". Thus, by 1995 he was 55 years old, and had a successful international legal practice.
  31. The areas of practice in which Mr Meer has been active are primarily commercial and business affairs, often with an international aspect. He presented himself as having considerable knowledge and experience in business matters, including on an international scale, and asserted that his professional standards of honesty and probity were of the highest. The judge commented at paragraph 543 that he was "clearly intelligent and very experienced".
  32. Mr Desai was born in Zambia in 1960. His family left Zambia in 1972 and he has not been back since 1975. He said that he had little interest in current affairs in Zambia. He was admitted as a solicitor in England in 1986 and then joined the firm which became MCD. During his period of private practice in Zambia, Mr Meer had been Mr Desai's uncle's lawyer, which is how the two men knew each other. Mr Meer is the managing and senior partner in MCD, with slightly more than a 50% share in the partnership. Mr Desai said that his practice was broadly commercial, including conveyancing (which Mr Meer does not do), and he has his own clients, whom he described as ranging from the ordinary man in the street to successful domestic and international businessmen and the great and the good.
  33. Mrs M Meer was held out as a partner of the firm, but in fact she was salaried, and therefore not a partner properly so-called. Mr Care was a consultant.
  34. Mr Kabwe and Access Financial Services Ltd

  35. Mr Meer had known Mr Kabwe of old, from the time when Mr Meer worked in Zambia. Mr Kabwe had qualified as a chartered accountant and, Mr Meer said, was of impeccable reputation until the revelation in 2002 of the matters which came to be the subject of these proceedings. Mr Kabwe had been a client of Mr Meer in Zambia, and later had (like Mr Meer) worked for ITM International and for Meridien Bank (in both cases as chief financial officer). MCD acted for Mr Kabwe on a property transaction in London in 1992, in respect of which it had a ledger account, 2535/2. Between September and November 1995 MCD received three payments to the credit of Mr Kabwe which were credited to that ledger account, arising indirectly from that property transaction.
  36. In April 1995 Mr Kabwe made contact with Mr Meer in London, and told him that he was setting up a new company, which was AFSL, to provide financial services to businesses in Zambia, and that he would like MCD to act as AFSL's London solicitors on various matters arising from its business.
  37. In July 1995 AFSL applied for, and in October 1995 it was granted, a licence to carry on financial services, but not banking, by the Bank of Zambia. Mr Meer expected that he would be asked to do legal work for AFSL, or for or in relation to its clients, but he had not had any such instructions by the time of the meeting which we now describe.
  38. The meeting at the Churchill Hotel

  39. In the autumn of 1995 Mr Kabwe asked Mr Meer to attend a breakfast meeting with himself and Mr X F Chungu at the Churchill Hotel, Portman Square, in London. Neither Mr Chungu nor Mr Kabwe gave evidence before the judge, so he had only Mr Meer's account of the meeting. Mr Meer did not know Mr Chungu, but knew who he was. According to his account, at the meeting Mr Chungu first asked Mr Meer to undertake a diplomatic role on behalf of Zambia as between Zambia and South Africa, explaining this request by reference to Mr Meer being known to be the lawyer for Mr Mandela, at that time President of South Africa. Mr Meer declined that suggestion. Next Mr Chungu and Mr Kabwe explained that AFSL would be performing services for ZSIS and that it was intended that money be remitted to MCD for the credit of AFSL in respect of such services. Mr Chungu said that AFSL would be engaged in governmental activities, though he did not explain the nature of these. Mr Meer said that he agreed to assist AFSL (and in turn Zambia) in dealing with remittances for the credit of AFSL. He said he had no reason to doubt that AFSL was carrying out work for the Zambian Government, and he did not enquire into the precise nature of this work. He assumed that, because it had to do with ZSIS, there would be a desire for secrecy. He believed or assumed that AFSL did not have a bank account in England. He said that he was motivated, among other things, by a desire to assist Zambia, a country to which he was grateful for enabling him to embark on his legal career at a time when he would have been unable to practise in South Africa. The judge summarised the meeting at paragraph 544 of his judgment, where he describes the summary as being Mr Meer's contention. The text is taken from the written closing submissions of Counsel for Zambia, so it is their version of Mr Meer's evidence, rather than Mr Meer's own version. Though he did not say so in terms, it is clear that the judge accepted the account of the meeting, as so summarised. The three elements were identified as follows (we have inserted two commas in paragraph (1) for clarity):
  40. "(1) XFC asked him to act for AFSL, who would be performing various services for ZSIS, in the receipt and disbursement of Government monies.
    (2) He assumed involvement of MCD was required for reasons of discretion in the conduct of the affairs of ZSIS although he does not suggest he was given any explanation for using MCD.
    (3) He agreed to assist AFSL (and thus the Republic he believed) in the receipt and disbursement of these monies."
  41. Mr Onslow submitted that this summary over-simplified and distorted what was unchallenged evidence on Mr Meer's part. For one thing, Mr Meer said that the request that he act for AFSL came jointly from Mr Chungu and Mr Kabwe, rather than just from Mr Chungu, although Mr Chungu took the lead in the discussions. He also submitted that to refer, as the judge did, to "the Churchill Hotel Agreement" suggested something far more formal and specific than the informal discussion that in fact took place, with a view to Mr Meer undertaking a particular service for a company in relation to which, though it was not yet a client, nevertheless there had already been separate discussions about the firm doing work for it, and its owner was an existing client.
  42. In his witness statement Mr Meer described what the judge summarised at point (1) above in these words: AFSL would be performing services for ZSIS and it was intended that monies should be remitted to MCD "for the credit of AFSL in respect of such services", and AFSL "would be engaged in governmental activities", the nature of which was not explained.
  43. So far as the judge's points (2) and (3) are concerned, Mr Meer's evidence in his witness statement was this:
  44. "34. I agreed to assist AFSL (and in turn, Zambia) in dealing with the remittances of these monies for its credit. I had no reason to doubt that AFSL was carrying out work for the Zambian government. I did not inquire into the precise nature of this work. ZSIS was an intelligence service and I assumed that by its very nature, it would not always want its activities to be in the public domain. I knew, for instance, that its expenditure was not subject to parliamentary scrutiny, and that it reported directly to the President. I assumed that the need for discretion in the conduct of its affairs was the reason that monies were remitted to Meer Care and Desai for AFSL's purposes and not directly to AFSL. That is not to say that I thought that either Mr Chungu or Mr Kabwe was engaged in any attempt to conceal the destination of funds from the Zambian authorities. My understanding (from admittedly limited experience) is simply that every intelligence agency (whether MI5/MI6 or ZSIS) conducts its affairs with discretion. To enquire further would have necessitated my questioning the President of Zambia, since he was Mr Chungu's only immediate superior. I trusted Mr Kabwe."
  45. Mr Onslow made a number of points about the meeting, on the basis of Mr Meer's account of it. It was relatively informal. It was apparent to Mr Meer that there had been prior discussions between Mr Chungu and Mr Kabwe about the proposition to be put to Mr Meer. AFSL would be carrying out services, unspecified, for ZSIS, doing governmental activities. ZSIS would use both AFSL and MCD's client account to disguise its role in relation to the activities undertaken by AFSL. Mr Meer was not asked to monitor the application of the funds, but merely to act for AFSL in relation to the remittances out of the funds provided. MCD would not be paid for this service, nor would the firm do anything other than implement the instructions given from time to time by Mr Kabwe on behalf of AFSL. It was not suggested that this would be the only activity on which MCD acted for AFSL, nor that the money remitted under this arrangement would be the only funds that the firm would receive to AFSL's credit. All of those points seem to be fairly made on the basis of Mr Meer's evidence as to what was said at the Churchill Hotel meeting, which was not in itself challenged in cross-examination.
  46. It is clear that this meeting was unusual and important in a number of respects. It was Mr Meer's first encounter with Mr X F Chungu of whom he knew, and who the judge described as being of an "intimidatory nature" (paragraph 138) and "not a man to be trifled with" (paragraph 427). The judge also said that Mr Meer was initially wary about becoming involved with ZSIS, though Mr Onslow submitted that there was no evidential basis for that finding. Mr Meer said in his witness statement that he was curious to find out what Mr Chungu wanted to see him about, and that he was not unused to dealing with high ranking government officials. Whatever he knew of the operations of security services, he had never before been asked to do anything to assist such operations. Moreover, although he described his firm's activities as including a wider range of services, especially for foreign-based clients, than would perhaps be normal for an English solicitors' firm, there was no other client for whom the firm had offered a service which was essentially that of receiving and disbursing money, unconnected with legal services. He did expect to do legal work for AFSL, or on its behalf for its clients, but he was not led to expect that the assistance which he was asked to provide by Mr Chungu and Mr Kabwe at this meeting would be connected with legal work.
  47. Zambia asserted that Mr Meer was a party to a conspiracy with Mr Chungu and Mr Kabwe by his agreement to the request put to him at this stage. It is plain from the judge's other findings (and it is not disputed on this appeal) that Mr Chungu and Mr Kabwe were already preparing to implement the Zamtrop conspiracy, and that they approached Mr Meer in order to find a solicitor whom they could use to assist in laundering the money paid into the Zamtrop account. AFSL itself may well have been set up to be used for the conspiracy. It may be that the invitation to Mr Meer to represent the Government in diplomatic relations with South Africa was not seriously meant, and was intended to encourage him to believe that the approach was official, perhaps to flatter him (as it did), and so to disguise the true purpose of the approach.
  48. The judge held, relying expressly on Mr Meer's background of honesty and integrity, that he did not join the conspiracy at that stage (paragraph 568). It follows from this finding that the judge accepted that Mr Meer took what was said to him in the course of the meeting at face value, and believed it.
  49. Mr Meer did not record the meeting or the discussion in any file note, still less any letter to Mr Kabwe or anyone else, nor did he require a letter of instruction from Mr Kabwe, and he did not ask any question in the course of the meeting, or thereafter, as to how he was to proceed in respect of remittances to be made under the arrangement to which he had agreed. Nor, as the judge found, did he tell Mr Desai of the meeting in advance or of the discussion at it afterwards. Mr Meer proceeded on the basis that discretion or secrecy was likely to be a requisite of any secret service activity, and was implicitly part of the reason for the approach to him.
  50. A fair point could be made that it might be difficult to know, from the outside so to speak, whether a particular disbursement of money was or was not for the purposes of ZSIS. Mr Meer did not raise the question, which might have been regarded as desirable for his own protection, as to how he was to be satisfied that an instruction for payment was one that it was proper for him to fulfil as being for the purposes of ZSIS. He never sought any such protection, either at the outset or later when he was instructed to make payments out. His position was, consistently thereafter, that it was not necessary for him to do anything other than receive Mr Kabwe's instructions as to a payment to be made, and to act on it. Mr Sullivan showed us that his expressed position shifted over time in a number of respects, but he never did question any instruction that Mr Kabwe gave him as regards the disbursement of money. The essence of his case is that he did trust Mr Kabwe, that he believed that Mr Kabwe was trusted by ZSIS, and that the arrangement was for ZSIS and Mr Kabwe to agree between themselves what Mr Kabwe was to do on behalf of ZSIS, and what payments were to be made to whom, and it was not his task or responsibility to enquire or to satisfy himself that the payments he was told to make were proper, so that enquiry on his part was not necessary.
  51. Between November 1995 and April 2001 large sums were credited to one or another of various ledgers in MCD's client account, on the instructions of Mr Kabwe. Many of these payments came straight from the Zamtrop account. Four of them, at the end, came from the BK account. On the other hand, at least $3 million of the payments received came from sources which are not alleged to have been Government money. Most of these moneys were paid out on Mr Kabwe's instructions for different purposes, some to AFSL in Zambia, some to Cave Malik, some to Mr Kabwe or his family, and others to various third parties.
  52. The underlying reality, as the judge found, is that almost all of the payments from the Zamtrop account, and all four of the BK payments, emanated from the Ministry of Finance or from other Government sources, and that none of the payments out of the MCD client account was applied for the benefit of ZSIS or at its direction. They were all used for the personal benefit of Dr Chiluba, Mr Chungu, Mr Kabwe or others involved in the conspiracies. In effect, each of the two conspiracies was a way of stealing large sums of money from the Government, and of laundering the money in such a way that the theft would not be apparent.
  53. Mr Meer understood that all of the Zamtrop payments came from the Government. Given that there were other credits which did not, or did not appear to, come from the Government, his case was that he did not understand any other payments, and in particular the BK payments, to represent Government money. As regards the payments out of the client account, his evidence was that he did not know or suspect that they amounted, in effect, to handling stolen Government money.
  54. The issues for the judge were, therefore, whether Mr Meer knew that the source of the BK payments was Government money, and whether he knew that the Zamtrop money and the BK money was stolen money, either already in his client account or at any rate once it was paid out on the instructions of Mr Kabwe. In either respect, it is sufficient for Zambia to show either that Mr Meer actually knew that it was so, or that he had a clear suspicion that it was and deliberately chose not to enquire, so that he would not be told the truth.
  55. In order to evaluate the challenge mounted by Mr Onslow, on behalf of Mr Meer, to the judge's finding that Mr Meer had the knowledge necessary for a finding that he was a dishonest assister and a conspirator, it is necessary to set out some of the facts at some length.
  56. Payments through MCD's client account after the Churchill Hotel meeting

    The first payment

  57. On 30 November 1995 MCD received $249,998.51, which was placed to the credit of a new ledger 2535/1, identified as FM Kabwe Commercial. That was the first payment said to be relevant to the involvement of MCD in relation to the Zamtrop conspiracy. It is not in fact part of the amount for which Zambia claims to establish liability, but it is nevertheless relevant as part of the story.
  58. The meeting at the Churchill Hotel is not dated more precisely than the autumn of 1995, but it preceded the receipt of this sum. The Zamtrop account had not been opened by then, though this payment did come from Zanaco, the state-owned bank at which the Zamtrop account came to be established during December 1995. It also came by virtue of an instruction which had the initials XFC/DN. No doubt it was authorised by Mr X F Chungu. Mr Sullivan submitted that Mr Meer's evidence in his witness statement showed that he regarded it as having been paid and received as a result of the meeting at the Churchill Hotel, and as being the first payment of money which he had agreed to handle in accordance with the request made in the course of that meeting. Mr Onslow took issue with that, but both agreed that, from their different standpoints, it is instructive to consider how Mr Kabwe and Mr Meer respectively proceeded in respect of this money.
  59. Mr Kabwe wrote first to Mr Meer on 23 November, about another matter. In the course of that letter he said that he was expecting a fairly large payment into the account "as discussed", and asked to be notified of its receipt as he had "some urgent disbursements to make". On the next day he wrote to MCD to say that he had instructed Zanaco to remit $250,000 to them, and instructed the firm to "hold the same to my credit until further instructions".
  60. Mr Meer opened a new ledger account to which this receipt was credited, 2535/1, and identified it as FM Kabwe Commercial to distinguish it from the private matters to which the existing ledger 2535/2 related. A new ledger would in any event have been needed for US dollar payments. Mr Meer said in his witness statement (paragraph 42) that he probably ought to have had the new ledger identified as relating to AFSL, not Mr Kabwe, because it had been made clear to him by Mr X F Chungu and Mr Kabwe that it was AFSL that would be carrying out services for ZSIS, and therefore AFSL would be his client. He also said, at paragraph 41, that he had been expecting money to come in for AFSL as a result of the meeting, and was therefore not surprised when it came in.
  61. On 7 December 1995, on Mr Kabwe's instructions, the firm paid him $4,300 cash (as well as £5,000 out of his personal ledger, 2535/2). On the same day he gave instructions to pay $40,000 to Mr Swatulani Munthali and $20,000 to Mr Osman Samantar. Both instructions were duly carried out. On 20 December Mr Kabwe gave further instructions to transfer $15,321.45 by wire transfer to a bank account in New York for the benefit of AFSL, to "come out of the recently opened US $ account in my name". On 21 December Mr Kabwe gave instructions to make "the following further transfer from the US $ account", namely $75,000 to Sports Simulation Inc, at another bank account in New York. Both these instructions were implemented.
  62. The four letters of instruction to the firm's bank to make these several transfers were signed by both Mr Meer and Mr Desai. The firm's mandate to its bank required two partners to sign any such instruction, though with a fallback arrangement, if only one was available, whereby the single signature was verified by a special authorisation code. Mrs Meer, as a salaried partner, was a signatory, but very rarely signed any such instruction. Mr Desai signed every instruction relevant to this case, with Mr Meer signing the large majority of them as well.
  63. On 2 January 1996 Mr Kabwe instructed Mr Meer to pay £5,000, which came out of his personal ledger, to Atlas Trading Ltd, by credit to a London account, "to refund Mohammed Omer for assistance availed to me over the holiday period". That instruction, and a further instruction on or about 8 January 1996 to remit $12,000 to a bank account in Los Angeles for Mr Chabala Kaunda (who, according to the evidence, is a son of Mr Francis Kaunda, the chairman of AFSL), were implemented by letters to the firm's bank on 3 and 8 January.
  64. The second payment

  65. On 22 January 1996 the firm's client account received the second relevant remittance, of $373,988.68, from Paine Webber. On the same day Mr Kabwe had instructed the firm to remit $15,000 to his wife, Mrs Irene Kabwe, at a bank account in New York who, it was said "urgently requires some money to settle outstanding commitments". The firm gave the requested instructions to their bank on the next day. Following the receipt of the second remittance, Mr Kabwe gave a series of further instructions for payments. On 26 January his fax to Mr Meer said:
  66. "I have a number of payments to make, but I am not quite sure whether there is enough money left for this. Please advise as soon as further funds are received, which should be any time now."
  67. Subject to the availability of funds he authorised payments of $5,000 to an account in Japan for the benefit of Tokyo Overseas Corporation, the remitter being identified as ALBS Investments Ltd, Lusaka, and of £6,000 to an account in England for the benefit of Mr M C Mok and Mrs J A Mok. The latter was to come out of Mr Kabwe's sterling account (i.e. the private ledger 2535/2) and was described as being payment for a vehicle which Mr Kabwe was buying in Zambia from Mr Mok.
  68. On 30 January Mr Kabwe instructed the firm to make three more US dollar payments "from funds recently received": $50,000 to Rajani Investments Inc, at an account in Canada, the remitter to be identified as Laiton Simbeye; $50,000 to an account in New York for the benefit of AFSL; $20,000 to an account in Australia for the credit of Grove International Pty Ltd, the remitter being identified as Kabelenga Pharmaceuticals Ltd. It seems that the last of these instructions required discussion as Mr Meer asked Mr Kabwe to telephone him urgently, and the identity of the payee changed (to that which we have identified) from the name given in the original instruction. The instructions were implemented by instructions to the firm's bank on 31 January. On 20 February Mr Kabwe instructed the firm to make two payments of $100,000, one to Kudu Enterprises Ltd, as from Salim Patel, at an account in Leicester, and the other to an account in New York for a bank in Dubai, for the ultimate benefit of Alnida Textiles and Ready Made Garments Trading Est, Dubai, as from Aslam Aslam. The firm duly obliged on 4 March, and on 6 March, at Mr Kabwe's request, Mr Meer sent him a reconciliation of the dollar and sterling accounts, showing credit balances of $92,558.64 and £13,081.12.
  69. On 8 March the firm instructed its bank to pay $16,872 to MCFI International Co Ltd in Mauritius, on behalf of Mr Kabwe. Later in March, after two small payments of sterling cash to Mr Kabwe, the firm instructed its bank, on Mr Kabwe's instructions but as from AFSL, to remit a sum in Japanese yen which was debited as $52,580.28 to a bank in Japan for the credit of Mitsui & Co Ltd, said to be in respect of "vehicle order from Toyota Zambia". At the same time, the firm paid $6,000 cash (and a smaller sum in sterling) to Mr Kabwe. In April on Mr Kabwe's instructions the firm arranged for a bank draft for $2,940.50 to be issued in favour of American Express Company, for the benefit of Mrs Kabwe, and in May it instructed its bank to remit $6,000 to a bank account in Boston (Mass.) for Mr Kabwe's daughter Mwenya Kabwe.
  70. Those are the payments made, up to the date of the first receipt from the Zamtrop account itself, out of the US dollar ledger account, 2535/1, which Mr Meer had opened to receive the first payment. The few sterling payments which we have mentioned are irrelevant to the case, since they were debited against the credit balance on Mr Kabwe's private sterling ledger 2535/2. We mention them because they were dealt with in exactly the same way as the other instructions.
  71. The first payment from the Zamtrop account

  72. On 21 May 1996, $309,988.66 was paid to MCD's client account by Zanaco out of the Zamtrop account. It was the first of about 50 such payments received between then and April 2001, amounting in all to over $9 million. Before that receipt the credit balance on the ledger was about $24,900. The Government's case, which is well made out on Mr Sullivan's submissions and was accepted by the judge, is that Mr Meer acted on Mr Kabwe's instructions in relation to all requests for payments out of the sums so paid in exactly the same manner as he had in relation to the instructions that we have already mentioned, namely he followed them without question, having no regard to whether any particular payment could be justified as being for ZSIS' purposes.
  73. We need not go into any great detail as to the payments out after this date, but we will describe the first few payments after the first Zamtrop receipt, and we will also deal with some payments in respect of Harptree Holdings Ltd, with some other payments to which particular attention was given in the course of the evidence, and with some of the last payments debited to the relevant ledgers.
  74. On 26 May 1996, Mr Kabwe wrote to Mr Meer asking him to make a payment "from funds recently credited to the client's account with you", which was to be of $60,000, to a bank account in Switzerland, for the benefit of Mr Ib Thoger Daell, the remitter being identified as "Zamdaell Zambia Ltd (as arranged by Murray Dewar)". On the same day he instructed the firm to pay "on my behalf" $40,161 to Citibank in New York for the benefit of First Alliance Bank (Z) Ltd, the sender being AFSL. Though not stated in terms in the instruction, this appears to be treated as a payment for the benefit of AFSL itself in Zambia. On 30 May the next instruction was to pay "on my behalf" $50,000 to Mr H Patel at a bank account in London, the remitter being identified as Africa Direct Bureau de Change. On the next day there was an instruction to pay "on my behalf" $50,000 to a bank in New York, for the benefit of a bank in Zambia, and for the ultimate benefit of Africa Direct Bureau de Change, which was also identified as the remitter. On the same day the instruction was to pay "on my behalf" $12,000 to Mrs Kabwe in New York. A few days later $50,000 was to go "on my behalf" to AFSL, via the same account in New York as before, the remitter being identified as Africa Direct Bureau de Change. All these instructions were carried out.
  75. The ledgers

  76. Up to that time there were only two relevant ledgers: 2535/2 which was the old sterling ledger for Mr Kabwe's private matters, and 2535/1 opened in November 1995 for dollar transactions for Mr Kabwe or AFSL of a commercial nature. These two were the only ledgers used until 1997. Thereafter, other ledgers were opened. The full list is as follows:
  77. Ledger number Date opened Name on account / currency
    2535/2 January 1992 FM Kabwe sterling
    2535/1 November 1995 FM Kabwe Commercial $
    2535/3 November 1999 [not identified in evidence]
    3344/1 April 1997 Harptree sterling
    3388/1 June 1997 Harptree Holdings dollar
    3388/2 April 1998 Harptree Socomer project
    3475/1 July 1997 Horizon
    3519/1 November 1997 Motor City
    3556/1 December 1998 AFSL general dollar
    3556/2 August 1999 AFSL general 2 dollar
    3673/1 November 1998 AFSL general sterling
    3760/1 May 1999 Lottery Management Co
    3762/1 May 1999 Systems
    3800/1 July 1999 A B Hayward Ltd

  78. Zamtrop payments were credited to ledgers 2535/1, 3388/1, 3556/1 and in one instance 3556/2. (Part of one payment was also credited to a separate ledger, 3346/1 in the name Crownstone, which seems to have been a distinct client of MCD, introduced through AFSL.) Other large payments were also credited to each of these ledgers (apart from 3556/2). We set out in an Appendix to this judgment a table showing the amount and date of all the Zamtrop payments, and all other US dollar payments of $75,000 or more, received into the relevant ledgers in the MCD client account, rounding amounts up so as to disregard bank charge deductions.
  79. Payments in respect of Harptree Holdings Ltd and Jarban SA

  80. Harptree Holdings Ltd was a BVI company which Mr Meer caused to be set up on Mr Kabwe's instructions at the beginning of 1997. It had bearer shares which at one stage Mr Meer said he believed were held by Mr Kabwe, though he also said that he understood the ultimate beneficial ownership to be held by ZSIS. Harptree was used to acquire the shares in a Luxembourg company, Jarban SA, which, through two subsidiaries, Belsquare Residence nv and Immo Leasing St Michel nv, owned two properties in Brussels. Mr Meer acted professionally both in setting up Harptree and on the acquisition of Jarban. The funds used came from Zamtrop. A good many of the payments from Zamtrop which were credited to ledger 3388/1 in late 1997 and 1998 were associated with this acquisition. Later on, as it turned out, Mr Kabwe sold the shares in Harptree, and the purchaser, Mr Cracco (who became the 19th Defendant), claimed to hold the shares free from any right asserted by Zambia. That was the subject of the separate trial conducted by the judge in 2005.
  81. On 21 April 1999 Mr Kabwe wrote to Mr Meer as follows:
  82. "The client has request for some money from Jarban which I asked Mr Standaert to arrange. The amount sought ($100,000) was about BF 4 million but Jarban at this point can only afford BF 2 million (approx $54,000). The recommended way of getting this money to the client (if not the only way) is for you to write to the bank in Luxemburg (I think you may be the only signatory) to ask them to remit BF 2 million (or USD equivalent) to your account here. After the funds are with you, we can then transfer to Zambia through Access. Sorry for the bother with this one."
  83. On 4 May Mr Meer wrote to Belsquare authorising it to transfer BF 2 million to Jarban's bank account, and to Jarban's bank to instruct it to remit $50,000 out of Jarban's bank account to MCD. This money was eventually received into the client account on 25 May and credited to the Harptree ledger, 3388/1.
  84. Some other disbursements up to 2002

  85. We will mention a few other transactions to which particular attention was given in argument or at the trial. On 21 November 1997 Mr Kabwe sent a fax to Mr Meer asking him to do three things. First, he was to pay $64,450 "on my behalf" to Daewoo International Trading in South Africa; secondly, he was to transfer $80,000 from the Horizon account to the general account; thirdly, he was to confirm receipt of $130,000 sent from AFSL. Mr Meer replied immediately, confirming the receipt of the $130,000 and asking for instructions as to which account to credit. He asked for the name of the remitter of the money to go to Daewoo, and which account was to be debited, and he said that the Horizon account did not have $80,000 standing to its credit, and sent details. Mr Kabwe's answer on 24 November was that he was the remitter of the money to Daewoo, though he did not say which account was to be debited. He gave instructions as to the apportionment of the $130,000 credit, and he said that he would review the entries on the general and Horizon ledgers to see if corrections could be made. The remittance to Daewoo was duly made, and debited to 2535/1, rather than to any personal account of Mr Kabwe.
  86. On 7 May 1998 Mr Aaron Chungu sent an internal memorandum, within AFSL, to Mr Kabwe, saying "we need to be reimbursed the sum of US$242,484 for various client affairs handled through Meer Care & Desai. Please arrange for this to be paid. Details of this reimbursement are attached." On the next day Mr Kabwe sent this (but without any attachments) on by fax to Mr Meer, with a handwritten message: "Please remit the above amount of $242,484 to the account of [AFSL] at the United Bank as per the transfer details already with you". On 12 May Mr Meer and Mr Desai instructed their bank to make this remittance. It was debited to ledger 3556/1. Mr Meer accepted in evidence that, despite the reference, there were no relevant client affairs which were being or had been handled by the firm.
  87. On 7 January 1999 Mr Thomas Koshy wrote to Mr Meer, following a telephone conversation, asking that £5,000 be paid, on behalf of AFSL, to Mrs P Koshy at a bank in Richmond, urgently "as the funds are required today". On 5 January Mr Kabwe had written to Mr Meer to authorise this payment and to tell Mr Meer to "let him understand this is Access Financial Services trying to help him out". The firm's bank was duly instructed to make the payment on 7 January. On 8 January Mr Kabwe wrote to Mr Meer to say that AFSL had approved a further advance of £15,000 to Mr Koshy, and on 12 January he gave instructions to Mr Meer for the payment. At Mr Koshy's request this was put into effect on 13 January by instructions for two transfers, one to Hi-Pro Ltd, at a bank in Richmond, of £9,200, and the other of £5,800 to M K V Shah t/a G Goode, at an account in Wimbledon. On 25 January Mr Kabwe instructed Mr Meer to pay Mr Koshy £5,000 "against the general A/c to complete our transaction with him". Mr Koshy asked for the payment to be made to Hi-Pro Ltd. Mr Meer and Mr Desai duly instructed their bank to make this payment on 26 January, but for some reason it seems not to have gone from the account until 18 February. On 12 February 1999 Mr Kabwe wrote to Mr Meer, on AFSL's paper, as follows:
  88. "It has been decided to support Mr Koshy with a further advance of GBP10,000.00 which he desperately needs today. Kindly effect this payment on our behalf."
  89. The instructions to the firm's bank were given on 15 February, signed by Mr Desai alone, requiring payment of the relevant sum to a bank account in Cambridge, of which details had not been given in Mr Kabwe's fax – presumably the firm already knew them. Of these various payments to or for the benefit of Mr Koshy, the first, to Mrs Koshy, was debited to ledger 2535/1, the original FK Commercial ledger, and all the others came from ledger 3673/1, namely AFSL's general sterling ledger.
  90. Soon afterwards, on 3 March, Mr Kabwe instructed the firm to make several payments, of which one was of $21,000 to C H Kaunda, at a bank in London, which he explained as being on behalf of AFSL "in connection with our acquisition of Mr Kaunda's interest in Mambilima House", which was the address of AFSL's offices in Lusaka.
  91. On 21 April 1999 Mr Kabwe sent a handwritten instruction by fax to Mr Meer telling him that "allocation of $250,000 received should be as follows", specifying $70,000 for Crownstone, of which $20,000 was said to be "for bus sale" and the rest "for house sale"; $80,000 for AFSL, of which $50,000 "for advance recovery", $20,000 "for Koshy recovery" and $10,000 "for Chibanda recovery", with the balance of $100,000 for "general" - "allocation to follow".
  92. Later in 1999, on 21 June, Mr Kabwe instructed Mr Meer to pay $100,000 to Boutique Basile, to a bank account in Geneva, which was done on 29 June. On 15 February 2000 he instructed the making of a further payment of $80,000 to the same account, to carry the message "payment from Zambia", which was implemented by instructions on 17 February. Both sums were debited to the Harptree ledger, 3388/1. These are among the payments, said by Mr Basile to be for suits and other clothes made for Dr Chiluba and Mr X F Chungu, which featured in the claim against Mr Basile, the subject of the separate appeal already mentioned.
  93. On 3 August 1999, Mr Kabwe instructed Mr Meer to make a payment "on my behalf" to a bank in Boston Massachusetts, expressly "for student Alice T Kabwe … fall semester fees", with the bank transfer advice to be notified to Mrs Kabwe and to Boston University. This was duly instructed to the bank on 4 August, and debited to ledger 3556/2, newly opened at this time, with a transfer from 3556/1.
  94. In December 1999 and January 2000 a series of payments came into the client account from two Swiss banks and one bank based in Luxemburg (Corner Banque), all of which were credited to the Harptree ledger, 3388/1, as follows:
  95. Date Bank Amount ($)
    20/12/99 Banco di Lugano 59,100
    20/12/99 Julius Baer 89,000
    22/12/99 Corner Banque 300,000
    24/12/99 Julius Baer 50,000
    28/12/99 Banco di Lugano 59,100
    5/1/00 Banco di Lugano 900
    5/1/00 Julius Baer 40,000
    5/1/00 Banco di Lugano 50,000

    In each case the details of the credit were that the payments was "from one of our customers" or words to similar effect, with no indication of identity, nor did Mr Meer make any enquiry as to the identity of the payer. They are not said to have been of Government money.

  96. On 22 November 2000 Mr Kabwe instructed Mr Meer to pay $50,000 out of Harptree's funds to Gstaad International School. The instruction to Mr Meer does not give the further detail which appears in the firm's instruction to its bank, on the following day, that the advice note is to read "F Chiluba". Mr Meer accepted that he knew F Chiluba to be the President of Zambia.
  97. The BK payments

  98. The four payments relevant to the BK conspiracy came into the MCD client account between December 2000 and March 2001. They were $500,000 on 22 December 2000, credited to 3388/1, $200,000 on 26 January 2001, to 3556/1, $500,000 on 23 March 2001, to 3388/1, and $100,000 on the same date, to 3556/1. The firm's records do not include any document relating to the first payment received. As regards the second, Mr Kabwe sent a fax, on the paper of AFSL, to Mr Meer dated 26 January 2001, in the course of which he referred to their holding $200,000 "from our clients interested in acquiring Nkamba Bay Lodge, which transaction we have negotiated on their behalf", and asking for the money to be transferred to AFSL's account in Zambia "in the usual manner", which Mr Meer then caused to be done on 31 January. There is no other documentation relating to the four BK credits.
  99. Payments and other events after 2001

  100. We can now move on to the last stages of the story of payments in and out. In 2001 Dr Chiluba's second term of office as President was coming to an end, and the constitution of Zambia prevented him from standing for a third term. During that year there were already allegations that Dr Chiluba's government was corrupt. An election was held on 27 December 2001, which was won by Dr Chiluba's successor as leader of the Movement for Multi-Party Democracy, Mr Levy Mwanawasa SC, who became President on 2 January 2002. As the judge explained at paragraph 222, the new President was not willing to be told what to do by Dr Chiluba. In June and July 2002 the Zambian Post ran a series of articles headed The Matrix of Plunder, to which the judge referred at paragraphs 226 and 227, giving a lot of detail of how Government money had been diverted, including using MCD and Cave Malik. On 15 July 2002, the Government established a Task Force on Corruption, which was responsible for investigating the facts and bringing appropriate proceedings. Even before that date, the Zambian Government had asked for the help of the Serious Fraud Office in an investigation about the US company Systems. In May 2002 the SFO wrote to MCD about this investigation, seeking certain information, which Mr Meer provided. Soon after that, the Office of Supervision of Solicitors began to enquire into MCD's conduct.
  101. Mr Sullivan placed some emphasis on a number of payments out of MCD's client account made during 2002. On 26 June 2002 some $12,500 was paid to Mrs Kabwe from the balance on the 3556/1 ledger. The first of the Matrix of Plunder articles had been published the previous day, naming MCD as part of the matrix. Mr Meer accepted in evidence that he knew of the article and read it on the Internet. It is not established that he had seen it before he gave instructions for this payment, those being dated 25 June. Mr Meer said that he ceased acting for AFSL at the end of June 2002 as a result of the allegations made in the articles.
  102. However, on 1 November 2002 he arranged for $7,500 to be paid to Robert Simeza, Mr Kabwe's lawyer, from the balance on the 2535/1 ledger, as instructed by Mr Kabwe. On 12 November $75,000 from the balance on the 3388/1 ledger was paid to Cave Malik, on Mr Kabwe's instructions, "on behalf of your client Harptree … in connection of expenses incurred on behalf of this client".
  103. During 2003 the investigation by the OSS continued. An interview took place with Mr Meer and Mr Desai, of which a transcript is among the papers, to which we will need to refer.
  104. At the beginning of 2004 a dispute arose in Zambia into which MCD were drawn indirectly. During 2003 the Bank of Zambia had taken steps in relation to AFSL and of its subsidiary Access Leasing Ltd, which included placing both companies into compulsory liquidation, and appointing a Mr Mwansompelo as liquidation manager. In January 2004 both he and English solicitors on his behalf (Messrs Class Law) wrote to MCD requesting the immediate delivery to Class Law of all papers files records documents and ledgers which the firm held or had in its possession or control belonging to ASFL or its subsidiary. It seems that AFSL was in dispute with the Bank of Zambia as to the action that it had taken, and Mr Meer was aware of that. Upon receiving this demand from Class Law, Mr Meer wrote to Mr Robert Simeza in Lusaka asking about the current position in the litigation in Zambia. Mr Simeza replied, asserting that Mr Mwansompelo had no authority to describe himself as liquidation manager of the two companies. Class Law on the other hand maintained that their client was fully entitled to demand and receive the documents. On 23 January Mr Meer wrote to them, enclosing the letter from Mr Simeza, and asking whether they could provide any authority from the Zambian court, or a court order. Class Law took up that suggestion, and applied without notice to the Queen's Bench Division, obtaining an order from Mr Justice Pitchford requiring the firm to preserve all relevant documents, not to remove them or cause them to be removed from the jurisdiction, and to file an affidavit within 7 days "disclosing the whereabouts of the documents … within their custody power or control which are the property of or relate to the affairs of" AFSL and its subsidiary.
  105. Mr Meer made an affidavit on 5 February 2004 in order to comply with this order. He did not, as arguably he might have done consistently with the order, limit himself to stating the location of the relevant papers. He said that the firm held no papers relating to Access Leasing Ltd, which had never been a client, but that it held three files relating to AFSL "together with our financial ledgers relating to this client", and that the files and client account records were in the firm's offices. Later in February, on the request of Class Law, MCD delivered to Class Law the three files, identified as IM-3556, IM-3801 and IM-4061, together with copies of the ledgers relating to the three files. He did not identify or disclose ledger 2535/1 or any related file.
  106. The OSS investigation

  107. The Office for the Supervision of Solicitors undertook an inspection of the books of account and other documents of MCD on 10 July 2002. Officers of the OSS obtained papers from the firm, met Mr Meer in August 2002, and conducted a more formal interview with Mr Meer, Mrs Meer and Mr Desai on 2 April 2003, which was transcribed. A forensic investigation report was issued dated 17 October 2003. This was sent to each of the partners on 20 January 2004, with a request for comments not only on the report but on a number of specific points. The firm instructed a solicitor Mr David T Morgan to represent them. He replied on behalf of the firm by letter of 19 February 2004, and in a number of later letters.
  108. An important part of the context of the OSS inspection, which also featured at the trial, was the so-called Blue Card warnings issued by the Law Society to solicitors, to alert them to situations in which they might be at risk of assisting in money-laundering. The first of these warnings was issued in 1994. Mr Meer said to the OSS and in evidence that he had read it. In cross-examination he agreed that as an experienced practitioner he was very familiar with the concept of money-laundering and what it involved. Whether that statement was correct is open to question, as we will discuss later. The original Blue Card included the following, under the heading "Could you spot a money-laundering transaction?", as four out of five signs to watch for:
  109. "(1) UNUSUAL SETTLEMENT REQUESTS - Settlement by cash of any large transaction involving the purchase of property or other investment should give rise to caution. Payment by way of third party cheque or money transfer where there is a variation between the account holder, the signatory and a prospective investor should give rise to the need for additional enquiries.
    (2) UNUSUAL INSTRUCTIONS - Care should always be taken when dealing with a client who has no discernible reason for using the firm's service e.g., clients with distant addresses who could find the same service nearer their home-base; or clients whose requirements do not fit into the normal pattern of the firm's business and could be more easily serviced elsewhere.
    (3) LARGE SUMS OF CASH - Always be cautious when requested to hold large sums of cash in your client account, either pending further instructions from the client or for no other purpose than for onward transmission to a third party.
    (4) THE SECRETIVE CLIENT - A personal client who is reluctant to provide details of his identity. Be particularly cautious about the client that you do not meet in person."
  110. This warning was followed by others, some in relatively simple terms and others much more elaborate, over the years. The judge referred in his judgment to guidance circulated by the Law Society in 2000. This is a 74 page document, the second edition of the Law Society's "Money-Laundering Legislation: Guidance for Solicitors". In his witness statement, Mr Meer said that, if it was sent out to all solicitors, it is likely that he read it, but he was not sure that he would have thought it added anything substantial to the Blue Card warning which he had already seen. He therefore did not actually remember having read it. In cross-examination Mr Sullivan read parts of this document to him as part of his preparation for questions about money-laundering. His questions were not directed to whether Mr Meer had in fact read, and if so how he had understood, this guidance in 2000. The judge referred in his judgment to passages in Annex G (headed "Guidance for the money-laundering reporting officer – reporting responsibilities and suspicious transactions") and Annex H ("Protection for your firm and the reputation of your partners and the profession"). It is entirely fair to say that Mr Meer should have read this and taken note of it. If he did not, however, the question would be why not, and turning a blind eye to it is not necessarily the only possible explanation.
  111. Annex G includes the statement, under the heading "Typical areas of cause for concern", as part of paragraph (iii):
  112. "Solicitors should also be alert to any proposals which are an attempt to use the solicitor's firm for nothing more than banking services."

    Annex H includes the following paragraph (iii) as one of several illustrations of cases where cause for concern is likely to arise:

    "a well-established wealthy client proposes that your firm be involved in a new venture whereby sums will be held on account for the client. Upon probing and considering the details, the underlying cause for concern is that there do not seem to be any legal services being performed or required as would be expected in the normal course of a solicitor's practice."
  113. AFSL was not at the outset a "well-established wealthy client", though by 2000 it was well-established as a client, and well-funded. Leaving that factual detail aside, the aptness of this warning to what Mr Meer was doing is plain and obvious. The cross-examination of Mr Meer on this subject included questions from the judge about whether he read this guidance, from which we quote the concluding passage at paragraph [133] below. Mr Meer was forced to accept that he had not complied with the guidance, and that he had either not received it, or not read it, or not acted on it.
  114. In the light of the second and third points made in the original Blue Card warning, it is not surprising that the OSS was interested in MCD because of the pattern of receipts and payments without related legal work which we have described above.
  115. All parties to these appeals attached importance to what was said by or on behalf of the firm in the course of the OSS inspection. The judge quoted some passages from the interview, particularly in that part of his judgment which dealt with the claim against Mr Desai. We should record that, on the one hand, the point was made on behalf of the partners that in the course of the interview many questions were asked for which a proper answer required reference to documents which were not then at hand, and, on the other hand, that Mr Sullivan drew attention to the fact that the partners were sent the transcript of the interview and had the opportunity, then or in response to the report, to propose any correction, explanation or amplification which they considered necessary.
  116. The questioning at the interview was mainly about the receipt of funds from the Zamtrop account and its disposal, both as regards some of the detail and as regards the broader issues to which this gave rise. Clearly, some information had been obtained, for example from the previous informal meeting with Mr Meer. The officers, Mr Uddin and Mr Fletcher, asked questions about the pattern of the receipt and payment of the funds, starting with the assumption that much of the money started in Zambia, was paid out to the firm's client account, and was then paid back to accounts in Zambia. Mr Meer corrected this, saying that money came from the account called Zamtrop at Zanaco in London, being identified as money from Zamtrop for the credit of AFSL. He also said that the firm's instructions came from AFSL and were that the money was for ZSIS. He was asked why the funds were paid to the firm. He said he had no idea, but he explained the longstanding relationship with Mr Kabwe and, he said, with AFSL. Asked again why it was necessary that the money should go to the firm's client account, he said:
  117. "I had always assumed that because it was [ZSIS] they did not want the money to go to them directly. [AFSL] acted for [ZSIS] in Zambia and I think the intelligence services – this is what I was told – that the intelligence services did everything via their office in Lusaka. Now whether it was … for secrecy reasons or what, I really do not know. I am assuming that it was."
  118. They were asked whether there was any underlying legal work involved in relation to the transmission of these funds, to which the answer was, not with ZSIS, though Mr Desai said "there would have been work for Access" and Mr Meer followed that by saying "We would have done a lot of work for Access." After some further discussion they reached the position that, at least as regards a large volume of the payments, there was no related legal work.
  119. The officers then asked why either AFSL or Mr Kabwe did not open a bank account and use that for making these payments. Mr Meer explained that there might be difficulties for a Zambian resident in getting the necessary permission from the Zambian Reserve Bank to open a foreign bank account and, whether or not he might have been able to get permission, "he probably thought it was not politic to do so and therefore came to" MCD.
  120. A point on which Mr Onslow laid emphasis arose later in the interview, when the officers, asking about what was done with the money once received, in particular à propos of cash payments to Mr Kabwe, said in passing "these are government moneys". Mr Meer interrupted and said:
  121. "Hold on. When you say these are government moneys, I cannot agree with you because I don't know if these are government moneys. These are Access moneys. Moneys came in to us for the credit of Access. It doesn't come to us to say here is money that is government money and so therefore Access will tell you what to do with it. It doesn't happen like that. Whatever money comes to us came for the credit of Access, so when you are trying to tell me that these are moneys that came from government, for government, I really don't know. As far as I am concerned, my client was not government, my client was not the State Intelligence Service, my client was Access and I was acting for Access. Now moneys came in for the credit of Access and we disbursed those funds on the instructions of our client, so I think you are wrong when you say thee moneys that came in was from government for government."
  122. Mr Fletcher suggested that by using the firm's client account, AFSL was able to avoid Zambian exchange control regulations. Mr Desai denied that and said it was an operation set up because AFSL needed to service its clients abroad. Mr Meer added that AFSL was not sending funds out from Zambia, but receiving them from elsewhere. Moving on from that topic, the partners were asked whether this type of work was of a kind that a firm of solicitors ought to be doing. The partners explained it as being more like the old idea of a solicitor as being a client's man of affairs, who will do legal work but may also, for example, pay a client's hotel bill or order and pay for Christmas hampers from Harrods out of money held to the order of the client. The point was made that, in this case, unlike others where some legal work is done, there was no underlying transaction at the start: payments simply came in and went out, to which Mr Meer said that this was "just one little part of the work that Access gives us".
  123. The partners were then asked about the Blue Card warnings. We will quote one passage which summarises the position, particularly as regards the second point on the Blue Card.
  124. "Mr Fletcher: I am just dealing with that unusual instructions – this is the part that deals with clients who have got no discernible reason for using the firm's services, distant addresses and things like that. If I was going to summarise what you have said to us this morning so far, the reason that they have used you effectively – the client being Access – is that they have got a longstanding relationship with you, you have known the person for a long time and that there were problems with the exchange controls in Zambia.
    Mr Meer: And a hedge against inflation
    Mr Fletcher: And a hedge against inflation and [some] belief that the secret service of Zambia are involved somewhere along the line
    Mr Meer: Certainly for the Zamtrop
    Mr Fletcher: And that is why they can't be seen to be sending money back to themselves essentially. It has got to go through a third party. So you have had no suspicions about that at any other point at all?
    Mr Meer: No suspicions whatsoever and none even after I met the director of the Intelligence Services."
  125. As already mentioned, the report was sent to the partners for comment. Some reference was made in the course of submissions to the terms of the response on behalf of the firm. It is unnecessary to deal with any detail of that. The firm repeated in writing its rebuttal of the suggestion that it was providing a banking service to AFSL, and its denial that there was anything improper in providing what they described as a secondary service to overseas clients, or that it was within the terms of the Blue Card warnings, or that it was a way of bypassing Zambian exchange control regulations.
  126. The position taken in the Defence

  127. Mr Sullivan made submissions by reference to the line taken in the Defence served on behalf of Mr Meer. The original Defence, served on 27 September 2005, was on behalf of the firm as First Defendant. Later, pursuant to leave of the judge, separate Defences were served on behalf of each of Mr Meer and Mr Desai. For present purposes what matters is Mr Meer's Defence (amended from the original joint Defence), served in June 2006.
  128. The allegations by Zambia against MCD concerning the Zamtrop conspiracy, as pleaded in the Particulars of Claim, are set out in paragraphs 73 to 164, and supported by Annexes 12 to 23. They include a substantial section, at paragraphs 110 to 110z, introduced by amendment and dealing with Harptree Holdings and the Jarban acquisition. We do not need to go into the allegations in any detail, other than as to the case for showing that Mr Meer was guilty of dishonest assistance, and we will ignore in any event those allegations which the judge did not find proved. The starting point is that it was alleged that Mr Meer knew that the relevant money paid into the client account from the Zamtrop account was Government money. It was also alleged that Mr Meer had no authority from the Government to act on behalf of the Government, or to apply the Government money in the client account in payment to or for the benefit of private individuals. Reliance was placed on all or many of the characteristic signs in a version of the Blue Card warning being present in relation to the dealings with Government money.
  129. Mr Meer was alleged to have known of the fact that the money was Government money, but was being misapplied, or alternatively to have "wilfully and recklessly failed to make such enquiries as an honest and reasonable firm of solicitors would make in circumstances in which they knew" that the money was Government money, and that it was being applied for private purposes without authorisation from the Government, and in particular that there was no apparent legitimate commercial or other purpose for the payment of Government money to or for the benefit of Mr Kabwe, and to or for AFSL. Similar allegations were made as regards the Harptree Holdings aspect and the purchase of Jarban, with the further allegation that the shares and property acquired as a result of that exercise were held on trust for Zambia. The point was made several times that all or most of the payments were made without there being any related matter in which MCD was retained to provide legal services, and that the several ledgers were used "in a manner equivalent to a current account". In relation to payments out of the AFSL ledgers, it was said that various circumstances which were known to Mr Meer made the transactions very suspicious, but that Mr Meer failed to make any enquiries such as an honest and reasonable solicitor would have made in such circumstances.
  130. In Mr Meer's Defence, he pleaded the Churchill Hotel meeting and the agreement reached at it. He then admitted that sums were received in the firm's client account for the credit of AFSL, and said that AFSL was the sole relevant client, acting through Mr Kabwe, that all payments out were made on the instructions of Mr Kabwe, and that the firm never acted on behalf of ZSIS. Mr Meer asserted that he and the firm acted entirely honestly in the conduct of transactions on behalf of AFSL. He made a number of points in support of this. The Zamtrop account was held at Zanaco, a Government owned bank. The receipt of payments from this source was consistent with what Mr Meer had been told at the Churchill Hotel. He had no knowledge of the source of the funds in the Zamtrop account, and had no knowledge or suspicion that they were paid into that account, or out of it to the firm's client account, in breach of trust or fiduciary duty. He had no reason to doubt the honesty of Mr X F Chungu or of Mr Kabwe, or to doubt what he was told at the Churchill Hotel. He assumed that in the context of the operations carried out by or for an organisation such as ZSIS confidentiality was necessary, and it was therefore not surprising that a full explanation of all underlying transactions between ZSIS and AFSL was not provided. He referred to his absence of financial reward, other than three payments of reasonable fees for work done.
  131. Coming to deal in detail with the allegations in the Particulars of Claim, Mr Meer said that he had been told by Mr X F Chungu and Mr Kabwe at the Churchill Hotel that ZSIS would make payments to AFSL from time to time in respect of services performed by AFSL, and that accordingly Mr Meer believed that payments from the Zamtrop account were funds remitted by an organ of the Zambian Government, but said (in paragraph 41.2) that it did not necessarily follow that such funds remained Government funds in the hands of AFSL. He denied that any reasonable solicitor would have been suspicious of the transactions, and also denied in any event that he was suspicious of the relevant transactions. He contended that, whether or not the ultimate recipients of payments were entitled to receive them, he believed that they were so entitled, and that all such payments were for legitimate purposes. More generally, he believed that AFSL had received money from ZSIS for legitimate purposes and that it was for AFSL to decide, and to instruct Mr Meer, in relation to the manner in which such money should be disbursed. He denied that the ledgers were used in the manner of a current account.
  132. Zambia supplemented its Particulars of Claim with Further Information, pursuant to a request by MCD, in November 2005. It served a lengthy Reply to Mr Meer's Defence on 21 July 2006, taking issue with Mr Meer on a large number of the individual transactions. We do not need to refer to this, except for paragraph 19, which responds to paragraph 41.2 of the Defence. The case there pleaded by Zambia was that, if Mr Meer's belief were correct, that AFSL was acting on behalf of the Government in providing services to ZSIS, and that money was being paid to the firm's client account for that purpose, then the money received from Zamtrop into the client account would be held on trust for the Government. The same point had been made in response 36/37(b) in the Further Information, with the further point that, on this basis, money held on trust for the Government was mixed in the client ledgers with money not so held.
  133. Mr Meer's evidence

  134. Mr Meer made a witness statement on 8 September 2006, and gave evidence at the trial over all or parts of six days. In the first 18 paragraphs of his witness statement, which were not challenged, he described something of his career and background. Then he dealt with his knowledge of and contacts with Mr Kabwe over the years, the firm's work for him in the early 1990's and then the Churchill Hotel meeting. So far as the rest of the witness statement is concerned, it was the subject of lengthy cross-examination, and it would not be useful to consider it separately from the cross-examination. In the course of argument on the appeal we were taken to quite a number of passages in the cross-examination, and have read others besides. The judge observed at paragraphs 554 and 632 of the judgment that the closing submissions on behalf of Mr Meer accepted that he was an unsatisfactory witness. In those submissions, reference was made to his failure to ask any questions of Mr Kabwe as to the source of monies received or the purposes for which such monies were to be put, and to his having had little or no proper understanding of the precise status of the money in his client account, or the identity of the parties to whom that money belonged, to his having followed his client's instructions without independent judgment or thought, to his natural but often unhelpful attempts at reconstruction, and to him being sometimes suggestible and eager to please. Those are entirely fair comments. On several occasions he answered a question in a way which appeared to accept that he had been dishonest. As he mentioned at paragraph 553 of the judgment, the judge caused these questions to be put again so as to be sure whether or not the answer had been based on a misunderstanding of the question.
  135. Mr Sullivan cross-examined Mr Meer at length, starting with his awareness of money-laundering and the Blue Card points, then proceeding to Mr Kabwe and the Churchill Hotel meeting, and then getting into the detail of the payments into and out of the client account and the various ledgers.
  136. As regards the third of the Blue Card points, with its reference to holding large sums of cash in a solicitor's client account, Mr Meer said he understood the reference to "cash" to be to physical notes, not just credit balances. Mr Sullivan followed this up with one further question as to why it made a difference whether money was in cash form or not, but he did not challenge Mr Meer's evidence that he thought it meant physical cash.
  137. He was asked various questions about the Churchill Hotel discussions. He had said in his witness statement that he had "agreed to help AFSL (and in turn Zambia) in dealing with the remittances of these monies for its credit". He reiterated in cross-examination that he would be helping Zambia because he would be assisting AFSL in the service it was providing to ZSIS. He had also said in his witness statement (paragraph 87) that he would have been horrified to learn that he was in any way involved in a scheme that would inflict harm on Zambia. He was not cross-examined on this evidence. In his cross-examination arising from paragraph 34 he referred to his motivation to assist Zambia, as (he understood) was being asked of him by Mr X F Chungu. He said:
  138. "Zambia had been very good to me, and Zambia gave me my start in life, and I was prepared to help Zambia as much as I could."
  139. After some further questions, the judge put this to Mr Meer:
  140. "Judge: As I understand it, at the meeting you were told that AFSL would be acting for ZSIS, and you were not told what they would be doing for ZSIS, and there appears to be no definition of what services you are to provide. You are simply going to do what they ask you to do, and you do that without enquiry because you trust the people who are sitting across the table from you. That is the position isn't it?
    Mr Meer: That is the position."
  141. He accepted that the instructions were unusual and that it was unusual not to record them in writing. The judge was clearly puzzled by Mr Meer's evidence about the service he was providing, and the reason why his firm's client account was used for the purpose of receiving and disbursing moneys. Mr Sullivan put it to Mr Meer that the client account was being used in order to conceal the source of the funds, to which Mr Meer said:
  142. "The money always came from Meer Care & Desai and we remitted those funds from the credit of AFSL. I am not following your question. If you are saying that there was money being rerouted back to Zambia in order to break the chain, I don't think that can be correct. I was receiving monies from the Zamtrop account in London. I did not know the source of their funds. My client was Access and I was sending money on to them. They were based in Zambia and it was only natural and not unusual for me to send money to them."
  143. The judge then took up the question of his understanding of the ownership of the funds. Mr Meer said:
  144. "Mr Meer: The money belonged to Access. The monies that I had received was money for their credit in respect of services that they had performed, I believe, or I assumed, for ZSIS.
    Judge: So it was money for past services that they had received?
    Mr Meer: It is difficult for me to say whether they were for past services or not, but it was for the work that they had done for ZSIS."
  145. Mr Meer got into further difficulty later on in trying to explain why ZSIS should be paying these large sums to AFSL. In response to another question from Mr Sullivan, he said that he did not know whether the money paid to AFSL was a financial reward to them or money which they had to utilise for their client. Pressed further on this, he said he believed the money was not only for services rendered but for the work that they were carrying out on behalf of ZSIS, and that they could have used the money on behalf of ZSIS in matters that required discretion.
  146. Mr Sullivan then reverted to the question of the services:
  147. "Mr Sullivan: Well, it comes back to his Lordship's question, which I think you haven't answered. What service was it that you were providing to Access?
    Mr Meer: My Lord, the majority of my practice is an African-orientated practice. I do a lot of things on behalf of a lot of clients from that part of the world, which strictly does not fall within the work of a solicitor, and I think, in my witness statement, I have given you various examples, my Lord, of the type of things I have been called upon to do so on the behalf of clients. These are all established clients of mine. They are not clients that I acted for for the very, very first time. There are many occasions when I am asked to do things on behalf of clients – clients of long standing – I have acceded to those requests.
    Judge: Well, I don't think that is an answer to Mr Sullivan's question either. All I can see at the moment is that the service, so-called, involves your client account being made available for monies to be put in, the source of which you don't question, and then to be paid out to people, the purpose for which you don't question either?
    Mr Meer: Yes, that money came from a reputable source, my Lord, and I did not question where the money came from. I received it on behalf of my client and I disbursed it in accordance with the instructions that I got.
    Judge: So the service then is simply to receive money without asking where it comes from, and disburse it, as told, without enquiring what is the purpose of the disbursement, isn't it?
    Mr Meer: My Lord, I did know where the money was coming from. It was coming from the Zamtrop account in most of the cases. It was coming from Zanaco in London, and it was coming for the credit of my client.
    Judge: Well, I have a bit of a problem with who is your actual client at the moment, given your answer at 136 where you say it was money for the Zambian State Intelligence Services. It can't be both AFSL and ZSIS money, can it?
    Mr Meer: No, my client always was AFSL. I received no instructions for ZSIS. I had no contact with ZSIS except Mr Chungu at that meeting in London.
    Judge: But that makes your answer to Mr Uddin not correct, doesn't it, at page 136, line 14? That answer gives the impression that AFSL was simply being used as a conduit to hide the fact that it was really ZSIS money?
    Mr Meer: No, Sir. ZSIS was never my client, Sir. If that is the impression that has been created, then that is wrong.
    Judge: You see, it is being put to you there – and you answer affirmatively – that the purpose of the exercise is simply to disguise that the ZSIS money is ZSIS money, isn't it? It is to hide the fact that ZSIS is involved. That is what you are saying to him, isn't it?
    Mr Meer: I was assuming, my Lord. My Client always was – and I will stand by this – were AFSL. My instructions always came from AFSL. The money that I received was for their credit and belonged to them, my Lord."
  148. Next, Mr Meer got into difficulty when cross-examined about things he said during the OSS interview, in particular about the money having come in "for" ZSIS, to which he replied that this was a mistake and he should have said that it came "from" ZSIS. He asserted more than once, in this sequence of questioning, that he treated the money as belonging to AFSL in his account, and not as belonging to the Government or to ZSIS, and that it was up to AFSL to decide how they should be disbursed. A passage in one of the letters from Mr David Morgan to the OSS was put to him, in which reference was made to "the funds to be utilized by ZSIS". He accepted that this was inconsistent with his evidence, and he said the letter was incorrect.
  149. He was pressed on his understanding and belief about the money. For example, in relation to money which went from his client account to AFSL in Lusaka, he was asked why it could not have been sent straight from the Zamtrop account to AFSL, to which he said he assumed there was a need for discretion, but from whom he did not know. The judge then put a proposition to him:
  150. "Judge: Is that the truth of the matter, then, that you simply did not ask? You did not check? You simply allowed your client account to be used as they thought was appropriate, without making any enquiries?
    Mr Meer: I did not make any enquiries.
    Judge: So they came to you at the meeting and they said, "We want to run money through your client account. It is all very secret. "And you said, "Fine!"
    Mr Meer: No, they did not say that, my Lord.
    Judge: They gave you the impression it was secret. They didn't then say it was secret. You formed the view that because it was secret, you simply accepted it was secret, legitimate. You didn't know where the money came from. As regards an ultimate source, you didn't know where it went, and you didn't make any enquiries at all, or check anything? That's right, isn't it?
    Mr Meer That is correct, my Lord. The money I knew came from the Zamtrop account.
    Judge: Yes, but you did not know how it got into the Zamtrop account?
    Mr Meer: No, I did not, my Lord.
    Judge: And you did not know where it was going? You simply didn't ask.
    Mr Meer I did not ask."
  151. Later he denied that he was concerned to satisfy himself that he was not getting involved in money-laundering, saying that he was providing a service to a long-standing client (meaning Mr Kabwe) with the best of intentions, and that if it had been money-laundering, he would not have been asked to send money to Zambia which had a soft currency.
  152. The judge again sought to encapsulate Mr Meer's evidence in this exchange (of which we omit immaterial parts):
  153. "Mr Meer: I did not look at it that way, my Lord.
    Judge: Isn't the reality, Mr Meer, you did not look at it any way? You just had Mr Kabwe who you knew and Mr Chungu who you knew was the ZSIS man and that was enough for you? You did nothing else. What they said went. Isn't that the position?
    As I understand your answers, you really have no idea about the transactions, have you? You have no real idea who the money belongs to. They simply used your account as they wanted?
    Mr Meer: With the valuable benefit of hindsight, I see, yes, that I was being used.
    Judge: I understand why you might say that, and am very careful not to apply hindsight or rules which have been firmed up, and that is a question which I have to decide. But the reality is, Mr Meer, that you simply took their word for it, that what they were doing was legitimate and you had no idea what they were doing? Isn't that right?
    Mr Meer: That is correct, my Lord."
  154. Then Mr Sullivan turned to asking Mr Meer about the receipts and payments, and first about the very first receipt, $250,000 paid in on 30 November 1995, with which Mr Meer had dealt in his witness statement. It was put to him, based on paragraphs 41 and 42 of his witness statement, that he understood this $250,000 to be the first payment made pursuant to the arrangement discussed at the Churchill Hotel, and that this was why he opened a new ledger for it. He did not accept that, though it can fairly be said that his denials, on the two occasions when the point was put to him, were not particularly strong on this point:
  155. "Mr Sullivan: You understood that the $250,000 that you received, as we have looked at, was the first payment which had been made pursuant to the arrangement which you had made at the Churchill Hotel with Mr Xavier Chungu and Faustin Kabwe?
    Mr Meer: Not at that time, my Lord. I cannot recall if that is what I perceived."
    "Mr Sullivan: You had agreed only a short while earlier with Mr Xavier Chungu and Mr Faustin Kabwe to receive monies from Zanaco. So did it not occur to you that these were monies – given that you received no other monies from Zanaco, that these were monies received pursuant to that agreement?
    Mr Meer: Not really. I was told by Mr Kabwe to expect these funds. They could have come from anywhere. But he identified the bank in his letter to me. Whether it was in pursuance of his arrangement with Mr Chungu, I really don't know."
  156. He had said in paragraph 42 of his witness statement that he used the title of the ledger (FM Kabwe Commercial) "to differentiate between this work and the private matters on which I had acted for Mr Kabwe previously". Based on this, it was put to him that "this work" meant the work that he was to undertake as a result of the Churchill Hotel meeting. He would not accept that. He said it referred generally to work for AFSL, as distinct from private work for Mr Kabwe, and that this would include, but not be limited to, work done under the arrangement made at the Churchill Hotel. The account would receive whatever money was coming in for the credit of AFSL. His evidence seems to involve an acceptance that the reason he knew the money to be that which Mr Kabwe had led him to expect in his 24 November letter was because it came from Zanaco, but, as noted above, he did not accept that he understood it to be part of what was paid under the Churchill Hotel arrangement. The judge asked him whether he checked on that with Mr Kabwe, to which he said he did not; asked why not, he said he did not think it was necessary to ask him. He was then asked a series of questions about the payments out of the client account made following this receipt, including cash to Mr Kabwe, which he said represented his travelling expenses.
  157. Mr Meer was consistent throughout his cross-examination that he did not ask Mr Kabwe any question about the nature, purpose or justification for any payment.
  158. He was asked about the second receipt, from Paine Webber, and in particular why it was credited to ledger 2535/1, if it was not Government money. His answer was that this was the ledger to which he credited all AFSL money up to that point. In the course of questions about the payments out after that receipt, the judge again reverted to his summary of Mr Meer's position:
  159. "Judge: It's like all your other assumptions. If they tell you to do it, you don't ask why. To talk colloquially, you just ask "How high?" don't you? That is what I understand your evidence to be. You did not question any one of these transactions at all?
    Mr Meer: My Lord, I had implicit trust in Mr Kabwe. I had known him for such a long time. I didn't think it was necessary for me to ask. I trusted him."
  160. The same topic arose during the next day, in the course of further questions about disbursements:
  161. "Judge: But these were monies which you had received further to the Churchill Hotel Agreement. You must have questioned, given that you knew the source of monies to be the Government monies, ZSIS monies, "What on earth am I doing remitting $50,000 to a Midland Bank account in Covent Garden, London, England?" Did you ask yourself that question?
    Mr Meer: No, I did not.
    Judge: Did you ask what possible Government purpose might be served by this remittance?
    Mr Meer: I did not, my Lord.
    Mr Sullivan: Let us look at the fourth----?
    Judge: Sorry, why did you not ask that question?
    Mr Meer: I did not think it was necessary my Lord. I thought I was being asked to remit funds to one of AFSL's clients. It must have been a commercial transaction, my Lord.
    Judge: We explored this yesterday. Yesterday, you said the purpose of the arrangement was so that ZSIS could do things secretly and keep it in confidence. I understand that to mean that you believed that what you were being asked to do was to facilitate ZSIS operations. Is that right?
    Mr Meer: That is correct.
    Judge: These are manifestly not ZSIS operations, are they?
    Mr Meer: I have no idea. I, I agree with you. It does not look like it, my Lord.
    Judge: At some point in time, it must have surely occurred to you – from example, when you were asked to pay university fees and the like – what on earth has this got to do with ZSIS operations? It must have occurred to you?
    Mr Meer: Honestly, it did not