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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Mengiste & Anor v Endowment Fund for the Rehabilitation of Tigray & Ors  EWHC 599 (Ch) (22 March 2013)
Cite as:  EWHC 599 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
| Mulugeta Guadie Mengiste
ADDIS Trading Share Company
|- and -
|Endowment Fund For The Rehabilitation of Tigray
ADDIS Pharmaceutical Factory Plc
Mesfin Industrial Engineering Plc
Mr Spink QC and Mr Assersohn (instructed by MS Legal) for the Defendants
Hearing dates: 8, 10 February, 30 April 8, 9, 10 May, 13 & 14, 22 August, 30, 31 October and 6 November 2012
Crown Copyright ©
Peter Smith J:
1 The Defendants' application dated 12th October 2010 challenging the continuation of these proceedings within this jurisdiction on the ground that England is not a forum conveniens.
2 The Claimants' application for permission to serve the Second and Third Defendants out of the jurisdiction dated 14th February 2011.
3 The Defendants' application dated 18th January 2012 for an order requiring the Claimants to disclose details as to the identity of the Claimants' expert (called throughout the proceedings by the name of Mr Jones ("Mr Jones").
"In the result, it seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre eminently a matter for the trial Judge. Commercial Court Judges are very experienced in these matters. In nearly every case evidence is on affidavit by witnesses of acknowledged probity. I hope that in future the Judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Cheveley in this case in the quiet of his room without expense to parties; and that submissions will be measured in hours and not days. An appeal should be rare and the Appellate Court should be slow to interfere. I agree with my noble and learned friend Lord Goff of Cheveley that there were no grounds for interference in the present case and that the appeal should be allowed."
"Experience has shown that Lord Templeman was being over optimistic when he said, in Spiliada (at 465), that in disputes about the appropriate forum the Court would not be referred to other decisions on other facts and that submissions would be measured in hours not days. But this case has been excessively complicated by any standards. The hearings before the Deemster and the Staff of Government Division each lasted for 4 days or more. The hearing before the Board lasted 4 days. The written cases of the parties exceeded 200 pages and more than 30 volumes of documents were placed before the Board containing almost 14,000 pages, as well as 170 authorities in 12 volumes. The core bundle alone consists of 6 volumes. The list of "essential" pre reading for the Board listed documents totalling some 700 pages. All of this was wholly disproportionate to the issues of law and facts raised by the parties".
"81 When a court is called upon to decide whether an action should proceed in this, as opposed to another, jurisdiction, it is being asked to decide a procedural issue at a very early stage. Where, as is now the position in this case, it is common ground that the parties would have a fair trial in the competing jurisdiction, the exercise will normally involve the court weighing up a number of different factors, and deciding where the balance lies. Whilst the same considerations will not always apply to applications for permission to serve out and applications for stays of proceedings, the argument on this appeal has highlighted three general points in relation to each type of exercise.
82. The first point is that hearings concerning the issue of appropriate forum should not involve masses of documents, long witness statements, detailed analysis of the issues, and long argument. It is self-defeating if, in order to determine whether an action should proceed to trial in this jurisdiction, the parties prepare for and conduct a hearing which approaches the putative trial itself, in terms of effort, time and cost. There is also a real danger that, if the hearing is an expensive and time-consuming exercise, it will be used by a richer party to wear down a poorer party, or by a party with a weak case to prevent, or at least to discourage, a party with a strong case from enforcing its rights.
83. Quite apart from this, it is simply disproportionate for parties to incur costs, often running to hundreds of thousands of pounds each, and to spend many days in court, on such a hearing. The essentially relevant factors should, in the main at any rate, be capable of being identified relatively simply and, in many respects, uncontroversially. There is little point in going into much detail: when determining such applications, the court can only form preliminary views on most of the relevant legal issues and cannot be anything like certain about which issues and what evidence will eventuate if the matter proceeds to trial.
84. This concern is not new. In Cherney v Deripaska  EWCA Civ 849, paras 6 and 7, Waller LJ said that whilst he "appreciate[d] that litigants do often feel strongly about the place where cases should be tried … disputes as to forum should not become state trials". He also lamented the "mountain of material" the Court faced in that case, and suggested that it "would have been better for both parties and better use of court time if they had expended their money and their energy on fighting the merits of the claim."
85. In Friis v Colburn  EWHC 903 (Ch), paras 3 and 5, having set aside an order for service out of the jurisdiction, Peter Smith J referred to the fact that the claimants' costs schedule was £215,280.50, following a hearing which, he said, had been "strung out by unrealistic stances and unnecessarily prolonged and complicated submissions which seem[ed] to achieve nothing other than create fogs of irrelevancy".
86. In that connection, the present case is striking, as Arnold J explained in para 3 of his judgment. The hearing before him lasted six days, after two days' pre-reading. He was faced with more than 27 bundles of documents, written evidence, and exhibits, and 14 bundles of authorities. One of the witnesses had made twelve witness statements, and further materials were added on a daily basis. (The hearing was not limited to the application to set aside permission to serve out: it included an application to amend, and applications to continue and to discharge a freezing order; however, no more than half the material and time can have been devoted to those aspects.)
87. Since the hearing of this appeal, the Court of Appeal has given judgment in Alliance Bank JSC v Aquanta Corporation  EWCA Civ 1588, a case involving similar issues to those in this appeal. At para 4 of Tomlinson LJ's judgment in that case, he referred to the fact that the first instance hearing of the application to set aside permission to serve out, on the grounds that England was an inappropriate forum (as well as raising some other points), lasted eleven days, and the hearing in the Court of Appeal appears to have lasted four days.
88. In Spiliada  AC 460, 465, Lord Templeman expressed the hope that in a dispute over jurisdiction, "the judge will be allowed to study the evidence and refresh his memory of [the principles] in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days." That was a rather optimistic aspiration, not least when one bears in mind the understandable desire of lawyers to do, and to be seen by their clients to be doing, everything they can to advance their clients' case, especially where the dispute over jurisdiction may well be determinative of the outcome.
89. However, particularly with the benefit of procedural reforms, which have been introduced, or are in the process of being introduced, following reports from Lord Woolf and Lord Justice Jackson, the judiciary is now encouraged to exercise far greater case management powers than 25 years ago. Accordingly, judges should invoke those powers to ensure that the evidence and argument on service out and stay applications are kept within proportionate bounds and do not get out of hand. The second point is, in a sense, a sub-set of the first point, and concerns the extent to which a defendant who is challenging the jurisdiction of the English court should identify the nature of his case. In my view, the position is reasonably clear. As a matter of principle, a defendant is entitled to keep his powder dry: he can simply put the claimant to proof of its case. In general at least, that is true at any point of the proceedings. The mere fact that the defendant is challenging jurisdiction does not somehow impose a duty on him to specify his case. The onus is on the claimant to satisfy the court that there is a serious issue to be tried on the merits of the claim, and not on the defendant to satisfy the court that he has a real prospect of successfully defending it.
90. However, if the defendant chooses to say nothing, then it would be quite appropriate for the court to proceed on the basis that there is no more (and no less) to the proceedings than will be involved in the claimant making, or trying to make, out its case. Of course, in many instances, the defendant will be able to say that, although he has not submitted a draft statement of case, or produced a witness statement, setting out the details of his case, its nature is clear from correspondence, common sense, or even submissions. Consistent with my observations on the first point, I would not want to encourage a defendant to go into great detail as to his case in a long document with many exhibits, but if he is wholly reticent about his case, he can have no complaint if the court does not take into account what points he may make, or evidence he may call, at any trial. I agree with Lord Clarke that a defendant could exhibit draft points of defence, but in many cases, it may be disproportionate to expect him to incur the costs of doing so before it has been decided whether the claim is to proceed at all.
91. The third point was expressed by Lord Bingham in Lubbe v Cape plc  1 WLR 1545, 1556. He said, in the context of an application for a stay of proceedings on grounds of forum non conveniens, that
"[t]his is a field in which differing conclusions can be reached by different tribunals without either being susceptible to legal challenge. The jurisdiction to stay is liable to be perverted if parties litigate the issue at different levels of the judicial hierarchy in the hope of persuading a higher court to strike a different balance in the factors pointing for and against a foreign forum."
Precisely the same applies in many cases involving permission to serve out.
92. As Mr Mark Hapgood QC, who appeared for Mr Malofeev, said, appellate courts should be vigilant in discouraging appellants from arguing the merits of an evaluative interlocutory decision reached by a judge, who had to balance the various factors relevant to the appropriate forum, when the complaint is, in reality, that the balance should have been struck differently.
93. Lord Templeman in Spiliada, at 465 said that the determination of the appropriate forum is "pre-eminently a matter for the trial judge", because "Commercial Court judges are very experienced in these matters", and "[a]n appeal should be rare and the appellate court should be slow to interfere". This case was in the Chancery Division, whose judges entertain such issues less commonly than their Commercial Court colleagues, but their experience and expertise are such that the same conclusion applies. As Tomlinson LJ said at para 117 of his judgment in Alliance Bank, an appellate court "should hesitate long before interfering with the judge's assessment" on such an issue."
HOW DID THIS HAPPEN
"Commercial Court Judges are very experienced in these matters. In nearly (emphasis added) every case evidence on affidavit by witnesses of acknowledged probity"
1 He had very little appropriate qualification to give expert evidence on these matters.
2 He did not understand his duties as an expert to the Court.
3 These duties and his potential exposure if his evidence was given recklessly or negligently was not explained to him by the Claimants' lawyers when he signed his experts report (contrary to the Expert Witness Protocol). This latter point I found particularly concerning. In effect Mr Jones was thrown to the wolves without any proper protection or advice as to the nature of his role and his duties and his potential liabilities.
"Mr Teferie, if he gets his visa, he is going to come and give evidence before me to the effect that the Inventory report was not conclusive. Do you accept that?
A: was not conclusive meaning
Q: meaning that you should not take at face value what was said in it necessarily?
A: The Inventory report in and of itself but without the context does not give much information.
Q: Absolutely. That is what he is going to say. I do not know whether you accept that or not? If you accept it fine. If you do not accept it, your witness is not going to be here to contradict what he says, is he?
A: It is the first inspection report……
Q: You know I am not asking you about that. I am asking you about the phrase "the Inventory report was not conclusive."
A: Was not conclusive.
Q: That is what he was saying
A: Further inspections are necessary. That much I accepted. I was never asked to confirm that the First and Second Defendants purchased and delivered items. What we asked of them was not to verify who paid for it. What we asked of them was to the existence of the machines.
Q: So there is going to be no challenge to what he says he knows is there? Because if there is, I will not have your witness giving evidence to contradict him, will I?
A: As long as it is limited to the existence of the machinery, the existence of the goods for me the interpretation, for me I will have no problem."
"My Lord, before I call Mr Kantu, could I just mention in relation to Mr Teferie we have indicated that, obviously on the basis that we have not put in evidence to directly contradict the most important part of his evidence, but whilst we do not admit it, we do not see the point in coming all the way to England just to be asked a few questions about what his role was and what he was told by Mr Rashid and what Mr Rashid's role was in it"
"if you accept his evidence, fine. If you do not accept his evidence and there is a conflict between what you understand to be the position then your witness ought to be here. If there is no reason why he is not here, absent any other explanation for his absence I will conclude as I have decided a whole string of cases starting with Lennox Lewis v Eliades that he will not come because he will not support your case……I do not know the extent to which you are going to challenge Mr Teferie at the moment but there are some obvious things, which I took to Mr Mulu on a brief excursion of it. But if you are going to put things that he is wrong and that other things are put if you have not got a witness then you will have to explain it to me what weight I give to your challenges in the light I have referred you to".
"My Lord there is no point getting into a debate now. I merely mention it in case it was thought we had required Mr Teferie to come all this way without any intention to cross examine at length. We do not".
"I think Mr Mulu described the Inventory as "the most important document." I am not sure it is quite as important as you would hope, but when there is going to be issue over how this Inventory ended up in the form it did I have got to decide what the Inventory was for, and what it achieved, and what the parties believed it was achieving…….I might only have to decide at this stage there is cogent evidence that this Inventory shows the Defendants might have perjured themselves. I think that is the threshold. You do not get anywhere, in my book, if you do not produce your witness to deal with conflicts over the Inventory without cause."
"Mr Hollington: This application [is] in order to enable us to put in further evidence. My Lord, it arises out of the questions that my client gave late yesterday afternoon in response to questions from My Lord when he essentially confirmed much of what he stated in paragraph 21 of Mr Teferie's witness statement. Our recollection is that he said the Inventory was not conclusive – which is what Mr Teferie said.
Mr Justice Peter Smith: I do not recall him saying that. But if he said it, he said it, you put it to him and I thought he accepted it. But one might have to look at the transcript. That was certainly my impression.
Mr Hollington: That is our impression of the answer he gave. My Lord, I could put him into the witness box in order to reconsider the matter, but that does not it seems to me, to get over the problem that arises out of that answer because we have communicated that evidence to Mr Jones, and I am instructed that his expert reports should be read on the basis that he was assuming that the [Inventory] was a binding agreement between the parties so if that is not the case, then the conclusion he draws out on that basis are not valid…...
My Lord what we need to do is get Mr Jones to produce a report not based on what the Inventory alone, on its face, proves but on the material that underlies it. He has, in his reports, proceeded on the basis that on its face that is a binding agreement which the parties cannot get out of under Ethiopian law. That proves, in his opinion that the judgment in Ethiopia was obtained by fraud. If it transpired that contrary to his understanding, the Inventory itself does not amount to a binding agreement between the parties, then he has to abandon his reliance on what the Inventory on its face says and go to the underlying documents".
SUMMARY AS REGARDS NATURE OF HEARING
EXPERT EVIDENCE:- A CRITIQUE
"Whatever the result My Lord and I would like to express how grateful I am for the extent of the inconvenience you went through, in order to protect my identity. That is a genuine feeling that I would like to express My Lord. "
"MR JUSTICE PETER SMITH: Your cross-examination, read on to page 57, I think. The theme coming through all that cross-examination, after Mr Hollington's intervention to
assist me, shows that you accepted that the 30-day limit
was an absolute one and that the Supreme Court would not
entertain an application made outside the 30 day period.
A. I accept that, yes.
MR JUSTICE PETER SMITH: Today, you are saying to Mr Spink, as a result of a different decision, that it is possible that the 30-day limit might not be applied absolutely. Now, that is what you are saying now.
A. I am saying now, yes.
MR JUSTICE PETER SMITH: Mr Spink has two points about that. The first one is that you said the opposite when you were examined before, which is correct. You have looked at the transcript.
A. I have.
MR JUSTICE PETER SMITH: The second is that you are saying this for the first time now. It wasn't in your fourth report. It wasn't in your corrections. The first time Mr Spink heard it was when you volunteered it during this series of questions. Now, that appears to be the position.
MR JUSTICE PETER SMITH: Now, as a result of that, I am not sure what you are telling me about the Supreme Court's ability to entertain a review outside the 30 day period.
MR ASHWORTH: My Lord, before the witness answers the question that your Lordship has posed; you referred to the Supreme Court and there are, of course, two Supreme Courts; he referred to the Tigray Supreme Court and the Federal Supreme Court.
MR JUSTICE PETER SMITH: Yes, quite right. The relevant Court to which the application for a review should be made.
A. You are right, my Lord. That will be the Tigray Supreme Court which was the first instance court in this case. And I stand by what I was saying earlier: that that Supreme Court will reject the application, saying the 30-day limit is absolute.
MR JUSTICE PETER SMITH: That is not what you have said earlier today.
A. No. You see, and then I said --
MR JUSTICE PETER SMITH: The other Supreme Court might --
MR SPINK: The Federal Supreme Court.
A. If they appeal from that, on the grounds of a procedural
MR JUSTICE PETER SMITH: Injustice, you said.
A. being allowed to keep injustice going, if that is proven of course, right, just like what happened in the other case. I am saying here there is a possibility, and I think this might. Federal Supreme Court – not even the Supreme Court. The Cassation bench which has the only power to make a new law, and I am here speculating to -- I am being very upfront here. There is that possibility on the basis of what they did in the Tirhas case, but --
MR JUSTICE PETER SMITH: You say you are being upfront but as I understand it, this is the first time you have expressed this opinion. You had an opportunity when you were examined earlier to say, if you go back to the transcript, pages 56 and 57, and you could have said then: but of course, that is the Tigray Supreme Court.
MR JUSTICE PETER SMITH: There is this decision in the Federal Supreme Court which admits of a discretion, possibly. If you had said that, Mr Spink might have taken you up on that and Mr Hollington might have said: there is more evidence. But you didn't. You said: no way would this application be entertained outside the month period.
A. I accept that, yes.
MR JUSTICE PETER SMITH: So this is a significant change then; isn't it?
A. I am sure they -- they went further into this, especially in reading the Cassation Court judgments. I am sure my judgment has evolved on this. But even now, I am not saying any concrete -- I am not saying in any way that the law is different. I was just talking about a possible change to the law itself, really. That is what I am saying. Otherwise the law, as it stands today, in the Cassation Court, is very careful in -- you know, going beyond what a clear statement of the law says. It is possible I might still be wrong.
MR JUSTICE PETER SMITH: You see, I did dangle this under your nose when -- if you look at page 56, you volunteered there, at line 24, that the court judicial process would be undermined if the strict rules were not followed. Do you see that?
MR JUSTICE PETER SMITH: Page 56, line 24.
A. Yes, that's what I said.
MR JUSTICE PETER SMITH: So your evidence there was that you could not imagine a judicial system allowing its processes to be undermined by allowing a review outside the one-month period. And I commented --
MR JUSTICE PETER SMITH: -- because it would undermine the process and I commented: not necessarily. The reason I said that, of course, is that in this country, time limits generally are not absolute.
A. I understand.
MR JUSTICE PETER SMITH: The law does have discretion. That would have been a time for you to say: ah, but there is this Cassation decision which might be a question of -- might bring into it a possibility of entertaining the application outside the limitation period.
A. May I please clarify that, my Lord? Here, what I was talking about is, as you remember, in the -- in the report, I said: at that time, they had already given up hope in the independence of the -- in the fairness of the courts.
MR JUSTICE PETER SMITH: I see the point entirely Mr Jones. I can well understand the claim that the claimants have not embarked on the review because they had no confidence. If that is their correct view, it wouldn't have mattered whether they had to apply within 30 days 10 or ten years.
MR JUSTICE PETER SMITH: Whatever it was, whatever the time limits, they were not going to do it. That is a different point. That is a matter for evidence. That is a matter for me to hear why they did not make a new application.
A. I understand, yes.
MR JUSTICE PETER SMITH: Your report here is dealing with the law and the possibility of them applying outside the 30-day period. Do you understand?
A. I understand, yes.
MR JUSTICE PETER SMITH: This is the argument being run by you to explain in law, they could have made this application -- that is what you are telling me now – to the Cassation Court outside the one-month period
2 MR JUSTICE PETER SMITH: Is that what you are telling me now?
A. The -- the right that they have, if they discover new evidence, for example, now, either to go to the Tigray Supreme Court within 30 days; if it is after 30 days, they still have to go back to the first instance court, the Supreme Court here. But the likelihood, as I said, is the court is not going to accept that. So they might be able to go to the Federal Cassation Court, which could, if it follows the Tirhas line, could take a more liberal view on this.
MR JUSTICE PETER SMITH: Mr Spink, does your expert accept that or not?
MR SPINK: Well, he has never heard it before. It has never been said. I am going to cross-examine anyway on the merits for a couple of minutes, when your Lordship has finished on the: is it a new point or not, point.
MR JUSTICE PETER SMITH: It plainly is a new point.
MR SPINK: It is a new point.
MR ASHWORTH: My Lord, might I just note there, on page 57 and page 58, the point was made by Mr Hollington that -- we wandered from the past examination into the merits; and he said he was going to have to deal with it further in the legal examination; and in the re-examination. So it came at a slightly strange place.
MR JUSTICE PETER SMITH: But the debate I had flagged up didn't take place, I don't think, about this.
MR SPINK: No, your Lordship said -- I am sorry. If you read on, your Lordship said: well, he is not going to change his answer on this. You made it very clear that he would not be revisiting this point. In any event, if he wanted to revisit this point and change the evidence that he had given in his report and in the personal examination, the remedy would have been to serve some evidence, along with all that other evidence that was served on 31 May, raising this point. This is completely new.
MR ASHWORTH: My Lord, simply to flag up, this is a matter for submissions. I don't want to interrupt the cross-examination of the witness, but I was not there on the last occasion. I can only go to the transcript. It is clear at page 58, my Lord, line 7, Mr Hollington made some observations and he said at line 20:
"... in which case ... we may have to come back to ... re-examination ..."
Mr Spink said:
"Yes, I understand ..."
MR SPINK: But you haven't come back to it in examination.
MR JUSTICE PETER SMITH: This was the first hearing. The bits you just mentioned, I think, were at the second hearing when the adjournment application was made.
MR ASHWORTH: My Lord, that is on the transcript, the first hearing.
MR JUSTICE PETER SMITH: Where is it?
MR ASHWORTH: Page 58, my Lord.
MR JUSTICE PETER SMITH: I know that, but there was no coming back on the point that I said. Mr Hollington's re-examination did not extend to this, I don't think.
MR SPINK: No, it didn't.
MR JUSTICE PETER SMITH: I am not shutting anybody out, but Mr Spink is entitled to test this new opinion. It is plainly a new opinion.
MR ASHWORTH: My Lord, I don't for one moment say he is not, but I just want the witness to understand -- or it to be put fairly to the witness how things were left on that last occasion. Maybe I misunderstood, my Lord, but that is how --
MR JUSTICE PETER SMITH: I understand that. What should have happened is that if he was going to introduce a change to his answers, and it is a radical change, isn't it, really. Because he was quite firm. I think the most telling one is still that at page 56, I think. Page 56/24:
"I am answering here: no, it is not a ground in law because in my mind, I cannot imagine a law ... a legal system that would say if you lose confidence in a system, then the time limit will be extended or anything like that." So --
MR ASHWORTH: It is qualified, if you lose confidence in the legal system. That's -- my Lord, we will have to debate this later in submissions. I am sorry for interrupting.
MR JUSTICE PETER SMITH: Well, no, I think we do debate these things now because any questions that arise in the legal submissions which are not going to be until October, I don't want to have to meet an application by either party for Mr Jones to be recalled to clarify his evidence.
A. I am sorry, my Lord. But here really, what I was -- what I was talking about is: does the loss of confidence suffice under Ethiopian law, as grounds to extend the 30-day period? That is all I was talking about here.
MR SPINK: Yes. You said: no, it doesn't.
A. It doesn't. I understand --
MR SPINK: Unequivocally. And you gave a reason – excuse me -- on 56 why the courts would not allow that.
A. I agree with that, I said --
Q. Because it would undermine the system of justice?
A. It would.
Q. Now you are saying that if you took it to the Federal Supreme Court, the Federal Supreme Court would undermine the system by allowing an extension of time?
A. Not on -- not on grounds of loss of confidence. On --
Q. Well, on what grounds, then?
A. Whatever grounds they may have. I don't know --
Q. But there isn't a ground. The only ground you have put forward --
R JUSTICE PETER SMITH: Can you not talk over each other? It is difficult for the transcribers.
A. I am sorry.
MR JUSTICE PETER SMITH: It is both of you.
MR SPINK: The only ground you put forward on 110 is loss of confidence.
A. That's -- but I also said in that place that loss of confidence is not enough.
A. Under Ethiopian law.
Q. Well, there we are. There isn't any other ground to put forward?
A. And -- no, nor am I proposing anything new now. What I am saying is: that 30-day limit, seen independently of the issue of confidence, if they -- if the reason is lack of confidence, I can't see them going back to that court anyway. I am saying here: the 30-day limit, seen on its own, there are -- there might be room for it to be extended. That is all I am saying. I am not in any way suggesting that if the reason is the lack of confidence of the parties, that would apply. If they don't have the confidence, they won't go back to it anyway. That is how I put it.
Q. But you cannot suggest any other ground -- other than the one that you did put forward in 110, you cannot suggest any ground that is applicable to this case, that would cause the Supreme Court to change the law?
A. I don't have any other grounds, no.
Q. Right, okay.
A. Because this is -- that lack of confidence thing came from the clients -- the claimants themselves, and that is what I was talking about.
Q. I am going to finish on the merits of this point. You have, for the first time today, suggested that the decision in the Fissehaye case gives us a clue and might be a reason why the Supreme Court would extend the 30-day limit in this case. That is what you were saying just now. It is the Fissehaye case that you are relying on today as your hook, so to speak, as your indication that the Supreme Court.
A. I accept that.
Q. -- might -- yes?
Q. Fissehaye, you dealt with in your main report at paragraph 94 onwards, 94 to 96.
Q. So it was a case that you had already considered in your first report; yes?
Q. Fissehaye changed the law at the Supreme Court level. Previously it was thought that if you had already appealed a decision, even if you subsequently got new evidence that suggested the decision had been wrong, because you had already appealed, you couldn't go for a review on the basis of the new evidence. That was what was previously thought to be the law.
A. It was not just thought to be the law. The Cassation -- no, no, I am supporting what you are saying, Mr Spink.
MR JUSTICE PETER SMITH: If you are, it is easier if you say "I agree".
A. I agree.
MR SPINK: Fissehaye said: the procedural bar of having brought an appeal, the procedural bar, shouldn't stand in the way of having a look at that evidence and bringing -- enabling a review to be brought. That is what it said, didn't it?
A. I agree, I agree, I agree.
Q. This case -- Fissehaye said nothing about extending the time limit for the review.
A. I agree.
Q. Indeed, it must be the case that in Fissehaye, the review was sought within 30 days of the fresh evidence, which indicated there had been a fraud at the first trial, had been discovered?
A. It was a forgery case and you are right, I agree.
Q. Exactly. This case, there is no bar of the sort that was present in Fissehaye of an appeal having been made. In this case, we are simply talking about the fact that the claimants got their document, the inventory. They realised that it was a crucial piece of evidence and they didn't apply for a review within the 30 days.
A. I accept that.
Q. There's no procedural bar to the court doing justice in this case, as there was in Fissehaye, is there? There is no analogy, in other words, between this case and Fissehaye?
A. Except that in one case, there was the appeal. In this case, there is a time bar. That is the only -- if you call it analogy, that is the only relationship between them….. "
" MR JUSTICE PETER SMITH: But the Fissehaye case, as I understand it, establishes that merely because you have appealed a decision does not disentitle you to having a review. We have a similar procedure in the Court of Appeal here. You can appeal a decision and if the Court of Appeal dismisses your appeal, you can nevertheless invite the Court of Appeal to review their decision; a separate independent right. So Fissehaye is simply saying: the procedural bar of an earlier appeal is not correct.
MR JUSTICE PETER SMITH: But as I understand it, it didn't say anything about extending the 30-day limitation period.
A. It did not.
MR JUSTICE PETER SMITH: So furthermore, the claimants in this case obtained their evidence, as I understand it, within the 30-day period; but for reasons that they no doubt will explain and for me to find, chose not to apply for a review.
A. That's correct.
MR JUSTICE PETER SMITH: So on that basis, what are we arguing about here? It is simply for the claimants to explain why they did not avail themselves of an opportunity to seek a review of the decision.
A. I accept that.
MR SPINK: The position is that on the current law in Ethiopia, certainly, the fact that they may have, in their own minds, had reason for not bringing the application within 30 days doesn't help them. That is an absolute time limit, the 30-day time limit.
A. As the law stands today.
Q. As the law stands.
A. I agree entirely.
Q. It would require a change in the law, at Federal Supreme Court level?
A. Cassation level, yes.
Q. I suggest to you that there is not any indication in Fissehaye that any such change in law would take place.
A. I think I will only be repeating myself, so if you --
Q. If you disagree with that. If you --
A. If you take it that way ...
Q. You think Fissehaye indicates that the court would change the law in relation to the time limit?
A. No, it doesn't. I am saying here: if you look at appeal as opposed to a general bar, and a time -- a time limitation period as opposed to a general bar, there is that level of similarity. Beyond that, there is not -- there is not".
"As we have already seen, the controversial phrase of the provision is that shown under sub No. 1 that reads as "… before filing complaint against judgment or decision or order against which appeal can be filed…." If we take the phrase "before filing complaint and heard" and define it word by word, we may reach on conclusion as it says the request for judgment should e filed before the complaint filed appeal against he rendered decision. However, as the provision should be generally interpreted with the other phrases it contains and the conditions set under sub No1 A and B as well as verifying with the overall intention of the procedure code; it is thought that the conclusion we may reach on in such interpretation will be broader than that of the word by word interpretation of a single phrase.
The other point to be considered in interpreting the provision is the reason why it is specified to file request for judgment before filing appeal there is no benefit to make except wasting money, time and labour and complicating the case to file request for judgment to the court decided while the case is being under court process of appeal hearing, filing one case both to the lower and appeal hearing court thinking that the decision will be corrected (see again) by the appeal hearing court. It is also possible to consider that the appeal hearing court will make the appropriate correction examining it in respect of the C/P/C/No. 345 and 182.
On the other hand, though the court prefers to take the better and reasonable procedure in this level, it is not possible to say that the law doesn't consider that request may be arrive stating as the basic ground for the decision is any (or all) of the functions shown under 6/1/A/. As it is tried to state in detail above, the intention of the law is to reach on the truth. To reach on the truth, in terms of justice rendering, is the highest value able task. We understand from the general legal interpretation principle that it should be in the way it can make objective effect on the controversial issue, we have found it appropriate to have the belief that the provision of C/P/C/No.6 should be equally applicable whether appeal is heard or not as far as complaint is filed stating that the former decision is based on false evidence or crime related acts and the court finds it sufficient and convincing."
OUTLINE OF CLAIMANTS' CASE
1 A challenge to the fairness of the entirety of the judicial system in Ethiopia (they having already had proceedings in Ethiopia about these issues).
2 A challenge to what had been decided in Ethiopia (and as part of that challenge the Claimants sought to deal with the objection raised by the Defendants of res judicata).
3 An allegation that the political system in Ethiopia was such that there was a real prospect of the Claimants suffering harm if they submitted to the jurisdiction and brought these proceedings within the Ethiopian law courts.
NATURE OF CLAIM
SUMMARY OF FACTS
THE ETHIOPIAN JUDGMENTS
ENFORCEMENT BY DEFENDANTS
THE PRESENT CLAIM
BASIS FOR ACTION
WHAT NEEDS TO BE ESTABLISHED
"the Spiliada sent out strongly worded signals (a) to the lower court that it is inappropriate in jurisdictional spats of this kind to have long drawn out hearings at first instance….. "
"…..the need to examine most clearly the matters relied upon as demonstrating that a fair trial in what is otherwise the appropriate forum for the resolution of the dispute will not be possible….. "
"But this is no reason that allegations of the kind made by Ferrexpo need not be supported with evidence that enables the court to examine their basis, and which is sufficiently detailed and focused to justify them. In my judgment, some of Ferrexpo's evidence, including evidence upon which Professor Koziakov relied, is not of this quality. Some of it could properly be described as mere "press or political comment" unsubstantiated by independent evidence, such as Aikens J criticised in Dornoch Ltd and ors v Mauritius Union Assurance & anor,  EWHC 1887 (Comm)."
CONSIDERATION OF THE EVIDENCE
THE SECOND DEFENDANT'S APPEAL
IMPACT ON THE CLAIMANTS AND MR JONES CREDIBILITY
"Art. 5 Res judicata
(1) No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, and has been heard and finally decided.
(2) Any matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been directly and substantially in issue in such suit.
(3) Any relief claimed in the former suit which has not been expressly granted by the decree passed in such suit shall, for the purpose of this Article, be deemed to have been refused.
(4) Where persons litigate in good faith in respect of public or private rights claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this Article, be deemed to claim under the persons so litigating."
"Art. 6 Review of judgments
(1) Notwithstanding the provisions of Art 5., any party considering himself aggrieved by a decree or order from which an appeal lies, but from which no appeal has been preferred, or by a decree or order form which no appeal lies, may, on payment of the prescribed court fee, apply for a review of judgment to the court which gave it where:
a. subsequently to the judgment, he discovers new and important matter, such as forgery, perjury or bribery, which after the exercise of due diligence, was not within his knowledge at the time of the giving of the judgment; and
b. had such matter been known at the time of the giving of the judgment, it would have materially affected the substance of the decree or order the review of which is sought.
(2) An application for review shall contain the same particulars as a memorandum of appeal and shall be supported by an affidavit containing strict proof of the fulfilment of the conditions laid down in sub-art (1) (a). The application shall be filed within one month of the ground of application having been discovered by the applicant.
(3) On granting the application, after giving notice to the opposite party to enable him to appear and be heard in support of the decree or order the review of which is sought, the court shall make such order in regard tot eh re-hearing of the case as it thinks fit.
(4) No appeal shall lie from any decision of the court granting or rejecting an application for review."
REVIEW IN ETHIOPIA
1 The Claimants have failed to persuade me that there is any cogent evidence which shows the procedures in the Ethiopian Courts were wrong in respect of matters that were put before those Courts.
2 There is nothing in the Ethiopian Judgments which show in my view any bias or any cogent evidence which shows that the Claimants will not obtain a fair hearing. I have already commented that the Judgments to my mind read well, the legal principles are uncontroversial and the codification rules provide a balanced and fair system.
3 There may be issues over the Inventory and Judge Mehretab but subject to what I say below the Claimants ought to take those issues to the Ethiopian Courts. It may be possible for them to obtain a re-trial. Alternatively if the Ethiopian Courts behave in an inappropriate manner that would in my view justify coming back to Court here and seeking to lift the stay which I propose to impose.
4 The Claimants have an arguable case but there is no cogent evidence that they cannot present the arguable case in the Ethiopian Courts.
COGENT EVIDENCE FOR POTENTIAL DENIAL OF JUSTICE
EXTRANEOUS EVIDENCE ABOUT SITUATION IN ETHIOPIA
"43 I accept this last observation as far as it goes: the value of the opinion of an expert such as Professor Koziakov does not depend upon proof of "each individual piece of original information" and the court is concerned about whether his "conclusions about the whole picture are correct" (or here that there is a real risk that they are correct): see R v Ahmed,  EWCA Crim 184 para 62 per Hughes LJ. Moreover, even at common law the courts have always allowed expert witnesses to rely upon hearsay evidence in relation to their evidence of opinion (once the primary facts on which their opinion is based are proved by admissible evidence): R v Abadom, (1982) 60 CAR 48,52 per Kerr LJ, and English Exporters (London) Ltd v Eldonwall Ltd,  Ch 415,421E. There are obvious difficulties in presenting direct or primary evidence of matters such as concern Ferrexpo.
44 But this is no reason that allegations of the kind made by Ferrexpo need not be supported with evidence that enables the court to examine their basis, and which is sufficiently detailed and focused to justify them. In my judgment, some of Ferrexpo 's evidence, including evidence upon which Professor Koziakov relied, is not of this quality. Some of it could properly be described as mere "press or political comment" unsubstantiated by independent evidence, such as Aikens J criticised in Dornoch Ltd and ors v Mauritius Union Assurance & anor,  EWHC 1887 (Comm)"."
"148 In relation to the status and significance of the Inventory Report (as well as on many other issues), Mr. Jones has made a series of sweeping, unbalanced, exaggerated and/or otherwise inappropriate statements incompatible with him being a reliable, objective and independent expert: see, for example:"
a. The inventory "leaves absolutely no doubt that the whole case was a fabrication" (our emphasis, ¶105 [13/1/34])
b. "What the Claimants have in their hands is a voluntary admission of guilt" (i.e. that the Defendants committed perjury and that this conduct was relied upon by the court in reaching its judgment) (our emphasis, ¶108 13/1/108])
c. The inventory is a "confession" (¶129 [13/1/44])
d. The inventory provides "conclusive evidence" that the claim had had no factual foundation (our emphasis, ¶129 [13/1/44]).
e. In addition, Mr. Jones seeks to bolster the above conclusions by making sweeping and one-sided factual assumptions about the way in which the inventory came into existence that are not supported by any evidence."
"In some areas I have used language that might suggest that I have gone beyond my role as an independent expert. This is totally inadvertent, which I regret and would like to correct. To that end, I have identified a number of paragraphs in my first 2 reports where this inadvertence has been reflection….and, in each case, I have suggested appropriate qualifications to those paragraphs."
"it appears the Defendants' agents gave false statements "knowingly", on "facts material to the issue to be decided by the tribunal" and calculated to influence the outcome of proceedings. But if any court is prepared to consider the evidence objectively and impartially, the Inventory report and the schedule leaves absolutely no doubt that the whole case was a fabrication."
"what are my views currently? Effort has abused its power in Ethiopia and that is what I tried to explain, on the basis of the case, why this might look like, the way I expressed it, as a political heavyweight" (T/13/08/12/66-67).
OTHER EVIDENCE SHOWING UNFAIRNESS IN ETHIOPIA
"Ethiopia's judicial system has suffered from lack of autonomy in the past but its position is now improving. Judicial reforms, has indicated in several reports and published document, is top priority of the Government and as a result there has been a significant improvement in terms of access to justice, case flow management, judicial autonomy and accountability as well as on the right to speedy trial particularly on civil and commercial matters.
By and large the judiciary operates autonomously but in some criminal cases there still remains a lot of work to be done. The role of the police and prosecution is still complicated and in lower courts problems related to non compliance of court orders is at times observed.
Particularly since the adoption of the July 2010 judicial administration council proclamation, the appointment of the independent judiciary has shown and improvement. Candidates are now (2011-2012) required to sit for a competitive exam before recruitment for judicial positions. Merit and ethical considerations are given more weight in the recruitment process."
"Although it is acknowledged that those passages are to some extent moderated by the letter apparently from Dr Fiseha."
"The law provides for an independent judiciary. Although the civil courts operate with independence, the criminal courts remained weak, overburdened, and subject to political intervention and influence".
"Civil courts, which provided judicial remedy for alleged wrongs, were generally viewed as independent and impartial. The law provides citizens the right to appeal human rights violations in civil courts; however no such cases were filed during the year".
THE WAY FORWARD
PERMISSION TO SERVE OUT OF THE JURISDICTION