For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Wednesday, 22 August 2007

Who are the real vultures?

The IPKat has not got many cases to report at the moment, so the discovery here on BAILII of last Wednesday's Queen's Bench ruling of Mr Justice Stanley Burnton in Long Beach Ltd and Nguesso v Global Witness Ltd [2007] EWHC 1980 (QB) is a welcome relief.

Nguesso, son of the President of the Congo, was also President and Director General of the marketing arm of Cotrade, the Congolese state-owned oil company. He owned Long Beach, a company registered in Anguilla. This application was brought by Nguesso and Long Beach against Global Witness, a non-profit-making English company which campaigns against corruption and which was nominated for a Nobel Prize for its work back in 2003.

Kensington, a vulture fund that buys debts cheaply in the hope of getting something back, brought proceedings in Hong Kong in order to trace and seize assets belonging to the Congo. That court ordered a company in Hong Kong to disclose information and documents to Kensington. Those documents, which disclosed information about the activities of Nguesso and Long Beach, were referred to at a hearing of the Hong Kong court that was open to the public. Kensington then passed copies of the documents to Global Witness, which posted them on its website.

On the application of Nguesso and Long Beach, the Hong Kong court - sitting in private and without Global Witness being a party to the proceedings - ordered Global Witness not to publish the documents or even to disclose the facts of the making of the application.

Left: this happy young Congolese has a life expectancy of just 52 years.

Nguesso and Long Beach then sued Global Witness in England and Wales, relying on (i) their rights to confidentiality and privacy under English law, (ii) Nguesso's right of privacy under Article 8 of the European Convention on Human Rights, alleging misuse of the documents by both Global Witness and Kensington. According to the applicants (i) an English court was required, as a matter of comity between courts in friendly jurisdictions, not to question the correctness of the judgment of the Hong Kong court; (ii) the documents remained private and confidential, even though they were referred to in court open to the public in Hong Kong; (iii) Nguesso's rights under Article 8 were clearly engaged and the publication of the documents infringed those rights.

Stanley Burnton J refused the applications. In his analysis,

* comity only required the English court to treat the judgments and orders of the Hong Kong court with due respect. However, Global Witness was not a party to the Hong Kong proceedings and was not bound by them;

* in any event, since Global Witness did not carry on business in Hong Kong, it was not subject to that jurisdiction under English rules for the recognition of foreign judgments. The English courts would not therefore regard the company as being bound to comply with the judgments of that jurisdiction.

* the significant public interest in the subject matter of the disclosed documents was such that Global Witness's right of communication under Article 10 of the European Convention on Human Rights would be violated if an English court considered itself bound by the restrictions on reference to the procedures of the Hong Kong court;

* the specified documents were, when disclosed to Kensington, confidential by their very nature and content. That they were referred to in open court was clear, though the extent of that reference was not. This being so, court should proceed on the basis that there was sufficient reference to them as would have removed their confidential status if they had been disclosed on discovery and referred to in open court in England;

* neither Long Beach ot NGuesso had shown that they were likely to establish at trial that the documents were protected by confidentiality;

* While Nguesso's right of privacy under Article 8 was undoubtedly engaged, there was a clear and overwhelming case for refusing relief on the ground that there was an important public interest in the publication of the specified documents and the information derived from them;

* once there was good reason to doubt the propriety of the financial affairs of a public official, there was a public interest in those affairs being open to public scrutiny.
The IPKat wonders how many starving Congolese could have been fed, and how many poverty-stricken people clothed and housed, for the sum spent by the claimants in seeking to conceal from them documentary evidence tending to suggest how Nguesso was funding his luxury lifestyle. Merpel adds, it would be unfair to criticise the Hong Kong court without being in receipt of the full facts, but one gets the uneasy feeling that freedom of communication does not enjoy quite the same level of prestige as a legal right in the Chinese-owned former colony as it does in the European Union.

Poverty in Congo here

2 comments:

Anonymous said...

For the sake of accuracy - it is Burnton not Brunton...

David said...

Thanks for that. Now corrected.

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