ON APPEAL FROM BUSINESS AND PROPERTY COURTS
Mrs Justice Cockerill DBE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PETER JACKSON
LORD JUSTICE COULSON
| Bank Mellat
|- and -
|Her Majesty's Treasury
David Foxton QC, Philippa Hopkins QC and Helen Morton (instructed by Government Legal Department) for the Respondent
Hearing dates : 19 and 20 February 2019
Crown Copyright ©
LORD JUSTICE GROSS :
THE JUDGMENT AND THE ORDER
"A number of interesting legal issues arise, including questions as to causation, whether the interference in the Bank's enjoyment and control of its possessions has been caused by the 2009 order, the extent to which it can prove its loss, whether an award of damages is necessary to afford just satisfaction to the Bank and, if so, in what sum. In this respect it is relevant to note that there has been a recent amendment to the defence in April 2018 to plead that by reason of the Bank's own conduct and/or its ownership and/or control by the Government of Iran no order for damages is appropriate. Alternatively, there should be a significant reduction in any damages awarded."
"It is agreed that obligations of confidentiality arising under some other legal system do not provide an automatic entitlement on a party litigating in this forum to withhold documents from disclosure and it is a matter for the court's discretion whether production should be ordered."
After citing authority (to which I shall return), the Judge (at ) noted the HMT submission that it was relevant to the Court's discretion "how real any risk of prosecution in the foreign state is found to be". Ultimately (at ), it was agreed between the parties that:
"….the question is a discretionary one. The issue….is to what extent the fact that risk is invoked by the claimant affects the principle and to what extent the interest of the litigant trumps those of the party claiming that it is not legitimate to comply."
"85. I accept Dr Kakhi's expertise which was not in issue. I also accept the evidence indicates that there would be a breach of the law in Iran in providing the documents unredacted. The real question is as to the risks of sanction. In this area, while I see and I have read a few times now what Dr Kakhi says, which is that there are such risks from breach which he describes as even 'real' and 'probable' and 'likely', I am not entirely happy with his evidence. In particular it seems to me that there is a failure to address head on the critical question; that is, what is the risk of sanction in the face of the breach being as a result of compliance with an order of a competent court elsewhere.
86. Despite Mr McLaren's submissions [i.e., Mr McLaren QC, then representing the Bank], I do not read the report's allusion to deliberate/knowing wrongdoing as engaging with that question. It engages rather with the question of compliance voluntarily. That appears to be the basis on which the questions as to confidentiality in ciphering were posed to him [i.e., Dr Kakhi] for the purposes of preparing his second report…. He was not asked and he does not appear to be telling me what the situation would be if the court imposed a confidentiality ring. Similarly, in his earlier report where there is a section….dealing with the question of the impact of this court's order, it seems to me that he is not dealing with it in relation to the question of risk of sanction in the face of compliance with a court order, but only in relation to the question of enforcement.
87. The question of risk is…plainly in play on the authorities. I would have expected it to be actively and specifically engaged with on that basis…..It is…still more surprising in that (i) Dr Kakhi does say that legal compulsion provides an excuse and (ii) that question of legal compulsion providing an excuse (when it is an order of the Iranian court) provides the very obvious jumping off point for engaging with the concept of what qualifies as legal compulsion. And yet he does not do so. He does deal…with the effect of the English court's order; but there he does so only as regards the separate question of enforcement, without dealing at all with the question of the Iranian Courts' attitude to complying with such an order. Nor does he specifically deal with the question of legal compulsion and comity. The result is that in performing the weighing exercise I lack evidence on this key point from the Bank."
"92. …it seems to me fair to conclude that the position of the Iranian Government vis a vis the Bank does suggest that it would be well placed to offer support in any legal challenge and that, given that non-compliance with the order could only harm the chances of success of the Bank in this important claim which it brings, the Government support would be likely to render the chances of sanction very much less than they would be even in a normal case of compelled production…..
94. I therefore conclude that the evidence demonstrates the production would be a breach of Iranian law but the factors which I have considered indicate that the risk of prosecution and sanction are not as serious as Dr Kakhi's indications in relation to what might be called voluntary disclosure. I do not accept that Dr Kakhi's evidence, which does on reading appear to address voluntary production, should be read as extending without nuance to the facts of this case. I conclude that there is no real evidence evaluating any risk as a result of complying with the order. I do, however, accept his evidence as to extraterritoriality."
"…while not emulating Flaux J [who had conducted an earlier hearing] and being able to think of a 'multitude of reasons' off the top of my head, I can even looking at the question fairly critically, see the following."
"106. When I balance these various factors, the one against the other, I am satisfied that the appropriate answer is that an order along the lines sought by HMT should be made.
107. As to that order, I have been troubled as to whether any form of confidentiality club should be ordered at all since that is contrary to the default position and the Bank does not itself seek a confidentiality club. However, I note HMT's own willingness to contemplate this. Thus…..in the interests of those whose details might otherwise come into the open, as well as in the interests of offering as much respect as possible to the legal position in the foreign jurisdiction – because I am aware and I should make plain that I do understand their concern for confidentiality of material such as this – I am prepared to order a confidentiality club. There should be limitation to named individuals and provision of a list of those authorised, the usual kinds of measures which should be taken to ensure that a confidentiality club does not get out of hand.
108. So far as ciphering is concerned….ciphering generally may well be a good idea with a view to ensuring that there is a possibility to protect client identities during trial."
"…Ministers, employees or contractors of HM Government, the Government Legal Department, the Defendant's expert accountants and counsel instructed in these proceedings."
That is, it may be observed, a broad membership – but, as already highlighted, the Bank has not sought to advance any proposals or submissions for narrowing the membership. At all events, a "Confidentiality Ring Register" is to be maintained by HMT's solicitors. A copy of or detail from the Confidentiality Ring Register is to be provided to the Bank "…if agreed by the parties or so ordered by the court".
THE PRINCIPAL ISSUES ON THE APPEAL
i) The actual risk of prosecution faced by the Bank (or its employees) in Iran should it comply with the order; ("Issue I: Risk")
ii) The importance of production of the documents in unredacted form to the fair disposal of the trial; ("Issue II: Need")
iii) The discretionary balancing exercise for the Court: weighing Risk under Issue I against Need under Issue II ("Issue III: Striking the right balance").
THE RIVAL CASES
THE EXPERT EVIDENCE
"Does it make any difference…that Bank Mellat is required to give disclosure and inspection of such documents by an Order of the English Court in litigation which Bank Mellat has brought in England?"
He gave the following extended answer:
"44. As explained above, the order of a foreign court is not capable of being enforced automatically, and would have to be taken through the domestic judicial process to be first recognised, and then enforced where appropriate….
45. In principle, there is no bar on the 'recognition' of foreign court orders/judgments in Iran but their 'enforceability' is contingent on their approval at the discretion of the domestic court through the issuance of an 'enforcement order'.
47. According to Article 1295 of the Civil Code, a foreign judgment/document will only be considered as legal if the following conditions are met:
- Their content is not in contradiction with public policy or good morals in Iran.
49. ….privacy and confidentiality are key principles of Sharia law, and therefore Iranian law. In my opinion, an order issued by a foreign court for disclosure of client information and/or documents is likely to be found contrary to public order/ morality, per Article 1295, due to the emphasis on the preservation of individual privacy within Islamic doctrine. In my view, a disclosure order, such as that of Flaux J, would not be directly enforceable by the courts in Iran; and as noted, additional scrutiny by the Iranian courts in the context of Iranian principles and policies would likely find such disclosure incompatible with preservation of good morals and public policy and not recognise the order as valid under Article 1295."
"Does it make any difference to this question that Bank Mellat is required to give disclosure and inspection of such documents by an Order of the English Court in litigation which Bank Mellat has brought in England?"
Dr Kakhki answered in these terms:
"61. The applicable provisions relating to disclosure are part of Iranian law, and are regarded as public policy by a sovereign state. In the absence of a bi-lateral treaty between the two countries any disclosure based on an English court order would not negate the overriding duty of the bank to preserve confidentiality under domestic Iranian law. Therefore, in my opinion, if Bank Mellat disclosed information based on an English court order they would be held responsible for the breach of their duty."
"64. To summarise…Bank Mellat is bound across its branches and subsidiaries to act in accordance with Iranian law, which protects customer privacy in accordance with Sharia principles. …..these provisions are enshrined within the Iranian Constitution…. Therefore Bank Mellat has a duty to protect the confidentiality of its customers' details which extends to redacting identifiable information. Even if the court order for disclosure of the information were taken through the court system in Iran it is likely that this information would similarly be ordered to be redacted/concealed considering the fundamental importance and emphasis within Sharia on the privacy, dignity and respect of the individual and their associated rights. I would like to reiterate that the banking system in Iran is fully Sharia compliant and it is…highly likely that an order for full disclosure would be found to be against public order in a country where there is no separation between religion and the state and all laws and regulations are based on fundamental principle of Sharia including the right to privacy."
"Does Bank Mellat have a right or duty under Iranian law not to provide customer information to HMT through a confidentiality ring, in the manner proposed by HMT in its application? Please identify the relevant right or duty."
He answered as follows:
"5. …the liability explained in my First Report would still apply despite disclosure being limited to a confidentiality ring. As mentioned previously, Bank Mellat has both a right not to reveal customer information and a duty not to disclose confidential information, and would be at risk of criminal investigation and liability were it to do so. It is not difficult to find examples of arrest and prosecution of Iranian bank employees for privacy law offences. For example, one account from 26th July 2016 details the arrest of 4 employees for disseminating information regarding over 200,000 bank customers (including names and addresses) without authorisation…."
The source of the example appears to be a BBC website.
"9. …it is not difficult or unlikely that the Iranian authorities would define 'state security' or 'national interest' so as to cover many types of information, including the customer information being considered in the present case. It is….probable that the Iranian authorities would conclude that the disclosure of banking customer information on this scale could potentially lead to widespread distrust of the domestic banking system of which customers would previously have trusted the secrecy and privacy, which could undermine the national interest. These considerations would make prosecution and a significant penalty more likely in my view."
"21. ….revelation to a confidentiality ring as proposed would not eliminate liability and is unlikely to reduce the punishment if investigated. Disclosure of confidential customer information by Bank Mellat to a confidentiality ring in the manner proposed would carry a very real risk of prosecution and potential persecution of the offenders by the Iranian authorities, in addition to the risks to the Bank's reputation and future business. ….. In summary, under Articles 604 and 648 of the Iranian Penal Code offenders face three months to one year's imprisonment in addition to payment of a fine and compensation for damages caused. Moreover, as well as payment of damages to affected customers or third parties, the Bank would be likely to lose its licence to operate…..
22. This opinion is supported by my understanding as to the sensitivity of the Iranian authorities in relation to the materials under consideration…..Further, and to the extent Iranian authorities perceive this to be an issue of national importance (which…seems likely), such investigations would be conducted by the Iranian Revolutionary Courts and Ministry of Information and Intelligence (Ettela'at) which are known for use of aggressive investigative techniques…..
23. In this context, it is entirely understandable that employees of Bank Mellat would be extremely wary of contravening Iranian criminal law….. Unfortunately, within Iran the consequences of criminal conduct can be felt within the personal sphere as well as affecting the corporate entity.
24. For the avoidance of doubt I do not consider that the Bank could remove this risk by applying for an Iranian court order…..it is unlikely the Iranian courts would order the disclosure of personal information (even to a limited number of recipients….), as to do so would override fundamental Islamic and Iranian principles of privacy and confidentiality. In addition, the Iranian courts would be likely to be wary of legitimising disclosure of confidential information to third parties abroad (and particularly a foreign state). As such, and based upon my experience of Iranian courts and practising in Iran as well as my research….including discussions with practising professionals in Iran, any application would have very low prospects of being successful before the Iranian courts."
THE LEGAL FRAMEWORK
i) In English private international law, foreign law is a question of fact, to be proved by a duly qualified expert in the law of that foreign country. The function of such an expert extends to both the interpretation and application of the foreign law.
ii) The burden of proof rests on the party seeking to establish the proposition of foreign law in question.
iii) Although the English Court will scrutinise the evidence adduced, it will not undertake its own researches into questions of foreign law, any more than it will into other questions of evidence.
iv) When scrutinising evidence of foreign law, as on any other question of evidence, the Court is not inhibited from using its own intelligence and common sense.
v) Where expert evidence on foreign law is uncontradicted, the Court "should be reluctant" to reject it and is not entitled to do so on the basis of its own research; however, as explained in Dicey, Morris and Collins (at para. 9-016):
"….while the court will normally accept such evidence it will not do so if it is 'obviously false', 'obscure', 'extravagant', lacking in obvious 'objectivity and impartiality' or 'patently absurd' or if 'he never applied his mind to the real point of law' or if 'the matters stated by [the expert] did not support his conclusion according to any stated or implied process of reasoning'….Or, in other words, 'using its own intelligence as on any other question of evidence'…. "
"….while disclosure and inspection cannot be refused by reason of the confidentiality of the documents in question alone, confidentiality (where it is asserted) is a relevant factor to be taken into account by the court in determining whether or not to order inspection. The court's task is to strike a just balance between the competing interests involved – those of the party asserting an entitlement to inspect the documents and those of the party claiming confidentiality in the documents. In striking that balance in the exercise of its discretion, the court may properly have regard to the question of whether inspection of the documents is necessary for disposing fairly of the proceedings in question….."
"…I am not concerned with the discovery required by RSC Ord. 24 from ordinary parties to English litigation who happen to be foreigners. If you join the game you must play according to the local rules. This applies not only to plaintiffs but also to defendants who give notice of intention to defend…..Of course a party may be excused from having to produce a document on the grounds that this would violate the law of the place where the document is kept…..But, in principle, there is no reason why he should not have to produce all discoverable documents wherever they are."
"While the court's ultimate concern must always be to ensure the fair disposal of the cause or matter, it need not be unmindful of other legitimate concerns nor is it powerless to control the terms upon which production and inspection may be ordered. I would not wish it thought that because, as I conclude, production and inspection may be ordered therefore they must at once be ordered unconditionally."
"Another country's decision on what conduct does or does not attract criminal or penal sanctions would rebound on the domestic court. The foreign law would override the domestic court's ability to conduct its proceedings in accordance with its own procedures and law. If an answer would tend to expose the witness to a real risk of prosecution under a foreign law then, whatever the nature of the activity proscribed by the foreign law, the witness would have an absolute right to refuse to answer the question, however important that answer might be for the purposes of the domestic court's litigation."
The "opposite extreme" (at p.251) involved the proposition that the prospect of prosecution under foreign law was neither here nor there; the witness would always be required to answer a relevant question in the domestic proceedings, regardless of the likely practical consequences for the witness under foreign law. This, Lord Nicholls stated, "would be a harsh attitude". He went on:
"It would be a reproach to any legal system. One would expect that a trial judge would have a measure of discretion…."
"and could, at least in theory, suffer the imposition of a penalty, it appears to me that this risk, on the evidence I have heard, is little more, and indeed is probably no more, than purely hypothetical."
Neuberger J (at ) added these observations:
"…in connection with litigation of this sort, involving a substantial sum of money, alleged wrongdoing and in the context of a massive and notorious international financial scandal….[it]…would be highly unusual if the French criminal authorities were to prosecute a party to an action such as this in England, in circumstances where he was required to comply with an order of the Court for production of documents for the purposes of that action. The enforcement of a law such as the Blocking Statute in a case such as this would not correspond with generally accepted notions of comity."
"Whether or not compliance with the orders of the English court…is illegal under French law, the English court has jurisdiction to make them as part of the ordinary process of disclosure in civil proceedings because such matters are governed by English law as the lex fori. In the exercise of its jurisdiction, it is legitimate for the court to take account of the real risk of prosecution. On the information available to Henderson and Roth JJ when they made their orders, it cannot be said that their exercise of discretion was flawed in law. First, there is no evidence of any prosecutions under the French blocking statute….apart from that in Christopher X (unreported) 12 December 2007. That was a case in which…the facts were exceptional, involving as they did the use of deception by a French lawyer without the protection of a court order."
"The court may take into account, in deciding whether to order disclosure, the fact that compliance with the order would or might entail a breach of foreign law……. It will…need to be shown that the foreign law contains no exception for legal proceedings, and that it is not just a text, or an empty vessel, but is regularly enforced, so that the threat to the party is real. Even so, the court has a discretion and, on the basis that English litigation is to be played according to English and not foreign rules, it will rarely be persuaded not to make a disclosure order on this ground. More often than not where foreign law is raised as an objection, any threat of a sanction abroad against the disclosing party is found to be more illusory than real."
i) In respect of litigation in this jurisdiction, this Court (i.e., the English Court) has jurisdiction to order production and inspection of documents, regardless of the fact that compliance with the order would or might entail a breach of foreign criminal law in the "home" country of the party the subject of the order.
ii) Orders for production and inspection are matters of procedural law, governed by the lex fori, here English law. Local rules apply; foreign law cannot be permitted to override this Court's ability to conduct proceedings here in accordance with English procedures and law.
iii) Whether or not to make such an order is a matter for the discretion of this Court. An order will not lightly be made where compliance would entail a party to English litigation breaching its own (i.e., foreign) criminal law, not least with considerations of comity in mind (discussed in Dicey, Morris and Collins, op cit, at paras. 1-008 and following). This Court is not, however, in any sense precluded from doing so.
iv) When exercising its discretion, this Court will take account of the real – in the sense of the actual – risk of prosecution in the foreign state. A balancing exercise must be conducted, on the one hand weighing the actual risk of prosecution in the foreign state and, on the other hand, the importance of the documents of which inspection is ordered to the fair disposal of the English proceedings. The existence of an actual risk of prosecution in the foreign state is not determinative of the balancing exercise but is a factor of which this Court would be very mindful.
v) Should inspection be ordered, this Court can fashion the order to reduce or minimise the concerns under the foreign law, for example, by imposing confidentiality restrictions in respect of the documents inspected.
vi) Where an order for inspection is made by this Court in such circumstances, considerations of comity may not unreasonably be expected to influence the foreign state in deciding whether or not to prosecute the foreign national for compliance with the order of this Court. Comity cuts both ways.
DISCUSSION AND CONCLUSIONS
ISSUE I: RISK
i) As to the impact in Iran of the production of the Iranian documents unredacted (i.e., utilising ciphers but with a master list accessible to HMT), in compliance with an order of the English Court, Dr Kakhki's first report dealt at some length (at paras. 44 and following) with the enforceability in Iran of the English Court order. Dr Kakhki's conclusion was clear: the order of a foreign court would only be enforced if recognised and then enforced by an order of the domestic Iranian Court. Paras. 49 and 64 of the first report suggest that, at the least, it would be unlikely that an order would be obtained from the Iranian Court permitting unredacted production – a matter forcefully reiterated at para. 24 of Dr Kakhki's supplementary report. The question of enforcement of an English Court order in Iran was not, however, the question with which this Issue was (at least directly) concerned and the Judge's observations in this regard (at ) were, with respect, justified.
ii) That said, matters do not end there. The first report, at para. 61, does, in my judgment, address squarely – or "head-on" – the consideration that compliance with an order of the English Court would not excuse the Bank from a breach of its duty of confidentiality under Iranian law. Para. 61 is, however, the high point of the first report for the Bank's case. Yet, on a fair reading it does not go beyond the view that unredacted production, absent a permissive order from the Iranian Court, would give rise to a breach of Iranian criminal law. It does not deal with the actual risk of prosecution in Iran.
iii) It is fair to say, as the Judge did, that Dr Kakhki's supplementary report expanded somewhat the grounds upon which the Bank sought to base its case on Issue I – and, for my part, I can understand the Judge's concern (at ) in this regard. Thus, questions of electronic transmission of the materials and "state security" were ventilated or principally ventilated in the supplementary report rather than the first report.
iv) Dr Kakhki's supplementary report expressed the opinion that production of the Iranian documents unredacted, to a confidentiality club, would not absolve the Bank from its liability for breach of Iranian criminal law – all the more so, where one of the members of the club was a foreign State (para. 24). Dr Kakhi commented (at para. 21) that production of the Iranian documents unredacted to the confidentiality club would carry "a very real risk of prosecution", aside from other consequences. The only example given, however, of the arrest and prosecution of Iranian bank employees for breach of their duty of confidentiality is that found at para. 5 of the supplementary report – an example self-evidently far removed from the facts of the present case.
i) In my view, the actual risk of prosecution in Iran involves an inquiry clearly distinct from one going to Iranian law or even the interpretation and application of Iranian law. I am therefore unable to agree that Dr Kakhki's expert evidence (without more) was determinative on this question. The mischief of this Court conducting its own research on questions of foreign law is far removed from the inquiry here as to the actual risk of prosecution in Iran – an altogether more mundane and, essentially, factual question.
ii) It is, next, important to distinguish between (a) the question whether production of the Iranian documents unredacted to the confidentiality club would, absent a permissive Iranian Court order, give rise to a breach of Iranian criminal law and (b) the actual risk of prosecution in Iran. The Judge accepted (at ) that such conduct would constitute a breach of Iranian (criminal) law. As already suggested, it is not at all clear that question (b) did fall within Dr Kakhki's expertise; if so, the Judge was plainly not constrained by his evidence as to the conclusions open to her. However, even insofar as the actual risk of prosecution involved a question of Iranian law and falls within Dr Kakhki's area of expertise, it is to be recollected that the burden rests on the Bank to establish the relevant risk and that the Court is entitled to use its own intelligence in scrutinising that evidence. In this regard, with respect, Dr Kakhki's evidence was anything but compelling. To reiterate, despite Dr Kakhki's assertion as to the "very real" risk of prosecution, the only example of prosecution was contained in para. 5 of the supplementary report and far removed from the facts of the present case. The Judge was not obliged to accept that - somewhat exiguous - evidence as persuasive on the degree of risk involved, still less to extrapolate from the facts of that example to those now before the Court. For my own part, that example falls well short of making good Dr Kakhki's view as to the "very real" risk of prosecution. Even if, as Mr Young suggested, there is a lack of data on Iranian prosecutions, it is noteworthy that Dr Kakhki had discussed this matter with fellow professionals (supplementary report, para. 24) and it must be inferred that those discussions yielded nothing more.
iii) It is probably unnecessary and somewhat speculative to go further but it cannot be overlooked that compliance with the (Judge's) order as to production of the Iranian documents, would assist in the prosecution of the Bank's very substantial claim against HMT – not an irrelevant consideration for the Iranian Government, with (as is common ground) its substantial shareholding in the Bank. Nor does it require any assumptions as to the rule of law or separation of powers in Iran, for a consideration of this nature to weigh with the Iranian prosecution authorities; any rational evaluation of a decision to prosecute would do so. Furthermore, if it is said that the present state of international relations might point the other way, the proposition would be distinctly double-edged. On any view, it would not be an attractive stance when coming to the balancing exercise - pitting reliance on a foreign State's worldview, particularly if held regardless of comity, against the domestic court's ability to conduct its proceedings in accordance with its own procedures and law (Brannigan, supra).
iv) The Bank subjected the Judge's conclusion, that the risk of prosecution was "not as serious" as Dr Kakhki had indicated, to particular criticism. For my part, this criticism was unwarranted; to the contrary, the Judge's conclusion was one she was amply entitled to reach and entirely fair. The Judge was not prepared to treat the risk of prosecution as purely hypothetical (unlike the authorities as to the French Blocking Statute (Morris and Servier); that was a conclusion she was entitled to reach, given the sensitivity of the issue and the importance attributed to confidentiality in the evidence of Iranian law. On the other hand, for the reasons already given, the Judge was entitled to subject Dr Kakhi's assessment of the actual risk of prosecution to critical scrutiny and to differ from it.
v) For completeness, though much was made by the Bank of the "fundamental" nature of confidentiality and privacy in Iranian law, perspective must not be lost; it is to be noted that such considerations can be overridden by a domestic Iranian Court order. Unsurprisingly, it appears that in Iranian law, as in other legal systems, such issues do not involve absolutes but a balance of competing considerations.
ISSUE II: NEED
ISSUE III: STRIKING THE RIGHT BALANCE
i) As is clear from Dr Kakhki's evidence, customer confidentiality is not an "absolute" under Iranian law and can be overridden by a domestic court order. Accordingly, an application could be made in Iran for the production of the documents in accordance with the requirements of the English Court order. Such compliance could only assist the Bank in the pursuit of its claim in this jurisdiction – a claim which, if successful, would yield benefit to the Iranian State, by way of the Iranian Government's shareholding in the Bank. Notwithstanding the view expressed by Dr Kakhki as to the likelihood of failure of any such application, it is difficult, with respect, to see why an Iranian Court would not wish to take account of such considerations.
ii) Even if compliance with the order would involve a crime in Iran and no "protecting" Iranian court order can be obtained, there is no reason to suppose that the Iranian prosecuting authorities lack all discretion as to any decision to prosecute. By way of comparative example, under English law, prosecuting authorities have a discretion whether to prosecute in the light of the public interest – even if there is otherwise sufficient evidence for a prosecution. No evidence has been adduced to demonstrate that the Iranian prosecuting authorities lack any such discretion. For reasons already canvassed, a decision not to prosecute the Bank for compliance with the order would, rationally, have clear attractions in the (Iranian) public interest. Against this background, it is not unreasonable to invite the Iranian Court and prosecuting authorities themselves to have regard to considerations of comity.
POSTSCRIPT: CASE MANAGEMENT
LORD JUSTICE PETER JACKSON
LORD JUSTICE COULSON