CHANCERY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
The Attorney General of Zambia for and on behalf of the Republic of Zambia |
Claimant |
|
- and - |
||
Meer Care & Desai (A firm) and Others |
Defendants |
____________________
David Head (instructed by Reynolds Porter Chamberlain) for the 1st Defendant
Roger Stewart & Clare Stanley (instructed by Barlow Lyde & Gilbert) for the 2nd & 8th Defendants
Chima Umezuruike and Razak Atunwa (instructed by Bensons) for the 3rd, 6th, 7th, 9th, and 11th Defendants
Hearing dates: 28th April 2006
____________________
Crown Copyright ©
Peter Smith J :
INTRODUCTION
BLG LETTER 12TH APRIL 2006.
GENERAL OBSERVATIONS
BLG'S LETTER 12TH APRIL 2006
CLARIFICATION AMENDMENTS (ITEM 2)
(1) In my judgment the pleading is sufficiently answered by DLA's letter.(2) Once again paragraph 3 of the proposed re re re-amended Particulars of Claim as DLA's letter shows is a sufficient amendment to show that the conspiracy is the removal of monies from the government by the Zamtrop account and/or removing government money via a different vehicle namely the Office of the President. Any monies coming from that office the Claimant contends are also government monies and I do not see that the present claim causes these Defendants any difficulty.
(3) As DLA suggest this point was rejected by me on 23rd March 2006 and I refused permission to appeal.
Equally I do not accept that the plea is a new cause of action and even if it were it plainly falls within CPR 17.4 in my view as arising out of substantially the same facts. Finally in this context the Claimant can in any event rely upon the counter issues of fraudulent concealment as set out in its Reply.
Item 3(b) is an example of how BLG attempt to escalate matters by asserting that the Claimant asserts something which it does not assert. There is no plea that Mr Thaker senior was dishonest and it does not become so simply because BLG assert that the allegation against BT that he was acting with the authority of his co partner amounts to "an advancement of allegation of dishonesty against him personally". I simply do not see that. Merely because BT acts with the authority of his co partner and within that authority acts in a dishonest way does not mean BT senior himself is dishonest. It merely means that because the acts were done within his authority even though they were dishonest BT senior is vicariously liable for them as well. That does not involve a finding that he was personally dishonest.
(4) This has been answered in my view correctly by DLA.
(5) DLA have corrected this objection.
(6) It seems to me that this objection can be dealt with by de-capitalising the word Misappropriated and Government.
(7) I accept DLA's explanation as to how these funds are dealt with and the flow of funds identified by the Claimant.
(8) I am not quite sure what the purpose of this request is but it has been answered by DLA.
(9) This has been answered.
(10) This has been answered.
(11) This has been answered.
(12) This has been answered in both respects.
(13) This has been answered.
(14) This has been clarified.
(15) The request here is for the particulars of the allegation that BT acted on the instructions of an unidentified officer. The answer given by DLA is that it is not alleged that BT acted on the instructions of an unidentified officer. In my view there is an inaccurate request and an inaccurate answer. The Claimant appears to be asserting that BT amongst other things acted dishonestly in assisting amongst other an unidentified officer. That requires in my view clarification. If there is an unidentified officer the circumstances of involvement of that unidentified officer need to be given.
(16) I have already dealt with this under answer (10).
(17) This is the same answer in respect of the senior BT.
(18) This has already been answered in respect of BT senior.
(19) This has been answered.
(20) DLA has answered this. It is clear what the basis for the allegation of knowledge is derived from as set out in paragraph 407 B.
(21) This too has been answered by a reasonable reading of paragraphs 407 through to 407 C.
(22) This has been answered.
(23) This is a typographical error and has been corrected.
(24) This has been clarified.
(25) This has been answered.
OPPOSED AMENDMENTS
(1) As DLA say in their response (their letter paragraph 36) the purpose of the amendment was to clarify the nature of the conspiracy. There is as BLG say and overarching conspiracy but it is not a conspiracy which provides anybody who is a party to any laundering of Zambian government money. It is only those who participate in the conspiracy identified in paragraph 1095 which is a conspiracy which starts on 30th August 1999 with an agreement that the parties to it by unlawful means are conspiring to defraud the Claimant by misappropriation of monies belonging to it and to conceal such fraud. That fraud is perpetrated by various transactions which are subsequently identified. I see no difficulty about that as a plea. I accept that it will involve CM and BT dealing extensively with the entirety of the allegations under this part of the re re re-amended Particulars of Claim but so be it. The Claimants assume the burden for that and it seems to me it can only really be further considered when the Defendants have pleaded, led their evidence and the matter goes to trial or is reviewed before trial. It would be quite wrong to take a pre-emptive decision at this stage in a case like this with its complexity, multiple Defendants and large dealings of money which require explanation. Given the nature of the transactions the Claimants face difficulty without seeing what the Defendants say was the purpose of the transactions. That is why I ordered the Scott Schedule.I do not see that these Defendants face an embarrassing or meaningless pleading. It is wide ranging but it does not mean they cannot meet it. If at the end of the trial the claim against them is not established then they have the protection of orders for security for costs. If on the other hand these allegations are struck out and the evidence that arrives at trial shows that it was wrong to strike them out it will be virtually impossible to reinstate the allegations against them at that late stage.
The essence of the allegation of participation in the conspiracy is in form 135-1138. The Claimants are seeking to persuade the court to infer that these (and other Defendants) were party to the conspiracy because of the nature of the transactions and their lack of response to them in any proper way.
I see no difficulty about this. The Claimants cannot establish a positive case at the moment although they may presumably change that in the light of the positive case (if any) provided by the Defendants to the various Scott Schedules.
(2) This has been answered in the light of the answer is an acceptable pleading in my view.
(3) This has been answered.
(4) I accept that the Claimants have not yet advanced a clear case for knowing receipt. DLA's answer is a reference to paragraph 92. However it seems to me that sooner or later the Claimants must in respect of all the payments in the light of the answers to the Scott Schedules identify which payments they assert they have a claim for knowing receipt as opposed to knowing assistance. I agree with BLG's contention that at the moment it is not satisfactory but it seems to me that I should not strike it out in advance of seeing what these Defendants say. I will give these Defendants an opportunity after close of pleadings to raise this matter further.
CONCLUSION