Disclosure - application for disclosure
Before : |
J. A. Clyde-Smith O.B.E., Commissioner, sitting alone |
Between |
BNP Paribas Jersey Trust Corporation Ltd |
Plaintiff |
And |
Camilla de Bourbon des deux Siciles |
Defendant |
Advocate L. C. Gregory for the Plaintiff.
Advocate O. A. Blakeley for the Defendant.
judgment
the COMMISSIONER:
1. By his letter of 28th September, Advocate Redgrave for BNP applied for the material disclosed by Camilla in these proceedings to be relied upon in related proceedings in other jurisdictions. The application is supported by a second affidavit from Mr Brandon O'Neil and BNP was represented at the application by Advocate Gregory.
2. The Act of the 25th February, 2020 is in the following terms:
"...that other than with the leave of the Court any information obtained pursuant to this or any subsequent order of the Court in respect of this order shall only be used for the purposes of identifying the nature, value and location of Madame Crociani's assets for the purpose of enforcing BNP Jersey's indemnity judgment against Madame Crociani in this action; and/or for the purposes of obtaining further freezing injunctions in other jurisdictions against Madame Crociani and/or for the purposes of obtaining orders in other jurisdictions for enforcement of the terms of this order"
And this is in the same terms as the original order made in December 2018.
3. BNP is engaged in a wide range of proceedings in multiple jurisdictions aimed at seeking recovery of some $130,000,000 under its indemnity from Madame Crociani. The Curacao Conspiracy Judgment shows that Camilla is involved in assisting Madame Crociani in evading her obligations to pay the monies she owes to BNP, and BNP therefore is required to litigate against Camilla and other third parties seeking to prevent its recovery. In doing so it wishes to marshal all relevant evidence available to it to prevail in those proceedings and, where relevant information it has obtained from Camilla pursuant to the disclosure orders made against her in this jurisdiction.
4. As Mr O'Neil explains in his affidavit there are currently proceedings in Curacao, Switzerland and Florida where assets have been attached. He makes the point in his affidavit that, coming to Court on each occasion BNP wishes to use documents disclosed here is inefficient and expensive. Often the information is need urgently and Advocate Gregory made the point that seeking such information may in itself disclose the strategy of BNP in its enforcement process.
5. BNP therefore requests permission to use the disclosure made by Camilla here, in the proceedings brought here against her and third parties by adding this wording to the end of the order of 25th February, 2020:
"and/or for the purposes of pursuing claims of compensatory relief against third parties for unlawfully obstructing or interfering in BNP Jersey's ability to pursue or obtain recovery pursuant to its indemnity judgment against Madame Crociani's assets"
6. Advocate Blakely resists the application which he described as an abuse, on the following grounds:
(i) BNP's complaint in the contempt proceedings was that the information produced by Camilla, to the extent not already in the public domain or known to BNP, was of no use, yet now it was claiming that the information was of use and wanted to use it in other jurisdictions. It can't, he said have it both ways.
(ii) If it was obvious in December 2018 and in particular February 2020 that the information disclosed by Camilla here would be needed in other proceedings why not say so at the outset.
(iii) If information was required, say in the Curacao courts, then he said an application should be made in that jurisdiction which has the conduct of the case. It was perfectly legitimate in his view for a party such as Camilla to take advantage of the laws and procedures that apply in different jurisdictions.
(iv) This Court was only given a very high level view of the proceedings in those other jurisdictions. Camilla has provided information on a particular footing and at a certain point in time, only to find that this footing changes and morphs into something different.
(v) The changes sought, were in his view far too wide.
7. It needs to be remembered that at the heart of this matter is this Court's judgment against Madame Crociani under the indemnity which it is concerned to ensure is enforced. In that respect see paragraph 17 of Dalemont Ltd v Senatorov [2012] 1 JLR 108. A judgment creditor should normally have all the information necessary to execute the judgement anywhere in the world, see ENRC NV v Zamin Ferrous Limited [2015] (2) JLR 153, and that must entail being able to use information obtained in one jurisdiction in enforcement proceedings brought in another jurisdiction, whether against the judgment debtor or third parties resisting such enforcement.
8. The restrictions imposed in December 2018 and February 2020 were rightly imposed in order to protect against the misuse of information gained pursuant to orders of this Court, but importantly they were made expressly subject to the leave of the Court. As matters have progressed it became clear that BNP needed to enforce in at least these three jurisdictions and furthermore the proceedings have extended to involve Camilla who has been found to be assisting her mother in evading enforcement.
9. There is no question in my mind that this Court should facilitate the enforcement process abroad in respect of its own judgment by ensuring that other jurisdictions are made aware of information that has been obtained here. That enforcement process has now extended to third parties such as Camilla for obstructing or interfering in that enforcement process. Advocate Gregory pointed to a particular email from Camilla which BNP's counsel in Curacao wished to deploy in her appeal in that jurisdiction. It would, as she said, be a convoluted process to require BNP to somehow seek disclosure of that email in Curacao without revealing that it already has copy of it in its proceedings brought here against Camilla.
10. Enforcement in a case such as this is an evolving process and one which, in my view, the Court should facilitate. I do therefore grant the application.
11. I also give leave for the file and parties interlocutory judgment of 28th September, 2020, to be disclosed in the Curacao proceedings. The hearing took place in public and that judgment will be published in the usual way after the final contempt hearing has taken place on 11th and 12th November, 2020.
Authorities
Dalemont Ltd v Senatorov [2012] 1 JLR 108.
ENRC NV v Zamin Ferrous Limited [2015] (2) JLR 153.