Equatorial Guinea v. Bank of Scotland International & Ors (Guernsey)  UKPC 7 (27 February 2006)
Privy Council Appeal No 59 of 2005
(1) The President of the State of Equatorial Guinea
(2) The Procureur of the State of Equatorial Guinea Appellants
(1) The Royal Bank of Scotland International Respondents
(a company incorporated in Jersey)
(2) Logo Limited (Intervener)
(3) Systems Design Limited (Intervener)
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 27th February 2006
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Present at the hearing:-
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
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[Delivered by Lord Bingham of Cornhill and Lord Hoffmann]
information and documents concerning the beneficial ownership of both the interveners (the name of one being then incorrectly stated); and
documents identifying incoming and outgoing transactions on bank accounts in the names of the interveners, Mr Mann and Mr Du Toit.
The application was prompted by investigations which were being carried out by the appellants into the funding of the coup. The appellants believed that the interveners had been involved in that capacity, on the grounds given in Mr Page's affidavit. The interveners deny any involvement in the coup, whether by way of funding or otherwise.
"2. The learned Lieutenant Bailiff wrongly decided that the information sought could be provided to the [appellants] upon their undertaking only to use it in respect of certain English proceedings notwithstanding that the learned Lieutenant Bailiff had found on 3rd November 2004 that there was at least a possibility that the information provided might be disseminated and that concerns were justified as to the possible use of information which might be disclosed by [the Bank] and that therefore the order of 30th April be stayed to enable the [appellants] to provide specific proposals as to how the Royal Court could retain some effective control over the use of the information if it were to be disclosed. Notwithstanding that finding and order the learned Lieutenant Bailiff ordered on 9th and 10th December that the information could be disclosed even though the [appellants] had not provided any proposals as to how the Royal Court could retain such control."
This, therefore, was the ground upon which the interveners sought to challenge the order.
"The power to order discovery is discretionary. The Court should not so order unless it is satisfied that it is just and convenient to do so (on the basis of, or by analogy with, [the grant of an injunction]."
The Court of Appeal held this to be misdirection (para 63 of its judgment):
"No Norwich Pharmacal type order should be made by the Royal Court unless the plaintiff establishes that it is essential and necessary [to assist the plaintiff in achieving justice] for the order to be made."
It is true that in some of the cases the word "necessary" has been used, echoing or employing the language of Order 24, rule 13 of the Rules of the Supreme Court. But, as Templeman LJ observed in British Steel Corporation v Granada Television Limited  AC 1096, 1132, "The remedy of discovery is intended in the final analysis to enable justice to be done". Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straightforward and available means of finding out, it will not be reasonable to achieve that end by overriding a duty of confidentiality such as that owed by banker to customer. If, on the other hand, they have no straightforward or available, or any, means of finding out, Norwich Pharmacal relief is in principle available if the other conditions of obtaining relief are met. Whether it is said that it must be just and convenient in the interests of justice to grant relief, or that relief should only be granted if it is necessary in the interests of justice to grant it, makes little or no difference of substance. In the present case the appellants were concerned to identify those who had financed the abortive coup in March 2004. It is not suggested that there was any legal means of doing so open to the appellants other than that which they chose.
"By international law every sovereign state has no sovereignty beyond its own frontiers. The courts of other countries will not allow it to go beyond the bounds. They will not enforce any of its laws which purport to exercise sovereignty beyond the limits of its authority."
"To pass upon the provisions for the public order of another State is, or at any rate should be, beyond the powers of the court; it involves the relations between the States themselves, with which courts are incompetent to deal, and which are intrusted to other authorities. It may commit the domestic State to a position which would seriously embarrass its neighbour. Revenue laws fall within the same reasoning; they affect a State in matters as vital to its existence as its criminal laws. No court ought to undertake an inquiry which it cannot prosecute without determining whether those laws are consonant with its own notions of what is proper."