The Judicial Committee of the Privy Council Decisions

 


Bolkiah & Ors v. The State of Brunei Darussalam & Anor (Brunei Darussalam) [2007] UKPC 63 (08 November 2007)

Privy Council Appeal No 69 of 2006

His Royal Highness Prince Jefri Bolkiah

and Others Appellant

v.

(1) The State of Brunei Darussalam

(2) Brunei Investment Agency Respondents

FROM

THE COURT OF APPEAL OF

BRUNEI DARUSSALAM

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 8^th November 2007

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Scott of Foscote

Lord Mance

Lord Neuberger of Abbotsbury

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[Delivered by Lord Scott of Foscote]

1. This is the judgment of the Board on the "substantive" issue, so described in paragraph 2 of the Board's judgment on the "procedural" issue delivered by Lord Bingham of Cornhill ("the fair trial judgment" – [2007] UKPC 62), namely, whether the BIA was entitled on a summary application to an order that the Settlement Agreement, executed on 12 May 2000 by the Government of Brunei, the BIA and Prince Jefri, be enforced. This judgment is intended to be read with the fair trial judgment and expressions in this judgment will, unless context otherwise requires, carry the same meaning as in the fair trial judgment. The essential factual, legal and constitutional background to the substantive issue is described in paragraphs 1 to 13 of the fair trial judgment but it is convenient to repeat some of that background here as a prelude to describing the issues that must be dealt with in this judgment.
2. The State of Brunei has considerable oil reserves from which it derives a very considerable revenue. The oil revenues are paid to and managed by the BIA on behalf of the State. From July 1983 until July 1998 Prince Jefri was chairman of the BIA. Over that period very substantial "special transfers", totalling some US$ 40 billion, were made from BIA accounts. Following an investigation by independent accountants, Arthur Andersen, the conclusion was reached that US$ 14.8 billion odd had been paid to or applied for the benefit of Prince Jefri, US$ 8 billion to accounts of His Majesty the Sultan and US$ 3.8 billion for Government purposes. The balance, some US$ 13.8 billion, is apparently as yet untraced. Prince Jefri does not deny that he was the recipient of very substantial sums of money from BIA accounts, that money derived from the BIA was used to fund the acquisition by him or by companies controlled by him of a number of valuable properties in various parts of the world, as well as valuable works of art, jewellery, motor cars, aircraft and other chattels. Prince Jefri denies that this application of BIA funds for his or his family's benefit constituted misappropriation or was in breach of his fiduciary duties. He says that during his time as chairman of the BIA he "only undertook his duties and tasks on the command of His Majesty and at all times had the authority to make the respective transactions" (para 21 of Prince Jefri's affidavit sworn on 16 January 2005).
3. Following the completion of the accountants' investigation into and report on the accounts of the BIA, there were negotiations between representatives of Prince Jefri and representatives of the BIA, as well as meetings between the Prince Jefri and the Sultan, regarding the return by Prince Jefri to the BIA of assets he had acquired from funds derived from the BIA. Over the period November 1999 to October 1998 various formal declarations and agreements relating to the return of assets by Prince Jefri to the BIA were signed by Prince Jefri. These consensual arrangements did not, however, succeed in settling the issues that had arisen and on 21 February 2000 proceedings were commenced in Brunei and in England against Prince Jefri, his eldest son, numerous companies and others. The claimants were the Government (of Brunei) and the BIA. Both damages and restitutionary relief were claimed in relation to Prince Jefri's alleged misappropriation of Government or BIA funds. Worldwide Mareva injunctions were obtained in Brunei and in England restraining the defendants from dealing with or disposing of assets up to a value of US$ 15 billion.
4. Following the commencement of proceedings and the grant of the injunctions, further negotiations took place with a view to the settlement of the litigation. Both sides were represented in the negotiations by solicitors from firms in England, Lovells for Prince Jefri, Freshfields for the Government and the BIA. Prince Jefri was advised also by a team of three English Queens' Counsel. Mr David Harel, of S J Berwin & Co, took part in the negotiations on behalf of the Sultan. A number of meetings between Prince Jefri and the Sultan took place.
5. These negotiations resulted in agreement being reached on the terms of a Settlement Agreement. The Agreement, dated 12 May 2000 was signed on behalf of the Government and the BIA and was signed by Prince Jefri on his own behalf and on behalf of his family. The Agreement recited that the Government and the BIA and Prince Jefri and his family "wish[ed] to resolve all disputes between them in respect of the use of funds belonging to [Brunei] and managed on its behalf by the BIA and assets acquired with or representing the proceeds of such funds" and that the parties had agreed the terms of settlement as set out in the Agreement. Their Lordships must refer later in some detail to the contents of the Agreement but it is convenient at this point to provide a very brief summary.

(i) Paragraph 1 of the Agreement contained definitions. The term "Assets" was defined as "all assets of [Prince Jefri] within paragraphs 1.1 and 1.2 of Schedule 7; and all assets of each member of [Prince Jefri's] family within paragraphs 1.4 and 1.5 of Schedule 7." The assets referred to included over forty properties in England, mostly in London, eleven properties in the USA, two properties in Paris and numerous properties or property interests in the Philippines, and, in effect, comprised all the assets of Prince Jefri or his family members anywhere in the world. The most important definition was that of "Excluded Assets". These were assets of Prince Jefri or his family that did not have to be transferred to the BIA. "Personal Liabilities" were also very important. These were any liabilities of Prince Jefri and his family members to anyone other than to the Government or the BIA, or to three Bruneian companies which were in liquidation and as to which special arrangements were made (in paragraph 8.2).

(ii) Paragraph 2 contained a covenant by the Government and the BIA not to bring any further proceedings, civil or criminal, against Prince Jefri, or any member of his family arising out of or in any way in connection with the use of the BIA managed funds or assets acquired with those funds, save for the purpose of enforcing the Settlement Agreement. The parties agreed that orders in the Tomlin form would be made staying the proceedings both in Brunei and in England. It is pertinent to note particularly the contractual bar on the commencement of any criminal proceedings against Prince Jefri. The enforceability of this is a matter to which their Lordships will later return.

(iii) Paragraph 3 imposed obligations on Prince Jefri and his family members to preserve assets. The terms of these obligations were much the same as those commonly to be found in Mareva injunctions. A number of assets or types of asset were specifically mentioned. These included the assets comprised in the "PT4200" trust, of which more later.

(iv) Paragraph 4 imposed on Prince Jefri wide disclosure obligations in relation to any assets anywhere in which he had an interest.

(v) Paragraph 5 required Prince Jefri, or his family members, to "transfer to or vest in the BIA the entirety of their interests in each of the Assets, except the Excluded Assets" unless the BIA indicated in writing otherwise. The transfers were to take place "as soon as reasonably practicable". A number of assets (specified in Schedule 4) were to be transferred within 30 days of the date of the Agreement. These included "[A]ll residential properties in Brunei of both a 'Royal' and 'non-Royal' nature save for any which are Excluded Assets".

(vi) Paragraph 5 contained an express representation by Prince Jefri that the assets to be transferred would include 70 specified properties, some in England, some in the USA, some in France and some in the Philippines. Among these were St John's Lodge in London, Cavell House in London, the New York Palace Hotel in New York, the Bel-Air Hotel in Los Angeles and 3-5 Place Vendome in Paris. The importance of the inclusion of these properties in the specified list will appear later.

(vii) Paragraph 7 contained an agreement that Prince Jefri would, at the same time as signing the Settlement Agreement, deliver to the Government or the BIA a signed statement accepting responsibility for the withdrawal and use of funds from the BIA contrary to his duties as Minster of Finance and/or chairman of the BIA.

(viii) Paragraph 8 contained an agreement by the Government and the BIA to indemnify Prince Jefri and his family members against any future claims for contribution or indemnity brought by third parties against whom the Government or the BIA might bring proceedings for relief in respect of the withdrawal or use of BIA funds.

(ix) Paragraph 8 also imposed an obligation on the BIA to establish a discretionary trust from the assets of which Personal Liabilities of Prince Jefri or his family members could be met. The trust fund was not to exceed US$ 200 million and was to be funded by reference to the value of the assets transferred to the BIA pursuant to the Settlement Agreement (see para 4 of the 6^th Schedule to the Settlement Agreement). The trust was not to last longer than 10 years and any surplus at the end of that period was to revert to the BIA.

(x) Paragraph 5.7 required the BIA to maintain a record of all assets transferred to it pursuant to the Agreement and an estimate of the value of each asset. A copy of the record and of any independent valuation, was to be provided to Prince Jefri on request.

(xi) Paragraph 9, headed "Confidentiality", required the parties to keep the terms of the Agreement confidential, but permitted disclosure, inter alia, "by the Government to the extent that the Government considers it appropriate to do so."

The above description of the contents of the Settlement Agreement is intended to be no more than a summary of the provisions particularly relevant to the issues before the Board on this appeal.

6. On 13 May 2000, the day after the date borne by the Settlement Agreement, a Consent Order was made in the High Court of Brunei. Paragraph 1 of the Consent Order amended the injunction that had been granted in February so as to bring the terms of that order into line with paragraph 3 of the Settlement Agreement. The Consent Order recited that a draft had been signed by Lovells, signifying Prince Jefri's consent to the Order, and all further proceedings in the action were stayed except for the purpose of enforcing the Settlement Agreement. On the same day, 13 May 2000, Prince Jefri executed a Deed of Assignment under which he consented to the revocation of his title to a large number of Brunei properties and assigned all his interests in the properties to a subsidiary of BIA, Bandone Sdn Bhd. The properties thus transferred to Bandone included RBPC3 (Assana), RBPC4 (Arrifa), RBPC9 (Nadaa), and Lake House. Nonetheless Prince Jefri continued his occupation of Assana and Nadaa, which he says he regarded as together constituting his official residence, and of Arrifa and Lake House, which he says he regarded as together constituting his private residence.
7. It is, however, common ground that Prince Jefri has not transferred to the BIA numerous properties and other assets outside Brunei, including, in particular, the five properties specified in paragraph 5 (vi) above and the assets of the PT4200 trust (para 5 (iii)). The BIA, for its part, has discharged very considerable Personal Liabilities of Prince Jefri.
8. On 11 October 2004 the BIA issued a summons in the Brunei High Court, pursuant to the liberty to apply in the Consent Order, seeking orders against Prince Jefri to enforce obligations of disclosure required of him under paragraph 4 of the Settlement Agreement and to enforce his outstanding obligations for the transfer of assets to the BIA. The assets the transfer of which was sought by the summons included the New York Palace Hotel, the Bel-Air Hotel, 3-5 Place Vendome in Paris, St John's Lodge in Regent's Park and the assets comprised in the PT4200 trust. The relief sought was granted by Saied CJ in a judgment delivered on 2 November 2005 and upheld by the Court of Appeal in a judgment delivered on 20 May 2006.
9. In the meantime events which have figured prominently in the arguments addressed to the Board took place. On 10 May 2005 Brunei solicitors acting for the Government and Bandone, which pursuant to the transfers on 13 May 2000 had become the legal owner of Prince Jefri's Brunei properties, served notices on Prince Jefri calling on him to vacate within 28 days six of the transferred properties, all in Jerudong, occupation of which, said the notices, had been retained by him or members of his family. The six properties were Assana and Nadaa, Arrifa and Lake House, and two others. Prince Jefri's response, by a letter of 20 May 2005 from Simmons & Simmons (who had replaced Lovells as his solicitors) was to claim that the six properties were Excluded Assets as defined in the Settlement Agreement. The response by Freshfields to this letter and subsequent correspondence made clear that there was a dispute as whether the six properties, or some of them and, if so, which, were Excluded Assets. Nonetheless the properties were vacated under protest and possession of them was taken and is still retained by Bandone. Freshfields made clear in the correspondence that the Government and the BIA accepted that Prince Jefri was entitled to be provided with an official and a private residence in Brunei, and were willing to honour that obligation, but did not accept that Prince Jefri was entitled to treat the six properties, or any of them, as constituting any such residence. Prince Jefri, for his part, made clear that he regarded Assana and its associated properties as his official residence and Arrifa and its associated properties as his private residence. Simmons & Simmons by their letter of 11 July 2005 said that the taking of possession of these properties by Bandone was evidence of BIA's "intention not to be bound by the terms of the Settlement Agreement" and by their letter of 14 July 2005 said that Prince Jefri "accepts this breach as a repudiation of the Settlement Agreement by your clients".

The issues to be decided

10. The issues that arise under the so-called "substantive issue" and that the Board must now decide are both procedural and substantive in character. There is an overriding procedural issue, namely, how, procedurally, the court should deal with this application, made under the liberty to apply, to enforce the Settlement Agreement. The case put forward by the Government and the BIA is very simple. The Settlement Agreement to which Prince Jefri bound himself on 12 May 2000 placed him under a number of obligations both of disclosure and to transfer assets to the BIA that, it is accepted, he has not performed. The Consent Order of 13 May 2000 gave either party liberty to apply "as to the carrying of the terms of the Settlement Agreement into effect" and the Government and the BIA have so applied. They have done so by summons supported by affidavit. Counsel for Prince Jefri have drawn an analogy with the procedure whereby a plaintiff who believes there to be no reasonably arguable answer to his claim may apply by summons for a summary judgment. Summary judgment procedure is very well known in England and Wales and has its counterpart in most jurisdictions, including Brunei. Their Lordships consider that the analogy between that procedure and the procedure adopted in the present case is apt. As with summary judgment procedure, its open to a judge before whom, pursuant to a liberty to apply, an application to enforce a consent order is made either to take the view that there is no arguable defence to the application and to make a summary order as asked, or to take the view that the respondent does have an arguable defence and that the issue is not suitable to be dealt with without pleadings, discovery, cross examination of witnesses and the other paraphernalia of trial – in which case the judge will either dismiss the application or give the necessary directions for the trial of the issue. Counsel for Prince Jefri contends that the substantive defences that have been raised in answer to the Government and the BIA's simple claim to enforce the Settlement Agreement are such that the issues cannot fairly or properly be resolved by a summary procedure and that either the application should have been dismissed or that directions for a trial should have been given. Whether or not that contention should be accepted depends, of course, on the apparent substance of the substantive defences that are relied on by Prince Jefri. There are several and their Lordships must assess their substance before returning to the question whether the courts below were correct in concluding that nothing of sufficient substance to constitute a reasonably arguable defence to the claim for a summary order for the enforcement of the Settlement Agreement had been shown.

The Lifestyle Defence

11. Prince Jefri contends that an oral agreement, collateral to the Settlement Agreement, had been reached between himself and the Sultan entitling him to retain in his ownership six very valuable assets in order to enable him to continue to fund a suitable lifestyle for himself and his family. So, the contention goes, he should not be ordered to transfer those six assets to the BIA notwithstanding that the Settlement Agreement requires him to do so. The six assets consist of five properties, each situated outside Brunei, and the PT4200 trust funds. The five properties are the New York Palace Hotel, the Bel-Air Hotel, Cavell House, 3-5 Place Vendome and St John's Lodge. It is convenient to refer to the alleged agreement as the "six assets agreement". There seems to be no doubt but that at several of the meetings between the Sultan and Prince Jefri, both before and after the signing of the Settlement Agreement, there were discussions between them about how Prince Jefri would be able to fund a suitable lifestyle for himself and his family once he had transferred to the BIA all the assets that he had acquired for himself by means of funds derived from the BIA. It appears from the records of these meetings that the Sultan had some sympathy with Prince Jefri's lifestyle concerns and indicated on a number of occasions that once all the BIA derived assets had been handed back to the BIA arrangements to meet these concerns would be made. But nothing in the documentary records suggests that a firm agreement had been reached or, in particular, that the Sultan had ever agreed to Prince Jefri retaining the six assets.
12. Indeed the documentary evidence well justifies describing the contention that a six assets agreement had been reached as simply incredible. Thus:

(i) A Declaration of Commitment and Intent, a unilateral declaration dated 14 November 1998 signed by Prince Jefri and expressed to "set out the commitment" given by him to the Sultan, said that Prince Jefri would immediately procure the transfer to the BIA of, inter alia, the New York Palace Hotel and the Bel-Air Hotel, and that Prince Jefri was "committed to transferring the remainder of his assets". The final paragraph of the Declaration said that –

"At an appropriate stage, assets will be given and financial provision will be made for [Prince Jefri] and his family in such amounts and manner as His Majesty may command".

There was plainly no six assets agreement at this stage.

(ii) A Disclosure Agreement dated 2 March 1999 and signed by Prince Jefri said that he "irrevocably" agreed to transfer, inter alia, the two hotels to the BIA. His intention to do so was expressly confirmed in a letter from Lovells to Freshfields on 12 July 1999.

(iii) A second Declaration of Commitment and Intent (again made unilaterally by Prince Jefri) dated 16 July 1999 made no reference to any "lifestyle" arrangements or to a six assets agreement but said that Prince Jefri's assets would be sold and, after taking account of his liabilities, the surplus would be transferred to the BIA.

(iv) A Heads of Agreement document, a precursor of the Settlement Agreement dated 31 October 1999, was signed by Prince Jefri. This too contained no reference to a six assets agreement but said that all Prince Jefri's assets would be transferred to the BIA other than any assets which the Sultan decided Prince Jefri might retain. The two hotels were expressly mentioned as assets to be transferred. So on 31 October 1999 there still was no six assets agreement.

(v) A note of a meeting between the Sultan and Prince Jefri on 14 February 2000 was taken by Pengiran Rakawi, Prince Jefri's private and confidential secretary. The note records that "With regard to lifestyle arrangement and Excluded Assets [Prince Jefri] said it would be between him and His Majesty. His Majesty agreed that the lifestyle arrangement to be dealt directly with him".

(vi) In a letter written by Prince Jefri to the Sultan on 2 March 2000, shortly after the litigation against Prince Jefri had been instituted, he expressed sadness that the litigation had been commenced, referred to his offer to transfer "the overseas assets, such as No 45 Park Lane, Asprey, New York Palace and Hotel Bel-Air" and said:

"From November 1988 till almost July 1999, negotiation has been carried out with the Government on the basis that the assets would be transferred to the Government and my personal liabilities would be protected to some extent. It was also understood that I would be allowed to continue in my lifestyle as moderately."

(vii) The Settlement Agreement of 12 May 2000 required Prince Jefri to transfer all his "Assets" other that the "Excluded Assets". "Assets" was defined as "all assets of [Prince Jefri] within paragraphs 1.1 and 1.2 of Schedule 7". Each of the six assets was specified in those paragraphs.

13. Prince Jefri in his affidavit evidence, besides asserting that the Sultan had agreed to his retention of the six assets, sought to explain why no mention of this had been made in the Settlement Agreement. He said "HM was keen that the lifestyle agreement should not be evidenced in writing and that the details of it should not be revealed to the BIA or any other party". This explanation is simply ridiculous. The Settlement Agreement to which the BIA was a party required Prince Jefri to transfer the six assets to the BIA. Of course the BIA would need to know if it were the case that by reason of some collateral agreement between the Sultan and Prince Jefri the terms of the Settlement Agreement could not be taken at their face value. In any event the attempted explanation of why the alleged six assets agreement was not to be made public does not explain why there was an express mention in the Settlement Agreement of each of the six assets as an asset to be transferred by Prince Jefri to the BIA. The Settlement Agreement had been prepared after many months of negotiations between parties represented by top-ranking lawyers.
14. The inescapable conclusion in their Lordships' opinion, in agreement with the conclusion reached by the Chief Justice and by the Court of Appeal, is that as at the date the Settlement Agreement was signed the six assets agreement contended for had no substance whatever.
15. There is, moreover, a technical legal reason why a defence based on the alleged six assets agreement is bound to fail. Sections 91 and 92 of Brunei's Evidence Act provide that when the terms of a contract have been reduced to writing

"no evidence of any oral agreement or statement shall be admitted as between the parties to any such [contract] for the purpose of contradicting, varying, adding to, or subtracting from its terms…"

The provision is subject to a number of provisos none of which is applicable to the alleged six assets agreement. The Settlement Agreement is an agreement in writing that requires Prince Jefri to transfer the six assets to the BIA. The alleged oral agreement purports to allow him to retain them and thereby contradicts, or perhaps subtracts from, the terms of the Settlement Agreement. Evidence of that oral agreement is, in their Lordships' opinion, made inadmissible by sections 91 and 92 of the Evidence Act.

16. Counsel for Prince Jefri have sought to resurrect the defence based on the alleged six assets agreement and present it alternatively as a defence based on misrepresentation. It is said that the Sultan impliedly represented to Prince Jefri, in the course of their pre-Settlement Agreement discussions, that he could retain the six assets and that in reliance on that representation Prince Jefri signed the Settlement Agreement. This contention, in their Lordships' opinion, founders on the same rock of factual incredibility as sunk the contention based on the alleged six assets agreement. Representations to Prince Jefri about assets he could retain that had been made to him before the Settlement Agreement had been drawn up, approved and signed must have been intended to limit the assets that he would be required by the Settlement Agreement to transfer. But the Settlement Agreement required him to transfer the six assets and no contention has ever been made by Prince Jefri that the express mention in the Settlement Agreement of the six assets had been a mistake or that he would not have signed the Agreement if he had been aware of that express mention. He has never contended that the Settlement Agreement ought to be rectified. Moreover, in order for a representation to give rise to an estoppel it must be clear and unequivocal. If it is not clear and unequivocal it does not matter that the representee may have misconstrued it and relied on it (see Woodhouse Ltd v Nigerian Produce Ltd [1972] AC 741 at 755). Nothing said by the Sultan about the six assets comes close to satisfying this requirement. Their Lordships regard a defence based on a six assets representation as being just as devoid of weight and just as hopeless as a defence based on a six assets agreement.
17. A third variation of the lifestyle defence is based on an alleged agreement or representation by the Sultan, made after the signing of the Settlement Agreement, that Prince Jefri could retain his ownership of four of the six assets, namely, St John's Lodge, Place Vendome, the New York Palace Hotel and the PT4200 trust fund. In paragraph 45 of his first affidavit Prince Jefri appeared to be putting forward a case for a four asset agreement. He said that after the signing of the Settlement Agreement

"The lifestyle agreement was re-negotiated to include the following assets…"

He then listed the four assets. But in paragraph 82 of his second affidavit Prince Jefri accepted that

"…no lifestyle agreement was made following the execution of the Settlement Agreement"

and in his submissions to the Board counsel for Prince Jefri has not contended for a four assets agreement but has relied on alleged representations that Prince Jefri could retain the four assets for his lifestyle purposes.

18. But, as with the defences relating to the six assets, Prince Jefri's reliance on representations relating to the four assets as constituting a clear and unequivocal commitment by the Sultan is inconsistent with the contemporary documents. Records of meetings with the Sultan on 13 July 2002, 2 August 2002 and 15 November 2002 show a continued willingness by the Sultan to consider Prince Jefri's lifestyle needs but contain no reference to the four specific assets. The record of a meeting on 2 December 2002 comes fairly close to showing a firm commitment but ends with the Sultan suggesting that his and Prince Jefri's advisers should "…see him very quickly and present the proposal on the lifestyle agreement". At the next meeting, on 31 December 2002, the record shows that the proposal was that the four assets would be held in trust for Prince Jefri with the trust continuing until 21 years after his death, but ends by recording that

"His Majesty agreed in principle on the agreement and he would sign the agreement after [Prince Jefri] had transferred all the assets".

And at a meeting on 3 June 2003 the Sultan confirmed that "…all assets are to be transferred first to the BIA then he would sign the documents". The records of a number of subsequent meetings show that the Sultan's position that Prince Jefri was to transfer his assets, including the four assets in question, to the BIA, as he had contracted to do under the Settlement Agreement, before any arrangements for his lifestyle needs would be put in place remained unchanged.

19. Prince Jefri's affidavit evidence contends, inconsistently when compared with the contemporary records of the various meetings, that firm representations that he could retain the four assets had been made by the Sultan – and the Court of Appeal thought there to be a triable issue as to that. But, as counsel for the Government and the BIA has pointed out, the alleged representation by the Sultan regarding the four assets could not assist Prince Jefri unless he could show that he had acted in reliance on the representation. Prince Jefri's affidavit evidence does not allege that he did so act and there is nothing in the other evidence before the Board to suggest that he did. When the case was before the Chief Justice the then draft of the Defence and Counterclaim on which Prince Jefri proposed to rely was amended to plead that at the 2002 and 2003 meetings the Sultan had "declared and pronounced that he would permit Prince Jefri to retain…" the four assets (para 149) and that "in reliance upon the Declarations Prince Jefri continued to transfer his assets to the BIA" (para 150). But no detail of what was transferred or when is given.
20. In his submissions counsel for Prince Jefri has presented the four assets defence as an estoppel and prays in aid section 115 of Brunei's Evidence Act. But both common law and section 115 require a person claiming the benefit of a promissory estoppel to have acted in some manner different from the way in which he would have acted if the representation had not been made. If the alleged four asset representation was ever made it was unequivocally withdrawn when the 11 October 2004 summons was issued and during the whole of the period between 12 May 2000 and 11 October 2004 Prince Jefri was under an unconditional contractual obligation to transfer to the BIA all his assets other than Excluded Assets. Whatever assets Prince Jefri did transfer over that period were assets he had bound himself by contract to transfer. So, on what basis could it be said that but for the alleged four asset representation he would not have transferred them? If there had been some issue raised by Prince Jefri regarding the enforceability of his obligation to comply with the Settlement Agreement, a promise by the Sultan to allow him to retain the four assets on which Prince Jefri had then acted by transferring to the BIA assets that he would otherwise not have transferred might well have given rise to an arguable promissory estoppel. But no suggestion had been made by Prince Jefri, or by any of his advisors, in the period preceding 11 October 2004 that he was not legally obliged to make such transfers as he did make.
21. In their Lordships' opinion, therefore, the defence based on the alleged four assets representation suffers from four defects. First, it is not consistent with the contemporary documents. Second, there is no evidence that Prince Jefri acted in reliance on the representation and no evidence from which an inference that he did so can be drawn. Third, the statement in his draft Defence and Counterclaim that he had transferred assets to the BIA in reliance on the representations does not satisfy the requirement that the acts done in reliance must be acts that he would not otherwise have done. Fourthly, in order for acts that Prince Jefri was under a contractual obligation to do, such as transfers of assets to the BIA, to satisfy the requirement, it would be necessary for there to be at least some evidence that but for the representation he would not have made complied with his contractual obligation. There is none. In their Lordships' opinion, the discharge of a clearly enforceable contractual obligation should not be accepted as a change of position in reliance on a representation so as to enable a promissory estoppel to be established unless there is clear evidence that but for the representation the person concerned would not have complied with his contractual obligation. Their Lordships for these reasons regard Prince Jefri's defence based on the four assets representation as being devoid of weight.

The Confidentiality of Prince Jefri's Statement of Responsibility

22. Paragraph 7 of the Settlement Agreement required Prince Jefri to sign a statement of responsibility (see para 5 (vii) above) and Prince Jefri did so. In paragraph 40 of his first affidavit Prince Jefri has said this:

"His Majesty also commanded me to sign a 'Statement of Responsibility' which he told me was only for himself and would not be released to any other person. In accordance with his command I duly signed the Statement of Responsibility, on the condition that it remained confidential and exclusive to His Majesty. The Statement of Responsibility is contained in Schedule 5 of the Settlement Agreement…"

Prince Jefri refers to the Sultan's command as being the reason why he signed the statement but at the time he signed he was under an unconditional contractual obligation to do so imposed by paragraph 7 of the Settlement Agreement. The Settlement Agreement itself provided for the confidentiality of its terms subject, however, to disclosure "…by the Government to the extent that the Government considers it appropriate to do so" (para 9.1(4)). In paragraph 61 of the same affidavit Prince Jefri said that when he signed the statement "it went into a sealed envelope and I was assured it was to be given to His Majesty and not disclosed publicly". But Mr Richard Chalk of Freshfields, in his affidavit sworn on 7 February 2005, pointed out (in para 66) that two copies of the Statement of Responsibility had been signed by Prince Jefri, one of which was retained, and was still held by the Government and the BIA and the other of which was retained by Prince Jefri. This evidence has not been disputed by Prince Jefri.

23. The Government and the BIA accept that there has been some disclosure to third parties of Prince Jefri's acceptance of responsibility as set out in the Statement. The extent to which this has been done and the reason for it is explained by Mr Chalk in his affidavit sworn on 7 February 2005, paragraphs 68 to 70. Shortly stated, the disclosure has been to persons or companies believed to have received from Prince Jefri gifts of, or derived from, BIA funds and to explain the reason for requests to these persons or companies for the return of the gifts, or the proceeds of the gifts, to the BIA. Disclosure was also made to the liquidators of the Amedeo Development Corp. ("ADC") in the course of negotiations regarding the claims made by the liquidators against Prince Jefri and others.
24. It seems to their Lordships clear that these disclosures were consistent with the power reserved to the Government and the BIA by paragraph 9.1(4) of the Settlement Agreement and the contrary has not been contended for by counsel for Prince Jefri. Instead Prince Jefri relies on an oral agreement alleged to have been made between himself and the Sultan. The disclosures are said to have been in breach of that oral agreement and, accordingly, repudiatory of the Settlement Agreement. The Court of Appeal concluded that these contentions did not "raise a sustainable defence" (p.23 of the Statement of Reasons). Their Lordships agree.
25. First, the contention that this oral agreement about confidentiality was made can fairly be described as incredible. Prince Jefri has said that he signed the Statement of Responsibility to save the Sultan from embarrassment in case the misuse of BIA funds should become public knowledge. But unless the Statement could be made publicly known that purpose could not be achieved. Second, the Heads of Agreement signed by Prince Jefri on 31 October 1999 said that the terms of the Settlement Agreement would be "strictly confidential save as required by law or to the extent that HMG considers it appropriate to disclose them". Third, a letter from the Government dated 16 December 1999 made expressly clear that the Government and the BIA might wish to use the Statement "in connection with any legal proceedings…in relation to the funds withdrawn from the BIA, or for the purpose of seeking a settlement with others". And, fourthly, the oral agreement regarding confidentiality allegedly made by the Sultan and Prince Jefri founders on the rock of sections 91 and 92 of the Evidence Act (see para 15 above). Evidence of this oral agreement, contradicting, adding to or varying the terms of the Settlement Agreement is inadmissible.
26. As with the six assets defence, the breach of confidentiality defence has been based alternatively on a representation by the Sultan that the Statement of Responsibility would remain confidential. This, too, is a hopeless defence and for the same reasons, namely, factual and sections 91 and 92 of the Evidence Act.

The Discretionary Trust and the Record of Assets

27. Prince Jefri complains of two breaches of the Settlement Agreement by the Government and the BIA which, it is contended, taken together are repudiatory in character. It is accepted by the Government and the BIA that the Discretionary Trust, from the funds of which Prince Jefri's Personal Liabilities were to be discharged, has not been established. The reason for this, given by Mr Chalk in his affidavit of 11 October 2004 (para 35) was that the Government and the BIA had not been able to reach an agreement with Prince Jefri's advisers on the terms of the Trust. He said that, as an alternative, Prince Jefri had been permitted to discharge Personal Liabilities out of assets that he would otherwise under the Settlement Agreement have been obliged to transfer to the BIA and that no prejudice had been caused to Prince Jefri by the absence of the Discretionary Trust. Prince Jefri's affidavit in response, sworn on 22 July 2005, did not identify any liability falling within Personal Liabilities as defined in the Settlement Agreement that he himself had had to discharge. The failure by the Government and the BIA to set up the Discretionary Trust is, their Lordships agree, a failure to comply with a requirement of the Settlement Agreement but it cannot be described as a repudiatory breach of contract.
28. As to the failure of the Government and the BIA to provide Prince Jefri with the records and valuations referred to in paragraph 5.7 of the Settlement Agreement, here, too, it is accepted that there has been a failure by the Government and the BIA to comply with a requirement of the Settlement Agreement. But this failure, too, cannot be described as repudiatory. The Court of Appeal so concluded and their Lordships agree. It is not suggested that the failure to comply with paragraph 5.7 has caused Prince Jefri any damage and his appropriate remedy would be, and is, to apply to the court, under the liberty to apply in the Consent Order, for an order that the records etc. be provided to him. These breaches do not provide any reason why Prince Jefri should not comply with his outstanding obligations under the Settlement Agreement.

The Brunei Properties

29. The last of the defences put forward on behalf of Prince Jefri that relate to breaches or alleged breaches by the Government and the BIA of the Settlement Agreement concerns the Brunei Properties, Assana and Nadaa and Arrifa and Lake House, possession of which was taken by the Government and the BIA. This taking of possession is said by Prince Jefri to have been a breach by the Government and the BIA of the Settlement Agreement and one that was repudiatory in character. He, through his solicitors Simmons & Simmons, has purported to accept that repudiation as determining the Settlement Agreement and relieving him of his outstanding obligations thereunder.
30. The language of the Settlement Agreement, so far as the Excluded Assets are concerned, does no credit to those responsible for the drafting. Paragraph 1 is a definition paragraph. "Excluded Assets" is defined as "any of the following assets of [Prince Jefri] and his family…" and the succeeding five sub-paragraphs include "(c) one official residence in Brunei to be maintained free of charge and one further residence in Brunei to be maintained at [Prince Jefri's] expense, in accordance with the usual arrangements for Wazirs". So although paragraph 1 is a definition paragraph, sub-paragraph (c) purports to prescribe maintenance arrangements for Prince Jefri's official residence and private residence respectively. But, subject to that oddity, the definition tells one nothing about the substantive provisions to apply to the Excluded Assets. The only substantive provision that applies to the Excluded Assets – and it applies in a negative sense – is to be found in paragraph 5.1:

"[Prince Jefri] and his family shall transfer to or vest in the BIA the entirety of their interests in each of the Assets except the Excluded Assets…"

One would assume from sub-paragraph (c) of the definition of Excluded Assets and from this reference to Excluded Assets in paragraph 5.1 that Prince Jefri owned an official residence and a private residence in Brunei that did not have to be transferred to the BIA. But the "Assets", as defined in paragraph 1, included Assana and Nadaa and Arrifa and Lake House, and immediately after signing the Settlement Agreement Prince Jefri transferred them, together with the other Brunei properties standing in his name, to the BIA in purported pursuance of his obligation to do so under paragraph 5.1. Prince Jefri thereafter for some five years remained in occupation of the two sets of properties and says that he did so because Assana and Nadaa were, together, his official residence and Arrifa and Lake House were, together, his private residence. But, if that were so, why did he transfer them to the BIA? Was the transfer simply a mistake? So there is an issue to be decided, namely, whether on 12 May 2000, Assana, either with Nadaa or by itself, was Prince Jefri's official residence in Brunei and whether, on that date, Arrifa, either with Lake House or by itself, was Prince Jefri's private residence in Brunei for the purposes of the Settlement Agreement. That question has not been addressed and cannot be decided in the present proceedings. The requisite evidence is absent. The question, however, that can be decided in the present proceedings is whether the action taken by the BIA in 2005 regarding these properties constitutes arguably a repudiatory breach by the BIA of any of its obligations under the Settlement Agreement. That question must be considered both on the footing that the properties did, on 12 May 2000, constitute Prince Jefri's official and private residences and on the alternative footing that they did not.

31. If the properties did on 12 May 2000 constitute Prince Jefri's official and private residences for the purposes of the Settlement Agreement then it seems to their Lordships clear that the transfer of them to the BIA on 13 May 2000 must have been a mistake. They would have been Excluded Assets and not liable to be transferred pursuant to paragraph 5.1. The mistake, if there was one, would plainly have been a mutual mistake, Prince Jefri's mistake in transferring them and the BIA's mistake in accepting the transfer. Prince Jefri would have, subject to any time limitation difficulties, legal remedies to reverse the mistake and to recover his assets; but these are not remedies that have been sought in this litigation. Nor would the BIA's mistaken acceptance of the transfer of the properties by Prince Jefri have constituted a breach of any of its obligations under the Settlement Agreement. If pursuant to a believed but non-existent contractual obligation A transfers an asset to B and B, on the mistake being pointed out, refuses to return the asset to A, A's remedy is a remedy in restitution, not a remedy for a breach of contract. So here, on the mistake hypothesis.
32. If, on the other hand, the properties were not Prince Jefri's official and private residences for the purposes of the Settlement Agreement then the transfer of them to the BIA on 13 May 2000 was not a mistake but was in pursuance of Prince Jefri's obligations under paragraph 5.1. The BIA allowed Prince Jefri to remain in occupation of the properties until, in 2005, the notices to vacate were served. Of what contractual obligation under the Settlement Agreement could the service of those notices be said to constitute a breach? The Settlement Agreement does not in express terms place any obligation on either the Government or the BIA to provide Prince Jefri with either an official residence or a private residence. The terms of the Settlement Agreement seem to have assumed that Prince Jefri already owned such residences, as indeed, Prince Jefri says that he did. In any event, the Government and the BIA have made clear their willingness to provide Prince Jefri with a suitable official residence and private residence in Brunei. On the hypothesis that the transfers of the properties to the BIA were required by paragraph 5.1 and were not a mistake, their Lordships think, without deciding, that it would be reasonably arguable that an obligation on the BIA to so provide could be implied from the terms of the Settlement Agreement. But then it must follow that on 13 May 2000 the residences were not, for the purposes of the Settlement Agreement, Prince Jefri's official and private residences. In which case on what basis could the service of the notices and the taking of possession of them in 2005 be said to be a breach of any obligation of the BIA under the Settlement Agreement?
33. If it is right that the transfer of the properties to the BIA on 13 May 2000 was not a mistake, i.e. that the properties were not at that time Excluded Assets under paragraph 1.1(c), nonetheless it is common ground that for five years or so the BIA acquiesced in Prince Jefri's continued occupation of the properties and, it may be, can thereby be taken to have impliedly made available Assana, with or without Nadaa, as his official residence and Arrifa, with or without Lake House, as his private residence. If that is a correct analysis then the making of those properties available to Prince Jefri would have been a discharge by the BIA of any implied obligation under the Settlement Agreement to provide him with an official residence and a private residence. The question would then arise whether, having provided these specific properties as Prince Jefri's official and private residences it was open to the BIA in 2005 to revoke that provision, require Prince Jefri to vacate the properties and offer (as the BIA have done) to provide him with some other suitable properties as his official and private residences. Whether it was or was not within the power of the BIA to do so would depend, first, upon whether the BIA were indeed under an implied contractual obligation to provide these residences and, second, if they were, whether the breadth of the implied obligation was such as to allow them to revoke a current provision and substitute a different provision. If the BIA did have such power (which their Lordships think unlikely), then their service of the notices to vacate would have been something they were entitled to do. If the BIA did not have such power, their assertion of such power by the service of the notices to vacate would not have been a breach of any contractual obligation under the Settlement Agreement, but simply something they had no power or right to do.
34. Accordingly, although the service by the BIA of the notices to vacate the two sets of properties in Brunei and the taking by the BIA of possession of the properties raises a number of difficult questions and may very well entitle Prince Jefri to remedies, those actions cannot, in their Lordships' opinion, whatever the answers to those questions may be, be represented as breaches of any contractual obligations of the Government or the BIA under the Settlement Agreement and, therefore, cannot be relied on by Prince Jefri as justifying his refusal to comply with his contractual obligations under the Settlement Agreement.

Undue Influence

35. Prince Jefri defends the application by the Government and the BIA to enforce the Settlement Agreement on the ground not only of the alleged repudiatory breaches by the Government and the BIA but also on the ground that his consent to the Settlement Agreement had been induced by undue influence. He relies on the domination of his will by his brother, the Sultan, a domination attributable, it is said, not to any conscious wrongdoing or attempt to dominate on the part of the Sultan, but to the Sultan's position as the ruler with ultimate power and authority in Brunei and to Prince Jefri's position as a member of the Sultan's family and a subject whose duty is was "to obey any commands of His Majesty" (para 43 of Prince Jefri's second affidavit).
36. The legal framework of an undue influence defence under the law of Brunei is to be found in section 16 of the Contracts Act which provides that

"(1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another-

(a) where he holds a real or apparent authority over the other….

….

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in the position to dominate the will of the other…"

37. Counsel for Prince Jefri identified three elements to the defence of undue influence, namely – (i) whether one of the parties was in a position to dominate the will of the other party; (ii) whether that position was used; (iii) whether the agreement made was to the unfair advantage of the party in a position to exert undue influence. Their Lordships think this is a helpful analysis and will consider each of the elements in turn.
38. As to the first element, the Court of Appeal held (page 11) that

"there can be no doubt that as ruler with ultimate power and authority His Majesty was in a position to dominate the will of another as set out in subsection (1)"

but, as to the second element that

"there is nothing in the evidence of Prince Jefri which shows that His Majesty used that position to obtain an unfair advantage over him".

Their Lordships have some doubt about the Court of Appeal's conclusion on the first element. A ruler with ultimate power and authority, which it is common ground the Sultan enjoyed, cannot expect to dominate the will of all his subjects on all occasions and the right question is whether the Sultan was in a position to dominate the will of Prince Jefri in relation to the proposed Settlement Agreement. As to that, their Lordships think it to be clear that he was not. Prince Jefri was not just any subject. He was the Sultan's brother, a Wazir of Brunei, with access to and advice throughout from top–quality barristers and solicitors. According to Prince Jefri's evidence he was advised also by Lord Donaldson of Lymington, a former Master of the Rolls, which their Lordships regard as somewhat surprising. It is impossible to read the records of the meetings between the Sultan and Prince Jefri, sometimes with and sometimes without their Bruneian advisers, and to read the correspondence between Freshfields for the Government and the BIA and first Lovells and later Simmons & Simmons for Prince Jefri, without concluding that the Sultan was not in a position to dominate the will of Prince Jefri. This documentary evidence demonstrates that Prince Jefri did not have a knee-jerk reaction to obey all commands or comply with all expressed wishes of the Sultan. For example, the Sultan made repeated requests for Prince Jefri to transfer the two USA hotels to the BIA, but Prince Jefri did not comply. It is not, in their Lordships' opinion, reasonably arguable that the Sultan was in a position to dominate the will of Prince Jefri. As to the second element their Lordships would go further than the Court of Appeal. There is nothing in the totality of the evidence that provided a reasonably arguable case that the Sultan procured the assent by Prince Jefri to the Settlement Agreement by dominating his, Prince Jefri's, will.

39. Counsel for Prince Jefri has submitted that the Sultan should have given evidence denying that he had used his position to induce Prince Jefri to assent to the Settlement Agreement. This was an unrealistic submission. How was the Sultan to know what effect his position as the ruler of Brunei might have upon Prince Jefri's will? It is not suggested that the Sultan commanded Prince Jefri to sign the Settlement Agreement. And at the time the Agreement was signed Prince Jefri's legal advisers were engaged in legal challenges before the Courts of Brunei in respect of various interlocutory proceedings in the action that was then still on foot. The picture sought to be painted of Prince Jefri as a victim whose will was overridden by a dominant monarch seems to their Lordships to be obviously false.
40. Nor, in their Lordships' opinion, is there any arguable case that the Settlement Agreement gave the Government and the BIA an "unfair advantage". In May 2000 Prince Jefri was facing claims in excess of US$15 billion for misappropriation and breach of fiduciary duty. The Settlement Agreement relieved him of these claims, relieved him from the possibility of criminal prosecution and provided for the discharge of his very extensive Personal Liabilities. In return Prince Jefri had to disclose what had become of the BIA funds and return to the BIA the assets acquired with those funds. The proposition that this represented an "unfair advantage" to the Government and the BIA is unarguable.
41. Their Lordships therefore, in complete agreement with the Court of Appeal, regard the defence based on alleged undue influence, a defence not raised before Saied CJ, as devoid of any weight.

Mutuality

42. Counsel for Prince Jefri have submitted that as a general rule specific performance of a contract ought not to be granted to a person who either cannot be compelled to perform his own obligations under that contract or who is not willing to perform, or is already in breach of, his own obligations under that contract. They submit the Government and the BIA could not be compelled by court order to perform their obligations under the Settlement Agreement and that therefore Prince Jefri ought not to be ordered to perform his. The submission engages Article 84 B(2) of the Brunei Constitution which says that

"Any person acting on behalf of, or under the authority of, His Majesty the Sultan and Yang Di-Pertuan shall not be liable to any proceedings whatsoever in any court in respect of anything done or omitted to have been done by him in his official capacity."

It is certainly arguable that, so far as the Settlement Agreement is concerned, the Government and the BIA have been acting on behalf and under the authority of the Sultan, but the Privy Council has no jurisdiction to consider any "question involving the meaning, interpretation, construction or effect of any of the provisions of the Constitution of [Brunei] Brunei" (see para 2 (3) Brunei Appeals Order 1989). It appears therefore, that it would not be open to the Board to allow Prince Jefri's appeal on the basis of a lack of mutuality derived from the effect of Article 84 B(2) of the Constitution. And subject to any effect of Article 84 B(2), which the Board is not entitled to consider, and to one other point that their Lordships will mention, their Lordships can see no reason why specific relief for the enforcement of the contractual obligations of the Government and the BIA under the Settlement Agreement should not be available to Prince Jefri. Moreover, per Buckley LJ in Price v Strange [1978] Ch 337 at 369 "… considerations of mutuality go to discretion, not to jurisdiction" and their Lordships can see nothing in Prince Jefri's mutuality argument that impeaches the conclusion of Saied CJ, concurred in by the Court of Appeal, that an order for specific performance of Prince Jefri's outstanding obligations under the Settlement Agreement ought to be made.

43. The one other point referred to above relates to the joint and several covenant by the Government and the BIA, in paragraph 2.1 of the Settlement Agreement, not to bring criminal proceedings against Prince Jefri arising out of or in any way in connection with his use of BIA funds prior to the date of the Agreement. Their Lordships were not addressed on this point and it is not clear whether an agreement by a public authority not to institute criminal proceedings for some alleged criminal wrongdoing could be enforced as a civil law contract or whether a judge sitting in a civil court could on breach of contract grounds, grant an injunction to restrain a prosecuting authority from instituting a prosecution. On the other hand, if such an agreement had been made by parties constituting, or representing, the prosecuting authority and a prosecution in breach of the terms of that agreement had been instituted, their Lordships would expect an application in a criminal court for a stay of the prosecution on the ground that the prosecution would be, in the circumstances, an abuse of power and unfair, to be likely to succeed. That being so, their Lordships do not think that the absence of civil law compellability in relation to that part of the Settlement Agreement is any reason for denying compellability in relation to the other obligations imposed by the Settlement Agreement on the Government and the BIA.

Is this a fit case for specific enforcement by summary procedure?

44. It has been urged upon the Board by counsel for Prince Jefri that the facts of this case are highly complex. Indeed they are, as the length of this judgment testifies. It has been pointed out that Prince Jefri has supplied sworn evidence about what passed between himself and the Sultan at their many meetings, both before and after the Settlement Agreement had been signed, at which there had been discussions relating to the settlement of the serious claims made against him and, in particular, about his lifestyle needs, that there has been no cross–examination of Prince Jefri and that no sworn evidence disputing his sworn testimony has been offered by the Sultan. It is urged that in these circumstances it would be unfair and contrary to principle to deny Prince Jefri the opportunity to persuade a judge at trial that his, Prince Jefri's, version of events was true. Their Lordships are not in disagreement with counsel's submissions as to how a summary judgment application should be approached. They agree that the respondent to such an application is entitled to the benefit of any relevant doubt about the true facts. They agree that difficult questions of law, and especially if they are questions that are fact–sensitive, are not usually suitable to be dealt with on a summary judgment application. But the complications of the story that has been unfolded in the evidence are, in their Lordships' judgment, save in relation to the Brunei properties and Excluded Assets, contrived complications. The Government and the BIA case is clear and simple. Prince Jefri settled the claims made against him by signing the Settlement Agreement under which he was to restore the assets that he was said to have misappropriated. He has not carried out the obligations he accepted under that Agreement. None of this is, or can be, disputed. The case is a simple one. The complications are introduced by Prince Jefri's search for a means of extricating himself from the obligations he has accepted under the Settlement Agreement and, after careful examination of all the evidence, these complications fall away. The lifestyle defences and the confidentiality defences, based as they are on alleged oral discussions with the Sultan, are factually implausible and legally unsustainable. The problems about the Brunei properties are real but evidence no breach by the BIA of any of its obligations under the Settlement Agreement, let alone any repudiatory breach. The undue influence defence is too implausible to warrant serious attention. The minor breaches regarding the BIA's failure to establish the Discretionary Trust and to supply records of transfers, neither of which breaches have caused him any prejudice, cannot be categorised as repudiatory.
45. Their Lordships having given the case for Prince Jefri their careful consideration have concluded, in agreement with the Chief Justice and the Court of Appeal, that he has no reasonably arguable defence to the claim to enforce the Settlement Agreement, that this was a proper case for summary judgment and that the appeal should be dismissed with costs. Their Lordships will report to His Majesty accordingly.

-----------------------------

Concurring opinion of Lord Mance

46. I have had the benefit of reading in draft the opinion of the Board prepared by Lord Scott of Foscote. I fully concur with the result, as well as with almost the entirety of the reasoning. There are only two points on which I have separate observations.
47. First, I wish to leave open the validity of the alternative "technical legal reason" suggested in paragraph 15 of Lord Scott's opinion. For the respondents, Mr Pascoe QC rightly conceded in the Court of Appeal that "the trouble with the parol evidence rule and the statutory enactments, is one is liable to go round in a circle with the parol evidence rule. If the court finds that all the terms of a written document – all the terms of an agreement have not been reduced to the written document, of course the court is going to let evidence in of other terms". The many well-known common law cases bear out the court's understandable reluctance to allow "whole contract" clauses to prevail over inconsistent oral agreements collaterally agreed (cf. e.g. City and Westminster Properties (1934) Ltd. v. Mudd [1959] Ch 129; Mendelssohn v. Normand Ltd. [1970] 1 QB 177; Brikom Investments Ltd. v. Carr [1979] 2 All ER 753, etc.). These provide a considerable analogy in the present statutory context. Had the Settlement Agreement been induced by a collateral agreement or misrepresentation, I find it hard to believe that ss. 91 and 92 would have prevented this being proved and relied upon.
48. There is moreover express authority at the highest level in the neighbouring common law jurisdiction of Malaysia confirming this view. In at least two cases (relied upon by the appellants in their supplemental case, paragraph 6), the Malaysian Federal Court of Civil Appeal applied the common law authorities to which I have referred and took the same view as I would under the identically worded provisions of ss. 91 and 92 of the Malaysian Evidence Act. They are Tan Swee Hoe Co. Ltd. v. Ali Hussain Bros. [1980] 2 MLJ 16 (where judgment was given by no less than Raja Aslan Shah CJ) and Tan Chong & Sons Motor Company (Sdn.) Berhad v. McKnight [1983] 1 MLJ 220. Written agreements were in these cases executed on the faith of an inconsistent collateral oral promise and representation, respectively, and ss. 91 and 92 were held to be no bar to such promise and representation being proved and relied upon. I would not wish to disagree with these authorities.
49. Secondly, on mutuality, I would not want to decide this case on the basis that it is not open to the Board to consider a point under article 84B(2) of the Brunei Constitution which might otherwise be decisive (cf paragraph 42 of Lord Scott's opinion). In fact, in the event that the Board was of the view that "a question arose involving the meaning, interpretation, construction or effect" of article 84B(2), Prince Jefri invited the Board to remit the case to the Brunei courts which would have jurisdiction to determine it (appellant's case paragraph 276). But the Court of Appeal has already ruled against Prince Jefri on the very point on which remission to it is invited: see its judgment pp. 26-27, where the Court held that BIA was a statutory corporation amenable to suit, notwithstanding Prince Jefri's reliance to the contrary on article 84B. So the invitation is self-defeating.
50. Be that as it may, it was and is, in my view, unnecessary to address the constitutional argument at any level. I consider that the issue of mutuality can and should be resolved on the basis that, if there is any want of mutuality, that goes merely to discretion and that, in circumstances where Prince Jefri has on any view obtained substantial benefits both from entering into and under the Settlement Agreement, there is no reason why Prince Jefri should not now be the subject of an order for specific performance in respect of outstanding obligations which have been clearly established against him. The Court of Appeal had little doubt that mutuality merely went to discretion (tab 19 page 27) and in my view that must be right, as the English Court of Appeal held in Price v. Strange [1978] Ch 337, 369-370.