“3A. This Agreement finally resolves and releases all claims and liabilities of any kind which may exist against [D2] in favour of the FRN (the Resolved Matters) save as expressly provided. The Resolved Matters include all civil claims, all administrative claims, all claims arising out of, derived from or associated with criminal proceedings, the claims made by the FRN in relation to security votes (London High Court, No HC01 C03260) (“the Security Votes Proceedings”), Ajaokuta (London High Court, 1999 Folio No 831), Ferrostal, vaccines, the Imo River dredging contract and other government contracts. This Agreement also resolves and releases all civil claims which [D2] has against the FRN. In entering into this Agreement neither party has relied on any representation made by or on behalf of the other party or on disclosures or duties to make disclosure by any party.”
“The FRN shall renounce any interest whatsoever whether of a legal or beneficial nature to the assets set out in Schedule 6 of this Agreement (the AB Assets). No claim of any kind at all will attach to the AB Assets and they will be held by [D2] free from any claims existing or future, direct or indirect contemplated or otherwise by the FRN or in whole or part at its behest or on its behalf or for its benefit. ”
“The settlement also provided for the transfer by [D2] of sums held in variously named accounts for the benefit of FRN and for the renouncement by FRN of any interest whatsoever in certain scheduled assets that would be held by [D2] free from any claims by FRN. Included in those scheduled assets are assets the forfeiture of which the [respondent] seeks in the US proceedings. ”
“Provide the designated US authorities with evidence obtained in Nigeria, Switzerland, the United Kingdom, Liechtenstein and Jersey demonstrating the existence of the above mentioned offences, the means used to launder their proceeds and their current location.”
“It is pertinent to note that: (1) although the Nigerian Request for Mutual Assistance addressed to the US Department of Justice under the UN Convention against Corruption stated that proceeds of crimes committed by the Abacha criminal organization have been frozen and a total exceeding US$ 1.2 billion had been recovered by the FRN following judgments or voluntary restitution, it made no mention of the fact that under the settlement with D2 he and his affiliates were permitted to retain free from any claim by the FRN the scheduled assets; and (2) the Claimant was unaware that the FRN had agreed that D2 and his affiliates could retain the scheduled assets until after these proceedings for relief under s. 25 of the 1982 Act were begun. ”
“As a short explanation as to why the UK is unable to assist, the domestic legislative framework under which external requests for an interim freezing order were dealt with until last year did not supply or extend our domestic civil limitation periods. This meant that the property acquired more than six years before the request could not be frozen. This applies to when the property was first acquired and does not include any subsequent conversions of that property. We have since changed our legislation to extend our domestic limitation periods in relation to external requests when interim freezing order. Importantly, however, we are not able to bring property where the limitation period had expired under the old provisions, backward in time under the new provisions.”
“Interim relief in England and Wales and Northern Ireland in the absence of substantive proceedings. (1) The High Court in England and Wales or Northern Ireland shall have power to grant interim relief where— (a) proceedings have been or are to be commenced in a Brussels or Lugano Contracting State or a Regulation State other than the United Kingdom or in a part of the United Kingdom other than that in which the High Court in question exercises jurisdiction; and (b) they are or will be proceedings whose subject-matter is within the scope of the Regulation as determined by Article 1 of the Regulation (whether or not the Regulation has effect in relation to the proceedings). (2) On an application for any interim relief under subsection (1) the court may refuse to grant that relief if, in the opinion of the court, the fact that the court has no jurisdiction apart from this section in relation to the subject-matter of the proceedings in question makes it inexpedient for the court to grant it. (3) Her Majesty may by Order in Council extend the power to grant interim relief conferred by subsection (1) so as to make it exercisable in relation to proceedings of any of the following descriptions, namely— (a) proceedings commenced or to be commenced otherwise than in a Brussels or Lugano Contracting State or Regulation State; (b) proceedings whose subject-matter is not within the scope of the Regulation as determined by Article 1 of the Regulation; (c). . . . . . ” (a) proceedings have been or are to be commenced in a Brussels or Lugano Contracting State or a Regulation State other than the United Kingdom or in a part of the United Kingdom other than that in which the High Court in question exercises jurisdiction; and (b) they are or will be proceedings whose subject-matter is within the scope of the Regulation as determined by Article 1 of the Regulation (whether or not the Regulation has effect in relation to the proceedings). (a) proceedings commenced or to be commenced otherwise than in a Brussels or Lugano Contracting State or Regulation State; (b) proceedings whose subject-matter is not within the scope of the Regulation as determined by Article 1 of the Regulation; (c). . . . . . ”
“1. This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters. 2. The Regulation shall not apply to: (a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession; (b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; (c) social security; (d) arbitration.”
“Looking at the substance of the Claim, although the Claimant must prove that the pleaded offences were committed before a forfeiture order can be made, the US Claim does not involve the prosecution and sentencing of any individual in a criminal court which are the hallmarks of criminal proceedings.
“Subject to Rules 44 to 46, a court of a foreign country outside the United Kingdom has jurisdiction to give a judgment in personam capable of enforcement or recognition as against the person against whom it was given in the following cases: First Case – If the person against whom the judgment was given was, at the time the proceedings were instituted, present in the foreign country. Second Case – If the person against whom the judgment was given was claimant, or counterclaimed, in the proceedings in the foreign court. Third Case – If the person against whom the judgment was given, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings. Fourth Case - If the person against whom the judgment was given, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of that country.”
“Discussion and Decision 44. I deal first with Mr Stanley's arguments founded on the FRN and D2 settlement agreement and material non-disclosure which were not in the forefront of his submissions in opposition to the continuation of Teare J's order. 45. In my view, the settlement agreement does not render it inexpedient to continue the Freezing Injunction in order to hold the ring pending the determination of the US Claim. The Claimant is not an assignee of the FRN's rights to the proceeds of the corrupt practices relied on and nor was it a party to the settlement agreement or the proceedings thereby settled. Whether, notwithstanding these matters, the settlement is a defence or is otherwise relevant to the US Claim is a matter for the US Court and it would not be appropriate in my judgment to pre-empt the US Court on this issue by refusing to continue the Freezing Injunction in light of the settlement. 46. As to Mr Stanley's full and frank disclosure argument, in my judgment the way in which the cross-undertaking point was dealt with before the judge involved no failure to make proper disclosure to the court. As the judge appreciated, the application was being made under s. 25 of the 1982 Act because the statutory machinery was unavailable and that being so, the relevant authorities were cited to him and there was no necessity to refer to the compensation provisions in the POCA statutory scheme. 47. I turn then to Mr Stanley's principal contentions. In my judgment, he is correct to submit that a judgment in the US Claim would not be enforceable in rem in England at common law for the reasons he advanced. His submission that a judgment in the US Claim would not be enforceable at common law in personam because of a failure to comply with Rule 43 is also correct and I shall assume, without deciding the point, that such a judgment would additionally be unenforceable at common law on the ground that to enforce it would involve the court in enforcing directly or indirectly a foreign penal or other foreign public law. 48. Attractively presented as they were, I decline to accept these submissions. This application under s. 25 is not an application to enforce a foreign judgment but to continue an order designed to hold the ring until a judgment in the US Claim can be lawfully enforced under the 2005 Order, and in my opinion the fact that the application is made by the US in the exercise of its sovereign authority rather than under the 2005 Order is not a reason for concluding that it would be inexpedient to continue the Freezing Injunction. Indeed, I have come to clear view that it is unquestionably expedient for this court to render the assistance sought by the Claimant in aid of the US Claim. Corruption, like other types of fraud, is a global problem and it and its consequences are only going to be dealt with effectively if there is co-operation and assistance not only between the governments of states but also between the courts of different national jurisdictions. Orders enforcing US arrest warrants issued in the US Claim against property in Jersey and France have been made in those jurisdictions and I have no doubt that this court should follow suit and continue the Freezing Injunction ordered by Teare J on25 February 2014 .”
“no undertaking is given by the Applicant to compensate any of the Respondents or any third party for any loss caused with this order.”
"Her Majesty may by Order in Council – (a) make provision for a prohibition on dealing with property which is the subject of an external request; (b) make provision for the realisation of property for the purpose of giving effect to an external order."
“(a) is made by an overseas court where property is found or believed to have been obtained as a result or in connection with criminal conduct, and (b) is for the recovery of specified property or a specified sum of money.”
“Property is relevant property if there are reasonable grounds to believe that it may be needed to satisfy an external order which has been or which may be made." ”
“Section 447(2) makes an external order, which is made in relation to the recovery of the proceeds of crime, enforceable in the United Kingdom regardless of the form it takes. It could be an order made against a person (an 'in personam' order) or an order made against property (an 'in rem' order, as in civil forfeiture proceedings in the USA). It could be a forfeiture order (an order changing the title of property), an order to a person to pay a sum of money or some other kind of order. The external order must have been made by an overseas court (as defined by subsection (10)). It is immaterial what kind of court proceedings the external order is made in. It could be made in criminal proceedings, civil proceedings or some other court proceedings. However, non-court orders such as 'administrative' confiscation orders made by police officers and similar authorities are excluded from this scheme.”
"Giving effect in the United Kingdom to External Orders by means of Civil Recovery"
"This Part has effect for the purpose of enabling the enforcement authority to realise recoverable property (within the meaning of article 202) in civil proceedings before the High Court or the Court of Session for the purpose of giving effect to an external order."
“Application for property freezing order 147.—(1) Where the enforcement authority may take proceedings for a recovery order pursuant to the registration of an external order in the High Court, the authority may apply to the court for a property freezing order (whether before or after starting the proceedings). (2) A property freezing order is an order that— (a) specifies or describes the property to which it applies, and (b) subject to any exclusions (see article 149(1)(b) and (2)), prohibits any person to whose property the order applies from in any way dealing with property. (3) An application for a property freezing order may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property. (4) The court may make a property freezing order on an application if it is satisfied that the condition in paragraph (5) is met and, where applicable, that the condition in paragraph (6) is met. (5) The first condition is that there is a good arguable case— (a) that the property to which the application for the order relates is or includes recoverable property, and (b) that, if any of it is not recoverable property, it is associated property. (6) The second condition is that, if— (a) the property to which the application for the order relates includes property alleged to be associated property, and (b) the enforcement authority has not established the identity of the person who holds it, the authority has taken all reasonable steps to do so.”
“General exceptions 141F. (1) If— (a) a person disposes of relevant property, and (b) the person who obtains it on the disposal does so in good faith, for value and without notice that it is relevant property, a prohibition order may not be made in respect of the relevant property. (2) ….. (3) If— (a) in pursuance of a judgment in civil proceedings (whether in the United Kingdom or elsewhere), the defendant makes a payment to the claimant or the claimant otherwise obtains property from the defendant, (b) the claimant’s claim is based on the defendant’s criminal conduct, and (c) the sum received, or the property obtained, by the claimant is relevant property, a prohibition order may not be made in respect of the relevant property.”
“The wording of section 25(2) is inelegant and is perhaps not readily susceptible to close textual analysis, but its meaning is tolerably plain. On an application for interim relief under subsection (1), the court is not bound to grant relief, but may decline to do so if in its opinion the fact that it is exercising an ancillary jurisdiction in support of substantive proceedings elsewhere makes it inexpedient to grant it. It is the ancillary or subordinate nature of the jurisdiction rather than its source which is material, and the test is one of expediency. The structure of subsections (1) and (2) and the way in which their scope has been progressively widened indicate to my mind an intention on the part of Parliament that the English court should in principle be willing to grant appropriate interim relief in support of substantive proceedings taking place elsewhere, and that it should not be deterred from doing so by the fact that its role is only an ancillary one unless the circumstances of the particular case make the grant of such relief inexpedient.”
“[113] Mr Leggatt QC for the claimant has stressed the very wide discretion available to the court under s 25 and has argued in support of the reasons given by the judge. [114] The issue in this case arises because, on the face of it, the only fetter placed upon the otherwise apparently unlimited powers which the court has as a result of the combination of s 37 of the Supreme Court Act, s 25 of the [CJJA], and Rule 6.20 of the CPR is its power to refuse to grant relief if its absence of jurisdiction apart from s 25 makes such grant 'inexpedient'. It is plain that, in relation to the grant of worldwide relief, the jurisdiction is based on assumed personal jurisdiction; as such it has the potential for extra-territorial effect in the case of non-residents with assets abroad. Thus it is likely that the jurisdiction will prove extremely popular with claimants anxious to obtain security against defendants in disputes yet to be decided where they cannot obtain it in the court of primary jurisdiction or the court of the defendants' residence or domicile, which courts are the natural fora in which to make such applications. There is thus an inherent likelihood of resort to the English jurisdiction as an 'international policeman', to use the phrase employed by Moore-Bick J, in cases of international fraud. We would do nothing to gainsay, and indeed would endorse, the observations of Millett LJ in Cuoghi to the effect that international fraud requires courts, within the limits of comity, to render whatever assistance they properly can without the need for express provision by an international convention requiring it. However, even in the case of art 24 of the Brussels Convention it has been made clear that: “ . . . the granting of provisional or protective measures on the basis of Article 24 is conditional on, inter alia, the existence of a real connecting link between the subject matter of the measures sought and the territorial jurisdiction of the contracting state of the court before which those measures are sought.”see (Van Uden Maritime BV v Kommanditgesellschaft In Firma Deco-Line[1999] QB 1225 ,[1999] 2 WLR 1181 at 1210 para 40). Further, in so far as 'police' action is concerned, policing is only practicable and therefore expedient if the court acting in that role has power to enforce its powers if disobeyed. In that respect the principle in Derby v Weldon already quoted plainly has application and is apt to be applied in cases of this kind. [115] As the authorities show, there are five particular considerations which the court should bear in mind, when considering the question whether it is inexpedient to make an order. First, whether the making of the order will interfere with the management of the case in the primary court e.g. where the order is inconsistent with an order in the primary court or overlaps with it. That consideration does not arise in the present case. Second, whether it is the policy in the primary jurisdiction not itself to make worldwide freezing/disclosure orders. Third, whether there is a danger that the orders made will give rise to disharmony or confusion and/or risk of conflicting inconsistent or overlapping orders in other jurisdictions, in particular the courts of the state where the person enjoined resides or where the assets affected are located. If so, then respect for the territorial jurisdiction of that state should discourage the English court from using its unusually wide powers against a foreign defendant. Fourth, whether at the time the order is sought there is likely to be a potential conflict as to jurisdiction rendering it inappropriate and inexpedient to make a worldwide order. Fifth, whether, in a case where jurisdiction is resisted and disobedience to be expected, the court will be making an order which it cannot enforce.”
“This is an action in rem to forfeit five corporate entities and more than$500 million in other assets involved in an international conspiracy to launder the proceeds of corruption… The defendants in rem are subject to forfeiture as property involved in money laundering offences in violation of US law.” [My emphasis.] iii) Likewise, paragraph 4 of the complaint states: “By this Complaint, the United States seeks forfeiture of all right, title and interest in the following property:” [my emphasis] and then goes on specifically to identify “the defendants in rem”. iv) Paragraph 6 states that the US court has “in rem jurisdiction over the named defendant properties" by reference to certain statutory provisions. v) The relief in the US proceedings consists of five claims for forfeiture. In each of the five claims, the operative paragraph of the claim for relief contains the following wording: “The following defendants in rem constitute property involved in money laundering transactions and attempted money laundering transactions… and therefore are subject to forfeiture…”
“(1) The powers conferred on the High Court by sections 8(1) and 9 (1) of this Act or exercisable where - (a) proceedings have been instituted against the defendant in a designated country, (b) the proceedings have not been concluded, and (c) either an external confiscation order has been made in the proceedings or it appears that there are reasonable grounds for believing that such an order may be made in them. (2) Those powers are also exercisable where it appears to the High Court that proceedings are to be instituted against the defendant in a designated country and that there are reasonable grounds for believing that an external confiscation order may be made in them.”
“The High Court may by order (in this Act referred to as a "restraint order") prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in the order.”
“ (1) An order made by a court in a designated country for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value is referred to in this Act as an ‘external confiscation order’. (2) In subsection (1) above the reference to an order includes any order, decree, direction or judgment, or any part thereof, however described. (3) A person against whom an external confiscation order has been made, or a person against whom proceedings may result in an external confiscation order being made have been, or are to be, instituted in a court in a designated country, is referred to in this Act as “the defendant”.”
“Whether, notwithstanding these matters, the settlement is a defence or is otherwise relevant to the US Claim is a matter for the US Court and it would not be appropriate in my judgment to pre-empt the US Court on this issue by refusing to continue the Freezing Injunction in light of the settlement.”