Corbiere Ltd v Ke Xu [2018] EWHC 112 (Ch)

Case No HC-2014-001924[2018] EWHC 112 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/01/2018
Before
MR JUSTICE ZACAROLI
Between
(1) CORBIERE LIMITEDClaimants(2) TRENCHANT LIMITEDClaimant(3) TRENCHANT EMPLOYEE SERVICES LIMITEDClaimantKE XUDefendantSECRETARY OF STATE FOR THE HOME DEPARTMENTIntervener
Mr Tony Peto QC, Mr Mike Fordham QC, Ms Emma Dixon, Mr Richard Blakeley (instructed by Allen & Overy LLP) for ClaimantsMr Ke Xu (Appeared in Person) for in personMr Robin Tam QC, Mr Alan Payne (instructed by the Government Legal Department) for Intervener)Hearing Hearing dates: 12 January 2018
JudgmentMr Justice Zacaroli :Introduction
[1]This is an application (by Application Notice dated 8 November 2017, amended on 5 January 2018) in long running proceedings arising out of the misappropriation by the Defendant, Mr Xu, of confidential information belonging to the Claimants.[2]The Claimants seek(1) an order that Mr Xu disclose, among other things, the location of confidential information he wrongly accessed and copied, what became of it, and the names of those who have or have had it in their possession (the “Disclosure Application”); and(2) an order that Mr Xu be restrained from leaving the jurisdiction and that he surrender his passport until he has complied with those orders (the “Passport Application”).[3]The Claimants additionally seek declarations, if orders are made on the Disclosure Application and Passport Application, that such orders engage the Claimants’ rights under Article 6 of Schedule 1 to the Human Rights Act 1998, and that action by the Secretary of State for the Home Department (“SSHD”) to deport Mr Xu would constitute an interference with those rights. The SSHD has intervened and made submissions by Leading Counsel (Mr Tam QC) in relation to these declarations, but takes no position on the substantive relief sought in the Disclosure Application or the Passport Application.

Background

[4]The Claimants are engaged in quantitative investment research and software development. They specialise in developing algorithmic investment strategies that allow computerised buying and selling of stocks and shares without human intervention. The strategies are highly confidential and highly valuable.[5]Mr Xu is a Chinese National who was employed as a quantitative analyst by the Claimants from October 2012 to August 2014. He is currently in immigration detention, having served the custodial parts of a four-year sentence for fraud and an 18-month sentence for breaches of a Serious Crime Prevention Order (SCPO).[6]In August 2014, Mr Xu wrongfully accessed and copied highly confidential technical information from the Claimants, having spent some months secretly planning how to execute this fraud. On 5 August 2014, he left the Claimants’ employment and flew to Hong Kong with the confidential information.[7]On 6 August 2014 the Claimants obtained an order from Mann J requiring Mr Xu to hand over certain items and documents he was then known to have taken from the Claimants’ premises, preventing him from knowingly using or copying for any purposes any information relating to the Claimants’ business, and requiring him to surrender his passport.[8]The order was, in this last respect, too late in that he had already fled the jurisdiction.[9]The Claim Form in these proceedings, amended on 22 August 2014, seeks(1) an injunction restraining Mr Xu from using or disclosing to any other person the confidential information;(2) delivery up or destruction upon oath of all articles or materials the use or publication of which would contravene the injunction;(3) an enquiry as to damages; and(4) an order for disclosure in respect of any third parties to whom any of the confidential information had been communicated.[10]The Claimants subsequently obtained an order from a Hong Kong court preventing Mr Xu from executing his plan to go to China. But according to Mr Xu, his parents-in-law had already travelled to Hong Kong from China on 8 August, collected his computers and other devices and taken them back over the border into China. The Hong Kong order, obtained on 11 August 2014, required disclosure of the present location of all computers he had, or had ever had, in his possession. On 13 August, Mr Xu disclosed 28 categories of devices, most of which he said were with his parents in China. However, he failed to disclose certain other items, including his blackberry and crypto-card, used by him to hack into the Claimants’ systems.[11]On 14 August, as a result of request from the Crown Prosecution Service, Mr Xu was arrested in Hong Kong. On 25 August 2014, a further order of the Hong Kong court required him to deliver up all computer devices. On 26 August, Mr Xu purported to give instructions to his parents to deliver up items in their possession, but when the Hong Kong supervising solicitor sent representatives to his parents, they admitted they had items, but refused to hand them over.[12]Mr Xu was extradited to England to face fraud charges, relating to his misappropriation of confidential information from the Claimants, later in 2014.[13]Mr Xu admitted reverse engineering around 55 of the Claimants’ investment strategies for his own personal gain, for use in furthering his career elsewhere. He denied, however, having taken copies of the strategies (beyond the three strategies about which handwritten notes were found at his house).[14]Upon his admissions and guilty plea he was sentenced to four years’ imprisonment for fraud. An SCPO was made against him requiring him to deliver up all of the Claimants’ confidential information in his possession or under his control and disclosure of all third parties to whom he had allowed possession of or access to that information and the location of any copies.[15]Mr Xu failed to comply with that order. The Claimants brought a private prosecution against him for failure to comply. Mr Xu denied all charges. He was found not guilty on three counts, relating to failure to deliver up copies of the information and devices, but he was found guilty on two counts, of failing to disclose that he had allowed third parties to access the information and failing to disclose all locations of the copies of the information. In January 2017 Mr Xu was sentenced to 18 months imprisonment in respect of those convictions. By the convictions, the jury must have been satisfied, beyond reasonable doubt, that he had taken copies. The trial Judge (HHJ Tomlinson) said that had he had to decide it himself, he would have found Mr Xu guilty on the failure to deliver up charges as well.[16]On 16 May 2017 a confiscation order was made against Mr Xu in the sum of £32,208.91, representing Mr Xu’s only disclosed realisable and available assets. Mr Xu contends that this order, being limited to that sum, establishes that he has no hidden assets of any value. This point was raised in proceedings to which I will refer to below before Supperstone J, who noted in paragraph 69 of a judgment dated 20 December 2017 that the question of hidden assets was not pursued in the confiscation proceedings for good reason, namely that it has been established in R v Islam [2009] 1 AC 1076, per Lord Hope at [18] that “The market that has to be contemplated for the assessment of the available amount under s.9 of POCA 2002 must be taken to be one to which the defendant can resort to realise his assets without acting illegally.”[17]A further SCPO was issued on 7 July 2017.[18]At the confiscation order hearing on 16 May 2017, the Claimants had sought a further order preventing Mr Xu from leaving the jurisdiction until the licence period of his sentence had expired in August 2018, on the grounds that enabling Mr Xu to be reunited with the confidential information would enable him to exploit it thus causing the very harm which the proceedings against him were intended to prevent. HHJ Tomlinson refused, on the basis that deportation, permission to leave and the retention of Mr Xu’s passport, together with the imposition of other conditions of presence in the UK during the licence period were decisions for the SSHD and Secretary of State of Justice as the appropriate executive authorities, subject to any judicial review challenge.[19]The SSHD determined in September 2017 that Mr Xu should be deported. The Claimants sought judicial review of that decision. In a judgment delivered on 20 December 2017 Supperstone J dismissed that application. One of the points raised before him was that it would be an interference with the Claimants’ Article 6 rights for Mr Xu to be deported. Supperstone J dealt with this at [88] to [91] and [103] of his judgment as follows:
“88. The Claimants contend that if Mr Xu were to be deported before 14 August 2018 this would interfere with their fair trial rights in the civil proceedings. Mr Fordham submits that there is no practical and effective civil process if Mr Xu has been allowed to leave the UK. He could not effectively be brought to account and civil remedies against him could not effectively be secured and enforced. There is obvious benefit, it is said, to the Claimants in being able to cross-examine Mr Xu on the material issues in the civil proceedings. If returned to China he would be very unlikely to attend cross-examination by video link, and even if he were to do so, such evidence would be substantially inferior to live evidence. Further, the remedies that the Claimants seek are likely to be frustrated by his deportation. The enforcement of any judgment in China will be very difficult. 89. Mr Tam submits that, absent a specific order from the court, it is a matter for Mr Xu whether or not he chooses to exercise his Article 6 right to participate in the civil proceedings. If he chooses not to, he may waive his own Article 6 rights but this would not amount to an interference with the Claimants' Article 6 rights. Mr Xu's consent to deportation demonstrates that he does not wish to participate from within the UK. 90. In any event, even if Mr Xu's deportation would somehow interfere with the Claimants' Article 6 rights Mr Tam submits that the strong public interest in deporting a serious foreign criminal such as Mr Xu outweighs any such interference. 91. Mr Tam submits that if the Claimants fear that Mr Xu's departure from the UK will interfere with their Article 6 rights they can apply within the civil proceedings for an order prohibiting his travel outside the UK. Mr Fordham accepts that the most appropriate forum for consideration of the Article 6 issue is in the civil proceedings and he has informed me that the Claimants have recently made arrangements for such an application to be made to a judge in the civil proceedings in the event that they do not succeed in the present claim. … 103. I consider the proper forum for any Article 6 issue to be raised is in the civil proceedings. Permission is therefore refused on the Article 6 ground.”
[20]Permission to appeal against Supperstone J’s dismissal of the application for judicial review was granted by Singh LJ on 15 January 2018. That appeal has been expedited. Before me, the SSHD undertook to this court not to deport Mr Xu until at least 72 hours after I have delivered judgment in this matter.[21]These (civil) proceedings having been informally stayed in 2015, pending the outcome of the criminal proceedings, they were reactivated in June 2017.

The Disclosure Application

[22]The court has a wide power under CPR 25.1 to order disclosure prior to trial, in particular in support of an injunction restraining the use of confidential information, or to enable appropriate steps to be taken to preserve property which may be ordered to be delivered up at trial, or to identify third parties to whom confidential information has been passed and against whom proceedings might be brought.[23]It has been proved beyond reasonable doubt that Mr Xu took copies (as a result of the Jury’s conclusion in the SCPO proceedings that he was guilty of failing to disclose the locations of copies and people to whom copies had been provided). Mr Xu submitted that he will rely on evidence at trial – of an expert nature – to show how he could not have taken copies, and thus rebut the presumption in s.11 of the Civil Evidence Act 1968 that he committed the relevant offence. No such evidence is before me, and there is presently no evidence to rebut the presumption.[24]The Claimants accordingly have a strong prima facie case that Mr Xu wrongfully took confidential information. Putting to one side for a moment the criminal proceedings, I have no doubt that the order for disclosure sought is a proper one to make in light of the strength of the Claimants’ case, and the fact that the benefit of the substantive relief sought in the action would be rendered nugatory unless the Claimants can recover the confidential information from Mr Xu, and/or from any other persons to whom it has been passed. The disclosure sought is necessary to protect the Claimants’ legitimate need to identify where the information is, so that their rights in respect of it can be protected, and the information can ultimately be retrieved.[25]Mr Xu submits that he cannot be ordered to produce the information, because he has already been ordered to provide substantially the same information by the SCPO, and he has already sufficiently answered those orders by saying he took no copies. He submits that it would be wrong to force him to renege on that position in response to civil orders. He also submits that he should not be punished twice for the same non-disclosure (having already been sentenced to 18 months in prison for failing to provide the disclosure ordered by the SCPO). He says that the orders would be wholly “retro” and contribute nothing to the civil trial.[26]I reject these submissions. The criminal proceedings and the civil proceedings serve different ends. The civil proceedings alone are concerned with vindicating the Claimants’ rights. While there was practical sense in the Claimants staying the civil proceedings in the hope that the SCPO would result in the relevant information (which was materially similar to that sought in the civil proceedings) being obtained, the fact that it was not obtained by that route does not preclude the Claimants from seeking to obtain the same information in the civil proceedings.[27]As to the risk of being punished twice, that is a risk that does not arise at this stage, since the only order sought is that the disclosure be provided. It is possible that the issue will arise if Mr Xu continues to fail to provide the information sought, and the Claimants resort to committal proceedings. That, however, is not a concern for today.[28]As to the submission that there is no point in ordering disclosure, given Mr Xu’s answers already provided in response to the SCPO, even if (which I do not decide) the Claimants would be prohibited from resorting to committal proceedings in the event of non-compliance, the fact that the Claimants would be entitled to seek to cross-examine Mr Xu provides sufficient reason to conclude that there is a purpose in making the orders, notwithstanding Mr Xu’s denial that he copied the information, and his failure to provide the same disclosure to date in the SCPO proceedings. His denial has, in any event, to be set against the presumption that he has indeed taken copies, which follows from the guilty verdicts within the SCPO proceedings.[29]Mr Xu contends that there is no sufficient risk of harm to the Claimants, because of the delay since 2014. It is common ground that the value of the information diminishes over time – but there is a dispute as to whether it has now declined to a sufficient extent that there is no longer any value left, which requires protecting. I cannot resolve that dispute. Supperstone J, at [72] of his judgment dated 20 December 2017 concluded that it was clear from all the evidence that “whilst there is a potential risk that the Claimants could suffer significant harm to their commercial interests, any financial loss that they are likely to sustain remains unquantifiable and very uncertain.” Based on the evidence I have been shown, including a witness statement of Lawson Caisley dated 30th of October 2017 which provides an explanation as to why the Claimants’ estimate of over £31 million (made in the context of the confiscation proceedings) as to the value of the benefit of Mr Xu’s crime was conservative, it seems to me that at the very least there is a real risk of substantial harm to the Claimants if Mr Xu were able to exploit the confidential information stolen by him. That is an important factor, in itself, in exercising the discretion whether to order disclosure in this case.[30]Accordingly, I will make a disclosure order in the term sought in the amended Application Notice.

Passport Application

[31]The jurisdiction to make the order sought in the Passport Application is found in s.37 of Senior Courts Act 1981. The considerations to be taken into account in considering the discretion to make such an order were described by Fox LJ in the Court of Appeal in Bayer v Winter AG [1986] 1 WLR 497, at pp.502-503.(1) First, it is necessary to consider the harm that would be done to the defendant in making the order;(2) Second, it is necessary to consider the harm to the Claimants if no order is made. In Bayer v Winter AG itself, where the order was sought in aid of an order for disclosure, Fox LJ noted that if the defendant left the United Kingdom, then the plaintiffs were at risk that they would be unable to obtain the information, noting that while within the jurisdiction the defendant could be compelled to attend for cross-examination;(3) Third, the essential question is whether the order was reasonable and necessary, ancillary to the due performance of the court’s functions;(4) Fourth, recognising that the order interferes with individual liberty, it should be for a period of time that was no longer than necessary to enable the plaintiffs to serve the orders to which the restraint order was ancillary, and to endeavour to obtain from the defendant the information referred to in those orders;(5) Fifth, Fox LJ noted that the court had both the power, and the duty – where an order such as an order for disclosure had been made – to take such steps “as will enable the order to have effect as completely and successfully as the powers of the court can procure.”[32]In Kuwait Airways Corporation v Iraq Airways Co [2010] EWCA Civ 741, another case in which an order was sought restraining a party from leaving the jurisdiction in aid of a disclosure order, the Court emphasised the need to balance “on the one side of the argument … the very powerful submission that the court should not act in vain and should do whatever is necessary to support its orders to ensure that they are not futile” and “[o]n the other hand … the powerful argument that an aspect of the liberty of the respondent is concerned.”[33]In the skeleton argument served by the Claimants on 15 November 2017, the Claimants sought an order restraining Mr Xu from leaving the jurisdiction only until he had complied with the disclosure order. They now, however, seek an order until after trial.[34]An order restraining the defendant from leaving the jurisdiction until after trial was made in Young v Young [2012] Fam 198. Mostyn J identified the relevant principles as follows (at [26]):
“(i) The power to impound a passport pending the disposal of a financial remedy claim exists in principle in aid of all the court's procedures leading to the disposal of the proceedings. (ii) But it involves a restriction of a subject's liberty and so should be exercised with caution. The authorities emphasise the short-term nature of the restraint. The law favours liberty. (iii) A good cause of action for a substantive award must be established. (iv) The applicant must establish that there is probable cause for believing that the respondent is about to quit the jurisdiction unless he is restrained. (v) And the applicant must further establish that the absence of the respondent from the jurisdiction will materially prejudice her in the prosecution of her action. (vi) Provided that the principles in (i)–(v) are carefully observed a passport impounding order will represent a proportionate public policy based restraint on freedom of movement founded on the personal conduct of the respondent.”
[35]I will consider, first, the application on the basis that restraint is limited until compliance with the disclosure order.[36]The need for such an order, from the perspective of the Claimants, is demonstrated by the following factors:(1) the strength of the prima facie case that Mr Xu has misappropriated confidential information of the Claimants;(2) the real risk of harm to the Claimants if Mr Xu is able to exploit that information;(3) the real risk that Mr Xu would be effectively free to exploit the information to the detriment of the Claimants if he were permitted to leave the jurisdiction and return to China;(4) the fact that this would render the relief sought by the Claimants in the action effectively worthless;(5) the need for the information sought by the disclosure order (as described above);(6) the fact that if Mr Xu leaves the jurisdiction, the Claimants’ ability to enforce the disclosure order, for example by an order for cross-examination or, potentially, contempt proceedings, would be effectively lost; and(7) the fact that Mr Xu has made it plain that he intends to return to China as soon as possible, combined with the events of August 2014 when he did just that on first misappropriating the Claimants’ information.[37]As against this, Mr Xu contends that he would suffer harm through the making of such an order, because in view of the SSHD’s decision to deport him he would be unable to work or find a place to live in this jurisdiction if and when he is released from detention. I note that this was an important factor in HHJ Tomlinson’s decision to refuse to make a similar order in connection with the SCPO, until expiry of the licence period of his sentence, in May 2017. The fact that the Claimants had offered to hand over in one lump sum funds necessary for Mr Xu to support himself if released from detention was insufficient to persuade HHJ Tomlinson to make such an order. In my judgment, the situation with which I have to deal is materially different, because the period for which Mr Xu would be restrained from leaving the jurisdiction by reason of an order of this court would be largely within his own power. If the order is limited to the period required for him to comply with the disclosure order then upon his compliance he would be free to leave the jurisdiction.[38]Mr Xu makes a number of further submissions in opposition to the Passport Application. He contends that the order sought would be redundant in light of the decision to deport him, that its only purpose would be to frustrate the SSHD, to override the functions of the Administrative Court and to create tension with the executive. These submissions are answered by the fact that an order made by this court on the Passport Application has no binding effect on the SSHD or the Administrative Court. Mr Tam QC for the SSHD made clear that an order from this court would have real purpose, in that it would be a matter to be taken into account by the SSHD in her decision-making process, certainly as regards the timing of Mr Xu’s deportation.[39]Accordingly, in my judgment, taking into account the interests of the Claimants and the harm to Mr Xu, the balance comes down in favour of restraining Mr Xu from leaving this jurisdiction and surrendering his passport until compliance with the disclosure order.[40]I turn to consider the broader application for a passport order until after trial. Of the matters summarised in the passage from Young v Young recited above, two in particular arise for consideration here. First, the importance of the restraint being for as short as possible and, second, the need for the Claimants to show that they are materially prejudiced without the restraint order. In light of these considerations, I consider that the balance between the interests of the Claimants and the harm to Mr Xu comes down in favour of refusing the broader form of order at this stage, for the following reasons:(1) There is no necessity for the broader form of order at this stage, since the Claimants have the protection of the narrower form of order in support of the disclosure order;(2) I do not accept that the Claimants would be materially prejudiced at trial if Mr Xu were absent, since his non-attendance would not inhibit their ability to prove their case before the court.(3) While I accept that there is potential for material prejudice to the Claimants in respect of enforcement of any order they obtain at trial, it lies in the Claimants’ hands to obtain pre-trial relief which would (if enforced) substantially remove such post-trial prejudice. Insofar as they would be prejudiced in enforcing any judgment by reason of lack of information, the information they would need is essentially the same as that which is sought by the Disclosure Application and the narrower form of restraint order that I am prepared to make provides sufficient protection. Insofar as they would be prejudiced in enforcing any order as to delivery up of items, because without Mr Xu’s presence within this jurisdiction it may be said that they have no effective means of enforcement, then it seems to me that there are other pre-trial remedies available to them, in the form of orders for delivery up of relevant materials pending the trial, which could themselves, if appropriate, be supported by an extension of the restraint order to enforce compliance. Such an extension would, like the narrower form of order I am currently prepared to make, be for only so long as Mr Xu failed to comply. I do not pre-judge whether an application for delivery up pre-trial would succeed, since no application has so far been made, noting only that such an order was made by Mann J at the outset of these proceedings in August 2014, in respect of the materials that Mr Xu was then known to have taken.(4) Accordingly, I am not satisfied that it is currently necessary to make a restraint order on the Passport Application that extends until after trial.(5) In those circumstances, the harm to Mr Xu of such an order (which would be significantly greater than the harm inflicted by the more limited form of order, since it would not lie in his hands to bring the period of restraint to an end) would not in my judgment be justified.

Article 6

[41]By section 32 of the UK Borders Act 2007, the SSHD has a duty to make a deportation order in respect of a foreign criminal, which includes a person who is not a British citizen who is convicted of an offence in the United Kingdom and where the sentence imposed is imprisonment of at least 12 months. Mr Xu satisfies that definition.[42]This is however, subject to an exception in s.33(1), where deportation would breach a person’s Convention rights (as defined in the Human Rights Act 1998).[43]It is common ground that any decision by this court on the Passport Application restraining Mr Xu from leaving the jurisdiction is not binding on the SSHD, but that public law rights are relevant in this case on two bases:(1) First, if this court makes an order restraining Mr Xu from leaving the jurisdiction then, while that does not affect the obligation in s.32 of the UK Borders Act 2007 to deport Mr Xu, it is a matter which the SSHD is bound to take into consideration when determining the timing of that deportation.(2) Second, if the deportation of Mr Xu would be a breach of the Claimants’ rights under Article 6, then the duty to deport Mr Xu is disapplied. In those circumstances, Mr Fordham QC, appearing for the Claimants in respect of public law issues, submits that if the SSHD nevertheless wishes to deport Mr Xu, she has the burden of establishing that the interference is justified.[44]In effect, although the jurisdictional route is different in each case, both factors go to timing of deportation alone, since the Convention right relied on by the Claimants is the right to a fair trial under Article 6 which will fall away (at the latest) after any order made at trial in their favour has been enforced. (The SSHD and the Claimants are in agreement that the right to a fair trial under Article 6 is at least capable of extending beyond trial to encompass rights in relation to effective enforcement of orders made at trial.)[45]My decision on the Passport Application is sufficient to engage the first of the public law points raised.[46]As to the Article 6 point, the reason that it is raised before me is found in the passages from the judgment of Supperstone J recited at paragraph 18 above. Mr Fordham QC submits (and I understood this to be accepted by Mr Tam QC for the SSHD) that there are three sub-questions within the Article 6 point:(1) whether the passport order engages the Claimants’ rights under Article 6;(2) whether action by the SSHD to deport Mr Xu or return his passport to him would constitute an interference with those rights; and(3) if so, whether any justification for that interference has been established. It is only, however, the first two of those questions which I am asked to consider. These were the points which the parties, and Supperstone J, considered were more appropriately determined by this court in the context of the civil proceedings.[47]As the point was developed in argument, it became apparent that it was put on the sole basis that if I was persuaded to make the passport order in support of the disclosure order then it followed as night follows day that the Claimants’ rights under Article 6 were engaged and would be interfered with by deportation action. In other words, the court’s conclusion that a passport order was justified, in order to ensure that the Claimants’ interests in obtaining disclosure were adequately protected, itself answered the question whether the Claimants’ Article 6 rights were engaged and would be interfered with.[48]As put, while it is clearly correct that this court is best placed to deal with the question whether the passport order is appropriate at all, it is difficult to see why this court is better placed than the Administrative Court to determine the Article 6 point.[49]Nevertheless, I will deal with the point, as put, if only because there is already an extant appeal to the Court of Appeal in relation to the public law matters decided by Supperstone J and it may be appropriate to afford the opportunity for such appeal to deal with my decision on this corner of the public law piece at the same time. As Mr Fordham QC submitted, it would be unfortunate if the Claimants’ ability to argue the point fell between the twin stools of the Administrative Court and the Business and Property Court without it being resolved in either.[50]At the heart of Mr Fordham QC’s submissions is the proposition that if the court is persuaded that there needs to be an order against the other party for disclosure, and for a passport order in support of that order for disclosure, then it will have been so persuaded because it is necessary and proportionate to dispose of the case justly (in the language of the overriding objective) and for the proceedings to be effective. That is the same thing, he says, as a conclusion that the Claimants’ rights under Article 6 are engaged.[51]In his oral argument, he relies on three matters in support:(1) the decision of the European Court of Human Rights in Wierzbicki v Poland (2004) 38 E.H.R.R. 38;(2) Vol 2 of the White Book, at p.2910; and(3) Home Office guidance for entry clearance officers.[52]Wierzbicki v Poland was concerned with a claim brought in Poland by a candidate in Parliamentary elections against the applicant, a newspaper editor, who it was claimed had caused to be published a false article about the candidate. The applicant asked the court to call as witnesses the current and former Ministers of Internal Affairs and a well-known politician. The court declined to call the witnesses. It is unclear whether (as Mr Tam QC suggested may be the case) it was normal procedure in respect of that type of claim in Poland for a party to submit a request to the court to call witnesses. Judgment was given in the claim against the applicant, and his appeal failed. He brought proceedings before the ECHR claiming (among other things) that his rights under Article 6(1) were violated. The Court concluded by six votes to one that there had been no such violation.[53]Mr Fordham QC relies on the case because it showed that Article 6(1) was engaged and interfered with (which is relevant to the only point he asks me to decide), and that having been engaged and interfered with it was necessary for there to be justification before the court’s refusal to call the witnesses could be held not to violate Article 6(1).[54]It is clear, however, that the relevant aspect of Article 6 (the right of a person in the determination of his civil rights and obligations to a fair hearing by a tribunal) was engaged, because the case concerned the right of the applicant to adduce evidence in support of his own case. As the Court concluded (at [39]):
“Article 6 of the Convention does not explicitly guarantee the right to have witnesses called or other evidence admitted by a court in civil proceedings. Nevertheless, any restriction imposed on the right of a party to civil proceedings to call witnesses and to adduce other evidence in support of his case must be consistent with the requirements of a fair trial within the meaning of para. 1 of that Article, including the principle of equality of arms. As regards litigation involving opposing private interests, equality of arms implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent.”
[55]The engagement of Article 6 was independent of, and prior to, any order of the court requiring a witness to attend. It merely demonstrates that the court, in determining whether to make an order calling witnesses, had to have regard to that pre-existing right. The case is not authority, therefore, for the proposition that if a court determines that it is in the interests of justice to make an order requiring a party to attend court, let alone requiring a person to remain within the jurisdiction, that necessarily means that Article 6(1) is engaged.[56]At p.2910 of vol.2 of the White Book, reference is made to the fact that the CPR were drafted with the ECHR in the background and were clearly intended to be compliant with it. It goes on:
“It is clear from r.1.1 that the overriding objective of the CPR is to enable the courts to provide a fair trial process. This aim is consistent with the purpose of art 6(1)”
. As to this, I accept Mr Tam QC’s submission that this demonstrates no more than that the CPR are designed to be consistent with Article 6, and does not indicate that any order which the Court makes, on the basis of a provision in the CPR or consistent with the overriding objective, is necessarily one which reflects or vindicates a right within Article 6(1). In other words, Article 6(1) provides the minimum content of the right to a fair trial, but the Court may make orders in favour of one party or another which go beyond that minimum content. It cannot be assumed, therefore, that simply because the Court exercises a discretion afforded it under the CPR, or some other statutory provision, it is doing so in order to vindicate a right encompassed within Article 6.[57]The Home Office guidance referred to takes matters no further. The guidance notes (at p.9) state that “If there is a court order requiring the applicant to be admitted to the UK for the purpose of court proceedings, Article 6 is engaged”. It recommends (at p.13) that entry clearance officers must consider whether a decision to refuse a “visit visa” would “interfere with the Article 6 rights of the applicant.” Mr Fordham QC submits that the guidance given only makes sense if the Claimants are right about the scope of Article 6. Apart from the fact that it is risky to reach any conclusion as to the scope of Article 6(1) based on internal Home Office guidance, and the fact that the guidance at p.13 begins by referring to the interference with the Article 6 rights of “the applicant” (i.e. the person seeking entry to the UK), the guidance makes it clear that the mere existence of a court order does not indicate that refusing entry is an interference with Art.6, for example where the person is required to give evidence in court proceedings, but could do so via video link.[58]In summary, I do not find sufficient support in the three matters relied on by Mr Fordham QC to accept his basic proposition – that if the court is persuaded to exercise its discretion in favour of making a restraint order on the Passport Application, on the basis of the test to be applied in the cases I have cited above, it necessarily follows that the Claimants then have a right, properly characterised as right falling within Article 6(1) in the terms of that order.[59]I recognise that the rejection of the Claimants’ basic proposition does not in itself determine that the Claimants do not have a right, properly characterised as an Article 6(1) right, to have a restraint order made and/or enforced against Mr Xu. That would depend upon the precise content and scope of the right to a fair trial within Article 6(1) and whether it can encompass a right to require an opposing party to remain within the jurisdiction, so that further orders can in the future be made (such as orders for cross-examination, and orders for committal for contempt). Since, however, the only basis advanced before me for the Claimants’ contention that Article 6(1) is engaged was the basic proposition that it is engaged as a necessary consequence of the Court’s order on the Passport Application, I have not heard any argument to assist me in determining matters going to the precise scope and content of Article 6(1). Without the benefit of such argument, I do not think it appropriate to express any view on the extent to which making a restraint order on the Passport Application might engage Article 6(1) on some other basis.

Cited in 4 later judgments