(1) TEODORO OBIANG NGUEMA MBASOGO THE PRESIDENT OF THE STATE OF EQUATORIAL GUINEA (2) THE REPUBLIC OF EQUATORIAL GUINEA represented by the Attorney General v (1) LOGO LIMITED (2) SYSTEMS DESIGN LIMITED (3) GREG WALES (4) SIMON FRANCIS MANN (5) ELI CALIL (6) SEVERO MOTO [2005] EWHC 2034 (QB)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
[2005] EWHC 2034 (QB)Case No Case No: HQ04X02003Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
(1) TEODORO OBIANG NGUEMA MBASOGO THE PRESIDENT OF THE STATE OF EQUATORIAL GUINEA (2) THE REPUBLIC OF EQUATORIAL GUINEA represented by the Attorney GeneralClaimants(1) LOGO LIMITED (2) SYSTEMS DESIGN LIMITED (3) GREG WALES (4) SIMON FRANCIS MANN (5) ELI CALIL (6) SEVERO MOTODefendants
Before
Mr Justice DavisSir Sydney Kentridge QCMr Harry Matovu and Mr John McLinden (instructed by Penningtons Solicitors LLP) for the Claimants Mr Philip Shepherd QC and Mr Bajul Shah (instructed by Kerman & Co LLP) for the First, Second and Fourth Defendants Mr Michael McLaren QC and Mr Paul Sinclair (instructed by Collyer-Bristow) for the Fifth Defendant Hearing dates: 27th July, 28th July and 29th July
[1]Davis J : Introduction These proceedings were commenced by Claim Form issued on the 30th June 2004. Since then the Claim Form, and accompanying Particulars of Claim, have been subject at various stages to very significant adjustment and redrafting. The latest form is the 5th version produced, and the Claimants seek leave by application notice dated 12th July 2005 to amend by reference to that draft (which can be called "APOC5").[2]The First Claimant is Mr Teodoro Obiang Nguema Mbasogo, suing as the President of the State of Equatorial Guinea. The Second Claimant is the Republic of Equatorial Guinea represented by the Attorney-General. The first two Defendants are companies incorporated in the British Virgin Islands and the Bahamas respectively, each having its place of business at St Peter Port, Guernsey. The Third Defendant and Fifth Defendant are resident in England and Wales. The Fourth Defendant is said to be resident in England and South Africa (in fact he currently is in prison in Zimbabwe) and is said to be connected with the first two Defendants. The Sixth Defendant is said to be resident in Spain.[3]The claims, in short, relate to what is said to have been an attempted coup d'etat directed at the Claima nts, which was forestalled by actions taken on and around the 7th March 2004. The principal allegation (although not the only allegation) is that the Defendants were party to a conspiracy in that regard, directed at each of the Claimants, and that loss and damage has been suffered by each in consequence. It is further said that the First Claimant was assaulted by the Defendants. Damages (including exemplary damages) for "conspiracy and/or assault", are claimed. Injunctive relief is also claimed.[4]On the 4th May 2005 the Fifth Defendant issued an application notice seeking to strike out the Claim Form and Particulars of Claim in their then extant version. On the 25th May 2005 the First, Second and Fourth Defendants (who may, by reference to their solicitors, collectively be styled "the Kerman Defendants") issued an application notice seeking to strike out under CPR 3.4 (2) such Claim Form and Particulars of Claim: summary judgment, pursuant to CPR 24, being sought in the alternative. Although APOC5 was produced after those dates, it was common ground before me that the strike-out applications should be determined by reference to APOC5. No applications have been issued by the Third Defendant or the Sixth Defendant: although the latter's solicitors have written a letter in effect reserving his position for the future, albeit not opposing the Claimants' present application to amend.[5]It is to be noted that no jurisdictional dispute, for present purposes, is raised as to the High Court in London being an appropriate and proper forum for these proceedings on the basis pleaded. The essential dispute before me is whether APOC5 discloses any reasonable grounds for bringing the claim. It is, in this regard, accepted on behalf of the Kerman Defendants that the alternative formulation of challenge, by reference to CPR 24, is very much subordinate to their principal attack. In addition the Fifth Defendant says that APOC5 (in common with its predecessors) is unreasonably vague and underparticularised, such that the Fifth Defendants does not, it is asserted, know the case against him: and thus the claim should in any event be struck out and leave to amend by introducing APOC5 should be refused.[6]Sir Sydney Kentridge QC, Mr Harry Matovu and Mr John McLinden appeared for the Claimants. Mr Philip Shepherd QC and Mr Bajul Shah appeared for the Kerman Defendants. Mr Michael McLaren QC and Mr Paul Sinclair appeared for the Fifth Defendant.[7]The hearing took place before me over 3 days starting on Wednesday the 27th July2005. On the evening before the hearing started, there were lodged with me 6 folders which included many documents, witness statements and exhibits. Two of those folders alone, rather unpromisingly entitled "Core Bundle", amounted to over 600 pages. Very extensive and detailed skeleton arguments were lodged and the various Defendants also lodged folders containing nearly 50 authorities, to be followed next morning by the Claimants' lodging folders containing over 30 authorities. (The initial estimate for length of hearing, I might add, had somehow been put at one day). In such circumstances – and not solely because it was the last week of the summer term – I considered whether, by reference to what, for example, was said by Lord Templeman and Lord Mackay of Clashfern in Williams and Humbert Ltd v W and H Trade Marks (Jersey) Limited [1986] 1 AC 368 pp 435-436, and p. 441, I should decline to proceed further with the matter as a strike out application. In the event, after an initial perusal of the written arguments I decided to proceed with the hearing substantively (and it was not in fact suggested to me at the hearing that I should not: although I will have to record hereafter some of Sir Sydney's points as to the overall approach to be adopted on applications of this kind). I did so not least because of my view that were I to accede to the applications to strike out, in whole or in part, then that either would avoid the need for, or would greatly reduce the length of, a trial involving what, on any view, would be complex and lengthy issues and evidence. In addition, the application for leave to amend itself involved consideration of the issues raised in the strike-out applications. Putting it another way, and adopting more modish language, I considered it proportionate, and more likely to further the overriding objective, to proceed to a full hearing. The factual background and pleaded case[8]Equatorial Guinea is a country of Africa. It is to be categorised as a friendly foreign state with regard to the United Kingdom. It has diplomatic recognition. It also is a member of the United Nations.[9]At the outset of his written and oral arguments, however, Mr Shepherd QC launched a sustained attack on the First Claimant, President Obiang, who has been President of Equatorial Guinea for many years. He described President Obiang as a "dictator". He said that his regime was one of the most brutal and oppressive in the world; and that the vast majority of the citizens of Equatorial Guinea were held in a state of subjection and abject poverty whilst President Obiang and his acolytes waxed rich. He alleged that the President in effect personally controlled the assets of the state (in particular, its oil resources) and the armed forces and ostensible organs of government for his own personal purposes and benefit. It is asserted that any opposition has been ruthlessly put down; and that there is also no possibility of a fair trial. He says that the thought that the English courts could or might grant damages of the kind claimed, or grant the discretionary remedy of injunctive relief, in favour of such a person is "absurd" and "beggars belief". Mr Shepherd points, by way of example, to reports of Amnesty International and the International Bar Association, as well as other materials put in evidence before me, to support his allegations.[10]I do not think that the outcome of applications of this kind can properly be determined by reference to such matters. These are allegations. President Obiang is entitled to contest them and to have them proved, to the extent relevant, at trial. I need not say more on this, however, because in the event Mr Shepherd accepted that; and he accepted (as is elementary) that contested allegations of fact of this kind cannot be resolved on interlocutory applications of this nature.[11]In such circumstances, I think it appropriate essentially to take the facts as they are alleged to be in APOC5. The opening paragraphs describe the Claimants and the Defendants. The Fourth Defendant, Mr Mann, is alleged to be the beneficial owner of the First and Second Defendants and to have had a career in military security work; and in that regard to have had a connection with the Third Defendant, who is described as a businessman. The Fifth Defendant, Mr Calil, is described as a businessman having extensive financial and commercial interests in Africa and knowing the Sixth Defendant. The sixth Defendant, Mr Moto, is said to reside in Spain. He is described as a citizen of Equatorial Guinea and at all relevant times a political opponent of President Obiang. It is alleged that he harbours ambitions to be President and has been party to previous coup attempts against the Claimants. It is said that he knew the Fourth and Fifth Defendants.[12]In paragraph 8 of APOC5 (under the heading "The Conspiracy") the following is pleaded:
"8. Between the months of March 2003 and March 2004 in England and other places, the Defendants agreed with each other and with other persons to combine with the common intention of causing injury and damage by acts which are crimes and also civil wrongs in England and Equatorial Guinea, namely: (1) unlawful force comprising murder, trespass to persons (including the First Claimant) and property; (2) unlawful damage to the property of the Claimants; (3) misappropriation of property of the Second Claimant (in particular oil installations within Equatorial Guinea); and (4) assault by a physical attack on the Claimants and their property by a well armed assault force of some 70 experienced former Special Forces soldiers who had served in the South African military ("the Mercenaries") and an advance group ("the Advance Group") comprising some 20 others, including experienced former South African special force soldiers who had gone to Malabo (the capital of Equatorial Guinea for the purpose of gaining intelligence and preparing for and participating in the attack. The said acts are referred to hereafter as "the Coup", which expression includes the acts, intentions and purposes referred to below. 8A The munitions which were to be used in the attack included (a) 61 AK rifles, (b) 20 light machine guns, (c) 10 rocket propelled grenade launchers and 100 rocket propelled grenade projectiles, (d) 2 mortars and 80 high explosive mortar bombs, and (e) 150 offensive hand grenades ("the Munitions"). The Defendants purchased the Munitions for the attack: (1) intending and knowing that their use would cause indiscriminate killing and very serious injuries to the Second Claimant's citizens and agents (such as members of its armed forces and constabulary) and destruction and serious damage to the Claimant's property and to its servants: (2) for the purpose of unlawfully (a) effecting the overthrow of the lawful government of Equatorial Guinea. (b) abducting or injuring or murdering the First Claimant. (c) taking possession and control for their own benefit of the Second Claimant's property and natural resources (including oil and gas resources) and (d) destroying or damaging the Second Claimant's property and chattels and (3) with a calculated view of (a) profiting financially and commercially form the Coup and (b) replacing the First Claimant with the Sixth Defendant (a citizen of Equatorial Guinea living in exile in Spain). The Claimants will hereafter refer to this combination and plan as "the Conspiracy". 8B In entering into the Conspiracy in England, the Third, Fourth and Fifth Defendants were committing criminal offences whether under the Foreign Enlistment Act 1870, the Criminal Law Act 1977 or otherwise. 8C Further the Defendants by their actions as set out below assaulted the First Claimant. 8D Further the Defendants acted as they did knowing that their actions were extreme, outrageous, unjustifiable and calculated to inflict physical harm and severe emotional distress on the First Claimant (see Particulars below). The Claimants will hereafter refer to the matters pleaded in paragraph 8 C above and this paragraph as "the Other Purposes"."
There then are pleaded acts said to have been done pursuant to the Conspiracy and the Other Purposes. These include the following allegations:
"10 In or about March 2003 and again in or about April 2003 the Fourth Defendant, acting for himself and the First and Second Defendants, met the Fifth Defendant in London. The Fifth Defendant asked the Fourth Defendant to meet the Sixth Defendant with a view to planning and effecting the Coup and the Other Purposes. 11 In or about April 2003 the Fourth Defendant with the Fifth Defendant met the Sixth Defendant in Madrid, Spain and agreed on behalf of the First and Second Defendants and himself to provide arms and logistic support (including mercenaries) to assist in effecting the Coup and Other Purposes. Regular meetings and communications took place thereafter between the Fourth Defendant and the Fifth Defendant in London and between the Fourth Defendant, the Fifth Defendant and the Sixth Defendant in Madrid. 12 In or about May 2003 the Fourth Defendant, acting for himself and the other Defendants met Servaas Nicolas du Toit ("
Mr du Toit") who was also trading as Triple Option Trading ("TOT") and acting on behalf of Military Technical Services Ltd ("MTS"), and secured Mr du Toit's agreement to assist with the Coup and Other Purposes, including selecting and employing or engaging or paying for some or all of the Mercenaries. 13 On or about 22 July 2003 the Fourth Defendant entered into an agreement and/or agreements with the Sixth Defendant ("the July Agreements") whereby the Sixth Defendant agreed (1) to ensure that substantial amounts of money belonging to the Second Claimant were paid to the Fourth Defendant or his nominees in consideration for effecting the Coup and the Other Purposes. (2) That the Fourth Defendant would be lucratively employed in Equatorial Guinea after having effected the Coup and Other Purposes; and (3) That the Fourth Defendant would be granted immunity from prosecution in Equatorial Guinea for any act in or associated with the Coup and Other Purposes."[13]There follow further allegations that the Fourth Defendant recruited and liaised with a Mr Crause Steyl, a pilot, with a view to his providing what is called "air logistical support" in order to effect the Conspiracy, including flying the Sixth Defendant to Malabo following a "successful assault on the Claimants." It is further alleged that the Fourth Defendant procured Sir Mark Thatcher to provide funds for chartering a helicopter for the use by Mr Steyl with regard to the coup attempt.[14]There then follows a section of the pleading relating to "Financing and Preparing for the Coup and the Other Purposes". It is said that finance came through the bank accounts of the First and Second Defendants, which themselves had been funded (so it is said) by the Third and Fifth Defendants, and others. Various other acts of preparation are also alleged, involving variously the Third Defendant, the Fourth Defendant and Mr du Toit. Written agreements made on behalf of the conspirators for the provision of "personnel" (in effect, mercenaries) and munitions for the Coup are relied on; as are certain alleged financing discussions and payments involving, among others, the Fifth Defendant. After particularising such allegations in paragraphs 14B to 25, this is said at para 25A:
"It is to be inferred that Third, Fourth, Fifth and Sixth Defendants had numerous communications with each other and with persons with whom arrangements needed to be made to prosecute the Coup and the Other Purposes. The Claimants reserve the right to provide further particulars following disclosure."
[15]There then follow paragraphs under the heading "The Execution of the Coup and the Other Purposes". These, among other things, allege that Mr du Toit and others in the Advance Group travelled to Malabo to join the rest of the Advance Group already there. It is alleged that the Fourth Defendant, with Mr Carlse and a Mr Horn, travelled to Harare in Zimbabwe to rendezvous with the mercenaries, take delivery of the munitions and then proceed to Equatorial Guinea to effect the Coup and the other purposes. It is also said that pursuant to the Conspiracy the Third and Sixth Defendants, with an associate of the Fifth Defendant, were flown via the Canary Islands to Mali to await news of the outcome and to proceed to Equatorial Guinea immediately if the Coup were successful.[16]In the event, as it is pleaded, Mr du Toit and other members of the Advance Group were arrested in Equatorial Guinea on or around 8th March 2004. On about the 7th March the Fourth Defendant, with Mr Carlse, Mr Horn and the mercenaries had been arrested and detained by the Zimbabwe authorities before they and the munitions could be put on the aircraft which was to take them to Malabo. Once the Third and Sixth Defendants heard of all this, they are alleged to have left Mali and been flown by Crause Steyl back to the Canary Islands, the Sixth Defendant then returning to Spain.[17]APOC5 then pleads a number of written statements made by the Fourth Defendant and Mr du Toit, which outline the role played by all the Defendants (and others) in the conspiracy. APOC5 also goes on to plead the terms of a letter dated 21st March 2004 written by the Fourth Defendant (after his arrest) to his wife and others: which, it is said, also shows that there was indeed a conspiracy and that the Third and Fifth Defendants (among others) were involved in it. Reliance is further placed on a written Basis of Plea offered by Mr Steyl and Mr Horn (when they pleaded guilty in Pretoria Magistrates Court on 17th November 2004 to criminal offences relating to the coup) as showing that the Defendants had participated in the alleged that conspiracy. Reliance is also placed on a plea offered by Sir Mark Thatcher on 13th January 2005 in the High Court in Cape Town, in the context of an indictment alleging that he had undertaken financially to assist the Fourth Defendant and Mr Steyl to charter a helicopter for planned use in mercenary activity in Equatorial Guinea; and on express admissions made by Sir Mark Thatcher as part of his Basis of Plea.[18]There then follows in APOC5 a section headed "Remedies". It is alleged in paragraph 40 that "as a result of the Conspiracy and attempt to affect the Coup and the Other Purposes the Claimants have suffered loss and damage." Particulars of Special Damage are pleaded as follows:
" PARTICULARS OF SPECIAL DAMAGE (1) Costs incurred in responding to the Conspiracy and Other Purposes (a) On 5-6 March 2004, the Second Claimant incurred costs in relation to the meetings in Angola referred to in paragraph 41 below in the total sum of Euro33,441 and US$603.72. (b) On or about 8 March 2004, the Second Cla imant commenced an investigation into the Conspiracy and suffered loss and damage in the expense of so doing, including (but not limited to) travel and accommodation expenses incurred by those involved in the investigation. Particulars of travel and accommodation expenses are provided in Schedule 1 hereto in the amount of Euro 710, 750.62. (c) Subsequently, the Claimants commenced actions for discovery against third parties in the Isle of Man and Jersey in order to establish the identity of participants in the Conspiracy for the purpose of pursuing civil proceedings against them to recover their losses. The total amount of cost incurred in such proceedings was £19647.62 (2) Costs incurred in the detention of suspects (a) Cost of food for suspected members for the Advance Group while in prison – CFA 1.1 million per month (currently CFA 17.6 million or approximately Euro26.831,02 in total and continuing) (b) Cost of medical expenses for treatment of suspected members of the Advance Group – CFA 2.3 million (approximately Euro3,506.33) to date. (c) Cost of special additional prison security for suspected members of the Advance Group – in excess of Euro12,000 to date. The Claimants reserve the right to add to these particulars prior to trial. (3) Cost incurred in the prosecution of suspects (a) Members of the Advance Group were put on trial in Malabo following their arrest. The trial was one of great importance since it involved the prosecution of many foreign nationals for serious offences and was attended by numerous members of the international media and monitoring groups. Accordingly, the Second Claimant specifically retained the services of outside counsel (Mme Lucie Bourthoumieux, an advocate and member of the French Bar, and her assistant) to advise and assist it in the prosecution of the Advance Group. Mme Bourthoumieux and her assistant were resident in Malabo for this purpose between June and September 2004 and September and December 2004 and were paid for their services by the Second Claimant. Particulars of the fees and disbursements incurred in respect of Mme Bourthoumieux and her assistant exceed E345,500. (b) A number of the Advance Group were unable to afford legal assistance for their defence. Under the Second Claimant's penal code an accused is entitled to free representation (at the cost of the Second Claimant) in such circumstances. The costs of such representation amounted to CFA 20 million. (4) Damage to the Second Claimant's commercial interests and infrastructure. As a result of the Defendants' activities the Second Claimant's commercial interests and infrastructure have been seriously and adversely affected. (a) A state of emergency existed between 8 and 20 March 2004. This affected the movement of the large number of foreign nationals who were employed or engaged in work to develop and exploit the Second Claimant's energy resources. (b) Further, as a result of the Defendants' actions, the security checks carried out by the Second Claimant on foreign nationals wishing to work in the Republic have been necessarily stringent and have affected the ability with which companies developing the Second Claimant's energy resources have been able to employ or engage skilled foreign workers. These matters have significantly disrupted the production of oil and related resources, which in turn has reduced tax and royalty revenues to the Second Claimant. Particulars of these losses will be provided in due course. (c) Furthermore, as a result of the Defendant's actions, projects for roads and other civil engineering works have been affected by delays resulting from the departure in the wake of the Coup of foreign nationals who were engaged on such projects. The Claimants' current estimate of the loss suffered thereby is approximately US$5 million. However, the Claimants reserve the right to add to or vary these particulars in due course. (5) Costs of increased security (a) As a result of the threat from the Defendants it was necessary to arrange an emergency transfer of army personnel to Malabo and to accommodate them between 5 and 20 March 2004. (i) The cost of purchasing pre- fabricated accommodation and other associated costs to accommodate these personnel was US$520,000. (ii) In addition, the costs of additional wages for police and army personnel, who would not have been deployed but for the Defendant's actions, together with additional costs of deployment costs was in excess of Euro120,000. (b) As a further result of the threat from the Defendants, in order to facilitate rapid communications amongst the armed forces, the police and other relevant areas such as the Presidential palace, the Second Claimant installed a communications system and a security camera network in Malabo at a total cost of Euro561,071.90."
[19]There is then pleaded what are said to be prior warnings of the coup from the Angolan authorities, and consequential steps taken. This is then pleaded: 43 "In the late evening of 7 March 2004, the Zimbabwe authorities reported to the Second Claimant's authorities that a large number of mercenaries had been arrested at Harare airport while loading arms en route for Malabo airport. However, as a result of the information which had been received from the Angolan authorities on 5 March 2004, the Claimants were aware that the Advance Group was still at large in Malabo, and because(1) there was little army presence on the island where Malabo is situated; and;(2) a surprise attack on the first Claimant by a well-organised and experienced group of armed mercenaries who had acquatinted themselves with the territory and local conditions had a realistic prospect of success It was feared by the Claimants that there was a serious risk that the Advance Group would still attack and kill, incapacitate or abduct the First Claimant and his family and take over the resources of the Second Claimant. 44. Between 8 and 20 March 2004 further investigations were carried out in cooperation with the authorities of Zimbabwe and South Africa. On or about 20 March 2004 it was believed that the immediate threat had been brought under control. During this period there was a state of emergency in Malabo. 43 (sic). As a result of these matters, the situation in Malabo between 5 and 20 March 2004 was for the Claimants one of great apprehension and fear of imminent attack. The First Claimant feared that he and his family were likely to be killed or suffer very serious injury in the course of any attack. As a result of this apprehension of imminent attack on himself and his family, the First Claimant suffered serious anxiety, distress and disruption to his personal life and work. Accordingly, the First Claimant seeks damages from the Defendants." A claim for exemplary damages and interest is then also made.[20]The final part of APOC5 is devoted to the claim for an injunction. It alleges in some detail that the Fifth Defendant was the mastermind and a principal funder of the conspiracy; it alleges that he had forged very close contacts with the Sixth Defendant; and alleges that, given the potential rewards, all the Defendants including the Fourth Defendant, when released from a four-year prison sentence imposed in Zimbabwe, will continue to work together to effect a coup by unlawful means, including the use of violence on the First Claimant and his family. Paragraph 49 (in its proposed amended form) then pleads as follows:
"49. Unless restrained by this Court the Defendants will make further such Coup attempts. Accordingly, the Claimants seek an injunction to restrain the Defendants and each of them whether by themselves or by their agents or otherwise howsoever from conspiring to effect or from carrying out or financing within the jurisdiction of the Court any attempt: (1) to use unlawful force on the Claimants or either of them; or (2) to murder, harm, assault, abduct or trespass on the person or property of the First Claimant or his family or any of the citizens of the Second Claimant; or (3) to injure or damage by unlawful means the property or commercial interests of the Second Claimant or any of its citizens; or (4) to misappropriate the property of the Second Claimant (in particular oil installations within Equatorial Guinea); or (5) to overthrow the recognised government of the Second Claimant by force or other unlawful means."
Damages and injunctions in the like terms are claimed in the prayer. The foreign litigation history[21]The pleas of guilt by Crause Steyl, Carlse, Horn and Sir Mark Thatcher have been already set out. As for the Fourth Defendant he was convicted on 28th July 2004 in Zimbabwe of attempts to purchase firearms contrary to certain Zimbabwean statutes. He was subsequently sentenced to 7 years imprisonment (reduced on appeal to 4 years). The crimes of which he was convicted did not extend to the organization of a coup. In his mitigation the Fourth Defendant asserted that he had sought to purchase the munitions from Zimbabwe Defence Industries in order to fulfil a contract to provide security for a diamond mine in the Congo (which mine was not then – and, as I was told, has still not been – identified). The present position of the Fourth Defendant is that he denies in any way being party to a conspiracy to procure a violent military overthrow of the Government of Equatorial Guinea.[22]Mr du Toit and other members of the Advance Group (and Mr Moto, in absentia) were prosecuted and convicted in Equatorial Guinea, after a trial, in October 2004. They were sentenced to terms of imprisonment, and ordered to pay costs and also substantial sums in damages to the state. The evidence filed before me indicated that there is an issue as to whether they received a fair trial and as to whether they suffered torture and ill-treatment while detained.[23]In the meantime, the Claimants on the 13th April 2004 had commenced proceedings in the Isle of Man in relation to the first two Defendants (the first being called "Logo Logistics Limited" in the proceedings) and another company, seeking Norwich Pharmacal type relief directed at the Royal Bank of Scotland. In the petition, it was stated that such relief was sought in the context of the Claimants wishing to initiate and commence appropriate criminal legal proceedings: although the accompanying affidavit by the Claimants' solicitor referred to intended civil proceedings, as well as criminal proceedings. The order was granted on certain terms on 14th April 2004; but it seems that no relevant documents or information were forthcoming. On 26th April 2004 the Claimants also obtained a similar Norwich Pharmacal order in Jersey: but it would seem that there too nothing of any use to the Claimants materialised.[24]On the 30th April 2004, however, an ex parte order was made in the Royal Court of Guernsey on the application of the Claimants. The order granted permission for use of documents and information supplied by the Bank to pursue civil proceedings. Documents and information were supplied pursuant to that order. Thereafter there were various further applications and inter partes hearings and stays were on occasion directed. The Kerman Defendants subjected the merits of the claims (and the Claimants' litigation methods) to strong attack. In the result the original order of 30th April 2004 was eventually discharged on appeal to the Court of Appeal of Guernsey (Civil Division) on 5th April 2005; the essential basis being that there had been no need for such an order to be sought, or granted, on an ex parte basis. The judgment of the Court delivered by Southwell JA conveniently sets out the procedural history, and I will not myself repeat it. The judgment is critical of the Claimants' conduct of the litigation. It also dwells at length on whether certain of the Fourth Defendant's written statements (which at first sight seemed to confirm the existence of a conspiracy) were true and admissible statements, given that the Fourth Defendant was now alleging that they had been extracted from him by torture and deception in Zimbabwe.[25]Special leave to appeal to the Privy Council has since been granted on 9th June 2005. In such circumstances, it is not, I think, appropriate for me to comment on the judgment of the Court of Appeal of Guernsey. I would, however, note these particular points. 25 1. In paragraph 70 of the judgment, that court indicated that the nature of the claims in the English action was such as to give rise "at least to a strong suspicion" that the civil claims had been put forward primarily as a means of securing information for the purpose of criminal proceedings in Equatorial Guinea or elsewhere or to "try and force the UK authorities" to institute such (criminal) proceedings. 25 2. The claim in the English Courts (at all events by reference to its then pleaded state) was described by the Court of Appeal of Guernsey as a "novelty". It was said in paragraph 71 that the then Particulars of Claim "do not go near to affording an appropriate foundation for the grant of such disclosure order"; and that "this court cannot regard the claim by the President as an individual as a serious claim" for the purposes of Norwich Pharmacal relief. The same was said by reference to the Second Claimant's claim for damages ("given the regularity of attempted coups against the President", as the Court put it). Doubt was also raised on the viability of the claim for injunctive relief. 25 3. It was not suggested to me that the hearing of the applications before me should be adjourned pending the decision of the Privy Council. I gather that the hearing of the appeal is some time distant.[26]As to the first point, I do not think it would be fair or right for me at this stage of the matter and on strike out applications, to make any assumption as to whether there is an improper collateral purpose on the part of the Claimants in pursuing these civil proceedings, as the Guernsey Court of Appeal suspected. As to the second point, my task is, in fundamentals, to approach these present strike out applications by reference to the facts pleaded in APOC5 (which was not, moreover, a form of pleading before the Guernsey Court). Further, I do not think that I can properly take into account, for the purposes of these strike out applications, disputed allegations of fact in the way that the Court of Appeal in Guernsey considered that it could – for example, in paragraphs 71-73 of its judgment – for the (quite different) purpose of assessing whether the original ex parte Norwich Pharmacal order made in the Royal Court could stand. The approach to be adopted.[27]I should make some initial observations.[28]First, Sir Sydney accepted that the matter was to be decided by me by reference to APOC5. He said that he stood by them; and no further application to revise APOC5 was (notwithstanding some suggestions to the contrary in the preceding written argument) made to me. However, he did understandably say that if APOC5 did disclose a reasonable cause of action at this stage, they might well thereafter be amended further in the light of answers to requests for further information, disclosure of documents and the like (a common-place, after all, in actions framed in conspiracy). He also pointed out that the Particulars of Claim had been through a number of drafts in part to meet req uests of the Defendants and in part to reflect the impact of orders and stays on the use of documents variously directed in the Guernsey Courts. I might add that Sir Sydney, briefly but courteously, was in fact critical of the approach of the Court of Appeal of Guernsey.[29]Second, I was not impressed, as an independent ground for strike out, by Mr McLaren's argument that APOC5 was unreasonably vague and under particularised: and that APOC5 was not a pleading which enabled the Fifth Defendant to know the case which he had to meet or was one to which he could reasonably plead a defence. Mr McLaren appended a detailed schedule of alleged deficiencies in APOC5 to his skeleton argument: and also subjected APOC5 to minute analysis, with a doubtless commendable insistence on grammatical exactitude. But I think that taken as a whole APOC5 does enable the Fifth Defendant to know the case he has to meet and that the pleading is sufficiently clear in that regard. No doubt it is susceptible to further particularisation in due course and to a request for further information: but that is a different point. Moreover it is notorious that in cases of what might be called covert conspiracies full relevant information may initially be lacking. I do not consider this ground in itself as sufficient to cause me to exercise my discretion to refuse leave to amend or to order a strike out.[30]Third, I was addressed at some length as to the principles applicable on applications to strike out and/or for summary judgment. I have borne these principles (as well as the requirements of Rule 3.4 and Rule 24) in mind. It is a very strong thing to drive a claimant from the driving seat and deprive him of the chance of proving his case at trial: and a strike out should only be ordered in a plain and obvious case. Moreover the usual approach is that if, on the facts alleged in a statement of case, it is not possible to give a certain answer as to whether the claim is legally maintainable then the matter ordinarily should go to trial to enable the relevant facts to be found: see X (Minors) v Bedfordshire CC [1995] 2 AC 633 at p741 (per Lord Browne – Wilkinson). A convenient summary of many of the relevant principles applicable to summary disposal (not limited to Rule 24) can be found in the judgme nt of Potter LJ in Partco Group Ltd v Wragg & Scott [2002] 2 LL.Rep 343 [2002] EWCA Civ 594 at paragraphs 27-28. Assault[31]I propose to deal first with the allegation of assault as formulated in APOC5. It is, of course, a claim solely made by President Obiang, the First Claimant. It is not, and cannot be, a claim by the Second Claimant.[32]As already noted, paragraph 8C shortly asserts that "the Defendants by their actions as set out below assaulted the First Claimant." At first sight, it is puzzling that it can be said that the First and Second Defendants – being limited companies – could assault anybody. Sir Sydney, however, explained that their liability – as well as of the other Defendants - is as joint tortfeasors, as having procured or incited the assault on President Obiang by individuals acting as principals (cf Blackstone's Criminal Practice (2005) para A5.11 at p86). I am prepared to accept that can be extracted from the facts and matters pleaded in APOC5.[33]What is pleaded with regard to assault is then particularized in paragraph 43, 44 and 43 (sic) of APOC5.[34]In my judgment, the pleaded facts (assuming them to be true) do not show a cause of action on this aspect.[35]The tort of assault requires an overt act indicating an immediate intention to commit a battery coupled with the capacity to carry that intention into effect: see the discussion in Clerk & Lindsell (18th ed) paras `13-13 to 13-14; R v Ireland [1998] AC 147 at pp 161-163 (per Lord Steyn).[36]The pleaded facts in my view do not begin to show that that was the case here. What it comes to is that the situation in Malabo (including the presence of the Advance Group) was one for the First Claimant of great apprehension and fear of attack; and that the First Claimant feared that he and his family were likely to be injured or killed in the course of such attack.[37]As it seems to me, this does not equate to and cannot be equated to the fear of an immediate application of force. There is no pleading, for example, that members of the Advance Group were immediately outside the presidential palace in Malabo – if that is where the President was – shouting threats, discharging firearms or the like. No proximity or immediacy as such is pleaded at all. There is no allegation that the Advance Group, or any other person involved, did anything (on the contrary, they were all apprehended before they could). Sir Sydney referred me to R v Constanza [1997] 2 CAR 492 . In that case (which, if the facts reoccurred, would probably now be charged under the subsequently enacted Protection from Harassment Act 1997) the appellant, who lived near to the victim, had subjected the victim to what nowadays might more usually be called a campaign of harassment: this included numerous letters (some delivered in person), watching and following the victim and telephone calls (some silent). The victim's evidence was that she thought that something could happen to her at any time. It was held on the facts of that case that the judge was entitled to leave to the jury the issue of whether there was an apprehension of immediate violence. It was stated that it was sufficient for the Crown to have proved a fear of violence "at some time not excluding the immediate future". It is to be noted that in that case the fear started on receipt by the victim at her home of a hand delivered letter, when there was no reason to assume that the appellant had departed before the victim read the letter.[38]As pointed out by the late Sir John Smith in his commentary on that case in 1997 CLR. 576, that decision still requires that the apprehension of violence includes violence in the immediate future. As he also points out, the question is not the immediate apprehension of violence; it is the apprehension of immediate violence (cf also Smith and Hogan Criminal Law (9th ed) at page 414). That is not the position here, on the pleaded facts: at most, they show an immediate apprehension of violence. They do not show an apprehension of immediate violence (and no facts are pleaded to justify such an allegation). No doubt immediacy in this context need not connote precise instantaneity: see R v Horseferry Road Metropolitan Stipendary Magistrate, ex. p. Siadatan [1991] 1 QB 260 (a case on section 4 of the Public Order Act 1986). But the requirement of apprehension of immediate violence does require (just as the legal definition says it does) immediacy. In this regard, it may also be noted that the pleading in para 43 of APOC5 adopts the word "imminent": which is not the same as "immediate".[39]I was referred to the first witness statement dated 5th July 2005 of Mr Mba, Minister of National Security for Equatorial Guinea, in support of the allegation of assault. But in my view it lends no such support. Rather it is to the same effect as APOC5: at best showing an immediate apprehension of violence on the part of President Obiang.[40]This is not the kind of allegation that would be responsive to disclosure of documents or further information provided by the Defendants. If assault is to be alleged, the necessary facts must be pleaded at this stage. They are not. The allegation of assault as set out in APOC5 is, in my view, not sustainable and should be struck out. Intentional infliction of harm by unlawful means.[41]Paragraph 43 of APOC5 pleads that the First Claimant suffered serious anxiety, distress, and disruption to his personal life and work. It was submitted (by reference to paragraph 8D of APOC5) that that is harm intentionally inflicted on the First Claimant by the Defendants using unlawful means: and that, it is said , is in itself a tort giving rise to a cause of action. I comment that, even if that were so, the pleading in APOC5 is very elliptic on this; and such a cause of action also is not reflected in the relief sought in the prayer. In this regard, however, Sir Sydney referred me to an article in 1999 LQR (Vol 115) 411 written by Philip Sales and Daniel Stilitz. He also referred me to certain comments of the Court of Appeal in Douglas v Hello! Limited [2005] EWCA Civ 595 , in particular at paragraph 174, which speaks approvingly of that article.[42]In my view, those comments and that article do not show that there is a free standing tort of this kind, overriding or supplementing in some way other torts of an established category such as, for example, wrongful interference with business or conspiracy (with which that section of the Douglas v Hello! Limited judgment seems to have been concerned) or even the tort strikingly established in Wilkinson v Downton [1897] 2QB 57 .[43]In the present case APOC5 does not plead that the First Claimant suffered any physical or psychiatric injury from the alleged matters: see paragraph 43 of APOC5, which makes explicit that the damages are claimed ("accordingly") by reference to the alleged distress, anxiety and disruption to his personal life and work. In such circumstances, it seems to me that APOC5 is advancing a form of tort which is not currently known to English law. Certainly, to my mind, the interesting article of Mr Sales and Mr Silitz does not establish the current existence of such a tort. That must also be so, as I see it, with regard to the Second Claimant as well as the First Claimant: although APOC5 does not in any case plead such a tort so far as the Second Claimant is concerned.[44]I was referred to some comments of Lord Hoffmann in Wainwright v Home Office [2004] 2 AC 46; [2003] UKHL 53 . There Lord Hoffmann cited a passage from his speech in Hunter v Canary Wharf Ltd [1997] AC 655 , in which he had said (at p.707):
"But as at present advised I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence"
. Lord Hoffmann went on to say (at p426): "Even on the basis of a genuine intention to cause distress I would wish … to reserve my opinion on whether compensation should be recoverable".[45]In my view, these comments do not provide a basis for the new tort for which the Claimants now contend. Such an argument (as Lord Hoffmann had himself noted) had in effect been mounted in Wong v Parkside Hospitals Trust [2003] 3 All ER 932 , [2001] EWCA Civ 1721 , where the requirement of physical or psychiatric injury was upheld by the Court of Appeal. That is authority binding on me. Sir Sydney did shortly refer me to an unreported interlocutory decision of the Hong Kong Court of Appeal (Yuen JA and A Cheung J) in Wong Tai Wai David v The Hong Kong SAR Government [2004] 1020 HKCU 1 , where it was suggested that it was arguable whether such a tort, sounding in damages, existed, at all events in Hong Kong. In my view, with respect, those rather tentative interlocutory comments in a Hong Kong case do not justify maintaining this head of claim in the present case in England.[46]I might for good measure add that paragraph 8D of APOC5 asserts that the acts complained of were pleaded to be "calculated" to inflict physical harm and severe emotional distress on the First Claimant. There is no actual pleaded allegation that they were intended to do so.[47]Accordingly I would also strike out the claims in this regard of the First Claimant and refuse leave to amend in this regard. Conspiracy[48]I turn then to the claim in conspiracy. In truth that has been the main battleground before me.[49]As is well known, there are two types of civil conspiracy. Both involve proof of an intent to injure. For the one kind, a combination involving a predominant purpose to cause injury, and from which actual damage results, establishes the tort: and this is so even if lawful means to effect the purpose are used. For the other kind, which for shorthand I will call an "unlawful means conspiracy", no predominant purpose to injure need be shown. It suffices that there is an intent to injure the claimant and that unlawful means are for that purpose used, thereby causing pecuniary loss: see the discussion in Michaels v Taylor Woodrow Developments [2001] Ch 493 , [2000] EWHC Ch 178 at p503 (para 26 of the Judgment), per Laddie J. That an intent to injure (albeit not a predominant intention to injure) is required in the unlawful means kind of conspiracy is borne out by (for example) the statements of the Court of Appeal, after a review of the authorities, in Kuwait Oil Tanker Co v Al Bader [2002] 2 All ER (Comm) 271 at paragraphs 118 and 120 of the judgment.[50]Three points need to be noted at this stage.50.1 First, the language and structure of APOC5 convey an allegation of an unlawful means conspiracy. Sir Sydney confirmed that. He expressly disclaimed any allegation of the predominant purpose kind of conspiracy.50.2 Second, the conspiracy alleged in APOC5 is specifically alleged to be also a criminal conspiracy. But a civil conspiracy is not co-extensive, as to its ingredients, with a statutory criminal conspiracy. Amongst other things, a statutory criminal conspiracy, unlike a civil conspiracy, does not require proof of overt acts made pursuant to the agreement (although frequently the prosecution seek to prove such facts as facts from which an agreement can be inferred); nor does it require proof of damage. Sir Sydney in fact disclaimed any proposition to the effect that because the conspiracy alleged in APOC5 was alleged to be criminal that in itself would give rise to a civil cause of action in this case.50.3 Third, for damages to be claimed for such a conspiracy, actual pecuniary loss must be shown. Damage is the gist of the action, and that damage must be established in the form of financial loss. Thus (for example) damage to reputation, or for distress, would not suffice: see Lonrho plc v Fayed (No 5) [1993] 1 WLR 1489 at p 1496 (per Dillon LJ) and at p1501 (per Stuart-Smith LJ)[51]The principal issue raised before me was this. Are the unlawful means relied on by the Claimants in this case required to be actionable at the suit of the Claimants as against at least one Defendant? Or does it suffice that they are unlawful, even if not actionable at the suit of the Claimants against any of the Defendants? Mr Shepherd and Mr McLaren argued for the former proposition. Sir Sydney argued for the latter.[52]Paragraph 8 of APOC5 pleads four heads of acts which would be both crimes and also civil wrongs actionable at the suit of the Claimants against the Defendants in England and Equatorial Guinea. But those are, as Sir Sydney accepted, proposed means by reference to which the alleged agreement was made. So far as overt acts actually carried out pursuant to the alleged agreement are concerned, he argued that there were in any event such acts actionable at the suit of the Claimant. But those acts as identified by him were, first, those alleged to constitute an assault: which I have held to be a demurrable claim; and, second, the facts alleged to constitute the alleged tort of intentional infliction of harm by unlawful means: which again I have held to be a demurrable claim. Indeed I have some difficulty in comprehending how the unlawful means said to be part of an unlawful means conspiracy can be founded on a tort which itself has a requirement for unlawful means: there seems to be an element of circularity in such a proposition.[53]In addition, however, Sir Sydney relied on the fact that (as alleged) criminal offences were committed as part of the means of the conspiracy: involving among other things, he submitted, incitement to murder or to commit criminal damage; and the preparing or fitting out, or assisting in preparing and fitting out, a military expedition to proceed against the dominions of a foreign friendly state contrary to (for example) s.11 of the Foreign Enlistment Act 1870. However, as to the various criminal statutes referred to by Sir Sydney and pleaded in APOC5, it was not submitted that in themselves they give rise to civil liability actionable at the suit of the Claimants.[54]Mr McLaren and Mr Shepherd therefore submitted that claims for damages by reference to these claims in conspiracy could not be sustained: if only because none of them, as pleaded, disclose an act which is actionable at the suit of the Claimants or either of them against any Defendant. They say that, because the coup was discovered, the acts in question can at most be said to amount to an attempt ; and of the other acts which were carried out – the hiring of aircraft, the travel to Africa, the acquiring of munitions, the financing etc – those are not in themselves civilly actionable maters (which Sir Sydney did not dispute). They relied on a number of authorities, in particular the decision of Laddie J in Michaels , as showing that actionability at the suit of a claimant with regard to the unlawful means is an essential constituent of the unlawful means conspiracy tort.[55]That Michaels is direct authority in support of that proposition is plain. It also is supported by the statement in the current edition of Clerk & Lindsell (18th ed) at para 24-121 which says:
"If however the overt acts alleged are not actionable in a civil action the plaintiff will fail to establish the cause of action". (A little later on in that passage, however, Clerk & Lindsell refers tentatively to a possible modification by stating: "
It has even been commonly suggested that if the act aimed at by the combination is criminal then it is a tortious conspiracy and that a combination to commit a crime is actionable (even if the injured party would have had no action in tort merely on the basis of the crime itself), provided of course damage is caused." The observations of Clerk & Lindsell at para 24-121 may, I add, be compared and contrasted with what is said at para 24-94 (p1348).) Further the decision in Michaels is consistent with and supported by the views – expressed not obiter but as a matter of decision – by Toulson J in Yukong Line Limited of Korea v Rendsburg Investments Corp of Liberia [1998] 1 WLR 294 at pp312-314 and by Cooke J in Mahonia Limited vJP Morgan Chase Bank [2004] EWHC 1938 (Comm) at paras 356-371, in the course of which judgment Cooke J expressly adopted the reasoning of Laddie J. These decisions clearly are highly persuasive, although not strictly binding on me.[56]However the authorities by no means speak with one voice on this subject. Different views - albeit either obiter or expressed as a matter of preliminary opinion - have been stated by, for example, Waller LJ in Surzur Overseas Limited v Koros [1999] 2 Lloyd's Rep 611 at pp616-617 where, in a full discussion, he expressed doubts as to the correctness of the proposition that actionability need be shown and said that at all events the point was "eminently arguable"; by Mance LJ (sitting as a judge of first instance) in Grupo Torras SA v Al- Sabah [1999] CLC 1469 at pages 214-2115 of the judgment, where Mance LJ indicated (obiter) that he "favoured the view" that actionability at the suit of the claimant was not requisite for the unlawful means relied on; and by the Court of Appeal (obiter) in Douglas v Hello! Ltd where it was said, at para 228: "It would be more consistent and more likely to lead to just results if any unlawful act could be "unlawful means". ( Michaels , however, had not been cited to the Court of Appeal). I was also referred to para 130 of the judgment of the Court of Appeal in Kuwait Oil Tanker Co v Al – Bader where it seems to be suggested that (for example) a crime may constitute unlawful means even if not tortious. Further, the definition of unlawful means conspiracy offered by the Court of Appeal in Al- Bader at para 108 of the judgment makes no reference to actionability at the suit of the claimant.[57]Perhaps the most extreme divergence of views on this point is to be found in the interlocutory decision of the Court of Appeal in Associated British Ports v Transport and General Workers Union [1989] 1 WLR 939 (a case of interference with business by unlawful means). There, one of the issues was whether the breach of statutory duty relied on had to be actionable at the suit of the plaintiff before it could constitute "unlawful means". Neill LJ rehearsed the arguments and authorities and then stated (p 955) that he saw "great force" in the submission that it must be (although declining to decide the point). Butler–Sloss LJ, on the other hand, saw "much force" in the opposite viewpoint, which she described as "strongly arguable" (p961). Stuart-Smith LJ adopted the same approach as Butler-Sloss LJ: indeed he found the submission which had appealed to Neill LJ as "contrary to both logic and authority" and that "at the very least it is strongly arguable" that where the tort relied on was a breach of statute it was not necessary that it should be actionable at the suit of a plaintiff (p965B – 966H). The case went to the House of Lords; but was disposed of on a separate point.[58]In the light of all these conflicting approaches, Sir Sydney submitted to me that, on summary applications of the kind before me, the appropriate course was to acknowledge that the point was a difficult and "eminently arguable" point of law; and accordingly should without more be left to be decided at trial, on the amended pleadings, when the full facts were known. That I agree is an approach which could (subject to the case of Powell v Boladz to which I will come) be adopted. But on the whole, and in the exercise of my discretion, I think I should try to tackle the point substantively. First, I have heard detailed argument on the point; second (and reflecting what I have indicated at the outset of this judgment) matters would potentially be greatly foreshortened were I to decide the point adversely to the Claimants; third, the issue in many respects has been argued before me almost as though it were a preliminary issue; fourth, the argument essentially has been conducted before me on the footing that the facts and matters set out in APOC5 are to be taken, for present purposes, as true.[59]My starting point is to agree with Laddie J that the test with regard to unlawful means should be the same in the context of the tort of conspiracy and the tort of unlawful interference with business: and that the principles of economic torts should be consistent with each other: see paras 22 to 25 of the Judgment in Michaels , which cite the relevant authorities supporting such a proposition (to which may now be added Douglas v Hello! Limited at para 227). However, it has to be said that some of the older cases in this field seem, to my way of thinking, almost irreconcilable: compare, for example, Chapman v Honig [1963] 2 QB 502 (where Lord Denning MR was in the minority) with Acrow (Automation) Limited v Rex Chainbelt Inc [1971] 1 WLR 1676 (where this time Lord Denning carried the other two members of the court with him).[60]Next, it seems to me to be necessary to seek to identify the rationale for the proposition that where unlawful means are relied on to establish the tort they must be actionable at the suit of the claimant.[61]I agree with the submission made on behalf of the Claimants that it is difficult to identify any authoritative base for such a proposition in the older authorities (notably, perhaps, the celebrated case of Crofters Hand Woven Harris Tweed Co Ltd v Veitch [1942] A C 435 ). It seems to be that the genesis of this view is to be found in the speech of Lord Diplock in Lonrho v Shell Petroleum Limited (No 2) [1982] AC 173. That speech, as is notorious, gave rise to difficulties in interpretation on other aspects. But Mr McLaren and Mr Shepherd focused on the observations of Lord Diplock at pp 185-189; and in particular at p188 G where, among other things, Lord Diplock posed the question:
"why should an act which causes economic loss to A but is not actionable at his suit if done by B alone become actionable because B did it pursuant to an agreement between B and C?"
. And a little later on (at p189D) he said:
"My Lords, in none of the judgments in decided cases in civil actions for damages for conspiracy does it appear that the mind of the author of the judgment was directed to a case where the damage causing acts although neither done for the purpose of injuring the plaintiff nor actionable at his suit if done by one person alone [my emphasis added] were nevertheless the contravention of some penal law."
Mr McLaren and Mr Shepherd understandably stressed the words I have emphasised: as did Laddie J. Those statements can, I accept, be said to be a pointer towards actionability being required for unlawful means.[62]Even so, and with all respect, I have some difficulty with the degree of emphasis placed by Laddie J in his reasoning with regard to those extracts from Lonrho v Shell (No 2) . He thought that the question posed by Lord Diplock operated as a principle of general application in this field (para 30 of judgment). But it is by no means obvious that is so: indeed, in Lonrho v Shell (No 2) the courts were on this aspect of the case not in fact dealing with a case of unlawful means conspiracy at all; they were dealing solely with a prospective case of predominant purpose conspiracy.[63]My second point of difficulty is that Laddie J thought that, if there was no requirement that the unlawful means must be actionable at the suit of the Claimant, then Lonrho v Shell (No 2) went off on a completely false point. For in that case there demonstrably were unlawful means involved (as alleged) – viz in the supply of oil to Rhodesia in breach of the criminal sanctions then in force. So, it is said, an unlawful means conspiracy could easily have been advanced, and there would have been no need to argue about predominant purpose at all: a view which strongly influenced Cooke J in the Mahonia case (at para 369). But again, with respect, and while I acknowledge again that is a point that can be made, I do not for myself think that it has anything like the force Laddie J and Cooke J give it: because in Lonrho v Shell (No 2) , as I read it, no intent of any kind directed at Lonrho had been alleged. It was not said that Lonrho had been targeted by Shell or BP. All that was being said, on this head of the claim, was that there was an actionable conspiracy where an unlawful act was done pursuant to an agreement.[64]In Lonrho v Fayed [1992] 1 AC 448, the House of Lords disposed of the perception that had arisen, from one reading of Lord Diplock's speech, to the effect that a predominant intent to injure needed to be shown in all cases of conspiracy: and confirmed that no such predominant intention need be shown in the unlawful means type of conspiracy.[65]In the course of his speech, Lord Bridge of Harwich (at pp 463 – 464) set out the relevant passages of Lord Diplock's speech, including the posed question which Laddie J regarded as conveying a general principle. Having so cited it, Lord Bridge then said (p464C):
"But this reasoning has no relevance to the second type of conspiracy which employs unlawful means"
. At first sight, and indeed at second sight, that seems to tell against there being a general principle of a kind applicable to both types of conspiracy. But another reading, which Mr McLaren advanced, is that Lord Bridge was indicating that such reasoning was irrelevant just because Lord Bridge was taking it that, for an unlawful means conspiracy, the unlawful means must be actionable in themselves.[66]In fact Lord Bridge went on immediately to cite a passage from the speech of Lord Devlin in Rookes v Barnard [1964] AC 1129 at p1204 where Lord Devlin had said "In the latter type … the element of conspiracy is usually only of secondary importance since the unlawful means are actionable by themselves". It would be wrong, perhaps, to build too much (either way) on that observation by Lord Devlin. As a matter of fact and practice his observation is doubtless right. But his use of the word "usually" perhaps conveys with it a suggestion that sometimes an unlawful means conspiracy will involve unlawful means which are not actionable by themselves; although it can equally be said (and Mr McLaren said it) that, grammatically, the last words of that sentence of Lord Devlin can be taken as connoting that actionability is always required (cf. para 37 of the Michaels judgment).[67]Lord Bridge went on to cite from other authorities. None of those citations, as Sir Sydney observed (correctly in my view), connoted a requirement that the unlawful means needed to be actionable at the suit of the claimant: and some (eg the citation from Viscount Simon LC in the Crofters case at p465C and from Lord Wright in that case at p 465 F-G) perhaps indicate the contrary. At all events, after these citations, Lord Bridge went on to say this:
" The reasoning in these passages is both clear and cogent. Where conspirators act with the predominant purpose of injuring the plaintiff and in fact inflict damage on him, but do nothing which would have been actionable if done by an individual acting alone, it is in the fact of their concerted action for that illegitimate purpose that the law, however anomalous it may now seem, finds a sufficient ground to condemn their action as illegal and tortious. But when conspirators intentionally injure the plaintiff and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests; it is sufficient to make their action tortious that the means used were unlawful."
[68]It is true that Lord Bridge in the first part of that passage refers to actionability. But that is in the context of discussing the first kind of conspiracy. There is nothing, at least nothing explicit, in the passage to indicate that in an unlawful means conspiracy the unlawful means need to be actionable at the suit of a claimant. Rather it is stated without equivocation in Lord Bridge's comments on the second kind of conspiracy that it was sufficient to make the action tortious "that the means used were unlawful". That perhaps can also be set in the context of counsel's competing arguments on this point – of Sir Sydney, then appearing for the plaintiffs, and of Lord Irvine of Lairg QC, for some of the defendants – as reported at p454 E and p460 C-D of the report. It is however right to say that Lord Bridge later emphasised (at p470F) in his speech that the only question of law being decided was the overruling of the Court of Appeal decision in the Metall case [1990] 1 QB 391.[69]Taken overall, the regrettable position is, as I see it, that there are statements in the various speeches in the cases on this topic in the House of Lords which are capable of being read either way.[70]There was, at all events, as I see it, no authority actually binding Laddie J to reach the conclusion that he reached: and, on the whole, I would not myself have read the various passages of Lord Diplock's and Lord Bridge's speeches as compelling a conclusion that the unlawful means must be actionable at the suit of the claimant. For myself, and absent binding authority to the contrary, I would have differed from this conclusion. I would have done so by reference to what I conceive to be the underlying rationale distinguishing the two kinds of tort. In the predominant intention kind of conspiracy it is actionable – even though no unlawful means are used – just because injury to the claimant is the predominant intention. In the unlawful means kind of conspiracy, there is no requirement for such predominant intention (although, and importantly, there is a requirement of some intention). But the simple – I suspect Mr McLaren and Mr Shepherd would say simplistic - view I would take is that it is actionable at the suit of a targeted claimant just because unlawful means are used.[71]I have two particular reasons for that.[72]First, I find it unattractive – and almost arbitrary – that an unlawful means conspiracy depends on the virtual happenstance of whether or not the unlawful means are actionable at the suit of the claimant. It seems – to me at least – odd that where the unlawful means involve a crime or breach of statute (not actionable at the suit of the claimant) then no actionable claim for conspiracy exists: but it will (assuming, of course, some intention to injure) if the unlawful means comprise an actionable tort. Further, where the unlawful means used are criminal, whether an actionable conspiracy then arises would seem to depend (on this argument) on whether or not the facts giving rise to the particular crime also would give rise to a cause of action in tort. Likewise, where the unlawful means used involve a breach of statute liability for conspiracy will depend on the happenstance of whether or not the particular statute (on its true construction) confers a civil right of action on the claimant as one of the class affected. I do not regard that as satisfactory. Of course, the standard response is based in particular on Lord Diplock's statements in Lonrho v Shell (No 2) – that matters should not be actionable where done by more than one person when they are not actionable if done by one person alone. But as to that, it seems to have been widely accepted that where the unlawful means involve a breach of contract it need not be a contract enforceable by the claimant (see, for example, per Stuart – Smith LJ in the Associated British Ports case at p 965 G). That does not fit with the argument in favour of actionability. A further illustration of the difficulties involved in the actionability approach can be found, in my view, in the case of National Phonograph Co v Edison- Bell [1908] 1 Ch 335 (cited by Mance LJ in the Grupo Torras decision). That was an unlawful interference with business case. There the fraud was practised on third parties, but the target, who suffered loss, was the plaintiff. Unless it be said in this context that fraud generally is a special case (and I ask, rhetorically, why should it be as compared to, say, criminality) there would be, on the argument of Mr McLaren and Mr Shepherd, and should have been, no cause of action: the third parties who were deceived suffered no loss and the injured claimant who suffered loss would have had no right of act ion for deceit practised on third parties. But the Court granted relief in that case. Indeed, I think it of note that Lonrho v Fayed itself involved what was said to be a conspiracy targeted against Lonrho, the unlawful means of which were alleged to be fraudulent misrepresentations made not to Lonrho but to the board of directors of the target company and to the Secretary of State. But no suggestion was made that the claim was demurrable simply for that reason.[73]My second reason (and reflecting to some extent what I have just said) for disagreeing with Laddie J is that it seems to me that his approach deprives the unlawful means conspiracy of virtually all practical value as a cause of action: for if the unlawful means are required to be actionable at the suit of a claimant then the claimant has his remedy by reference to the unlawful means themselves. Thus this approach, if right, would connote that the labours of the courts over the years on this have produced little more than a mouse. This is even mo re striking when one considers that (for obvious evidential reasons) the predominant purpose kind of conspiracy is in practice rarely pleaded and even more rarely proved.[74]Laddie J sought to explain this difficulty away by saying that an unlawful means conspiracy would still, in effect, have some "teeth"; because it would extend liability to a conspirator who has not done anything which would make him liable in his capacity as a sole actor. (He also suggested that it might impact on the question of aggravated damages). But I find it difficult, in practice, to think of likely examples. If a person(a) (A) has knowingly combined with a person(b) (B) where B's means are actionable at the suit of the claimant (C), then, in the ordinary case, A is surely likely to have liability as a joint tortfeasor. That the approach of Laddie J is likely to render this type of tort effectively valueless is – although Michaels was not cited – consistent with the comments of the Court of Appeal in Douglas v Hello! Limited at para 234 ("largely ineffective"), as well as in text books such as Street on Torts (11th ed) and Winfield on Torts (16th ed). Moreover, the ability, relied on by Laddie J, to bring an action in conspiracy against a person as a defendant, albeit one against whom no direct action otherwise would lie, does not seem to me to fit very well with - although I accept is not positively incompatible with – the general principle which Laddie J thought could be extracted from Lord Diplock's speech in Lonrho v Shell (No 2) . Why, on that approach and looking at it from the perspective of a defendant rather than of a claimant, should an "innocent" person, party to a combination, against whom on his own no action would lie, became liable just because he has combined with a person against whom an action would lie?[75]Laddie J was concerned (basing himself on the remarks as to the anomaly of the tort by Lord Diplock in Lonrho v Shell and the perceived need to keep such tort in proper confines) at the width that the tort might acquire if the unlawful means kind of conspiracy were not limited to those actionable at the suit of the claimant. He gave two examples. One involves a supermarket A seeking to drive custom away from supermarket B, with placards on vans urging shoppers to come to supermarket A. It is arranged with a haulage company that the vans are parked right outside supermarket B on double yellow lines, to drive the message home. A second example is where two delivery drivers decide to ensure that their service is better than their immediate competitor and accordingly they agree to break the speed limit when making deliveries. In each case, the unlawful means (crimes) are not directly actionable at the suit of the claimants. Laddie J thought that if in such a context an unlawful means conspiracy could be relied on that would be an unacceptable enlargement of the tort.[76]For myself, I do not share this difficulty. It must not be forgotten that some intent to injure is part of the tort; the claimant must be a targeted object. If there is a combination, targeted at C, which involves the use of criminal means to achieve the aim and cause loss, I do not consider it an unacceptable conclusion that C has a cause of action in conspiracy: it might be thought unacceptable if C did not. In any event, I would query the first example given by Laddie J. It seems to me that the unlawful acts should ordinarily be required to be part of the combination and not simply a casual by-product (see also the comments in Douglas v Hello! Limited at para 228). I would accept the second example given by Laddie J: but, unlike him, I do not find it at all objectionable that a cause of action in conspiracy might lie in such a scenario. Were it otherwise, the targeted competitor, who has suffered loss as a result of a combination aimed at him and which involves deliberate criminality, would be left without civil redress.[77]As to Laddie J's treatment in Michaels of the analogous tort of unlawful interference with business (paras 50-65 of the judgment) all I would say, with respect, is that I think it by no means conclusive in support of the view that Laddie J favoured as to the ambit of the tort of conspiracy; nor does it fit very well with Clerk and Lindsell's commentary at para 29-94, which I have already mentioned. Quite apart from what I have said above, it does not seem to me that Lord Diplock in the part of his speech in Lonrho v Shell (No 2) referred to by Laddie J was addressing this particular point at all. Again, I emphasise that no allegation that Lonrho was targeted was made and no allegation was made that damage to Lonrho was the direct and intended consequence of Shell's and BP's acts. Rather, Lord Diplock was addressing the submission as to whether a contravention of a particular statute by one individual can make him liable in tort to another who has suffered damage as a result of the contravention (see p186H-187B): that is, dealing with an innominate tort. Further, that among other things – as pointed out by the Court of Appeal in RCA Corp v Pollard [1983] Ch 135 - involves identifying a right of property said to be infringed, if the statute does not in itself confer a right of action. But that is not obviously relevant to the issue of unlawful means which Laddie J was addressing. It is also clear that Dillon LJ in Williams v Dept of Transport The Times 7th Dec 1993, cited by Laddie J at para 62 of his judgment, did not regard Lonrho v Shell (No 2) as in point in such a context.[78]Thus I would not, absent any other authority, have felt required to follow the decisions of Toulson J, Laddie J and Cooke J. I would have differed from them, and I would have associated myself with the (preliminary or obiter) views expressed by other judges to different effect on this issue. At all events, and notwithstanding the detailed reasoning of Laddie J, I would at the least have considered that the competing view remained eminently arguable and that Laddie J's reasoning did not conclusively dispose of the matter. I thus would have left this issue here to be decided at trial, by reference to the full facts as found, and would have granted leave to amend on this issue.[79]However on the third day of the hearing before me Mr McLaren drew my attention to the Court of Appeal decision in Powell v Boladz decided on 1st July 1997 and to be found reported at [1998] 1 LL Rep (Medical) 116. This case seems not to have been cited in any of the recent cases in this field; and Mr McLaren told me that he himself only came across it because it was referred to in a foot-note in the article by Mr Sales and Mr Stilitz which had been produced during the course of the hearing.[80]Powell v Boladz was concerned with a strike out application, in the context of a medical negligence claim. Part of the allegations made extended to an allegation that there had been a cover- up, alleged to involve the removal from the medical files of two original documents and the substitution of different documents. It was alleged that this discovery caused psychiatric injury to the claimants (suing as parents of the deceased victim) and also economic loss in the form of costs expended on an abortive appeal. Amongst other cases, Lonrho v Shell (No 2) and Lonrho v Fayed were cited.[81]In his judgment, Stuart-Smith LJ (with whom Morritt LJ and Schieman LJ agreed) gave "three answers" justifying striking out to the tort of conspiracy alleged under this head. The first was that no sufficient allegation that the conspiracy was directed at the plaintiffs was pleaded. The third was on a point of causation. The second answer was this (p126 of the judgment):
"Secondly, the unlawful act relied upon must be actionable at the suit of the plaintiff. It is not sufficient that it amounts to a crime or breach of contract with a third party (see Clerk & Lindsell on Torts 17th Ed. para. 23-80; Marinan v Vibart [1963] 1QB 234 & 528; Hargreaves v Bretherton [1959] 1QB 45; Lonrho v Shell [1982] AC 173 per Lord Diplock at p.186 etc). For this reason this form of unlawful act conspiracy adds little to the remedies available to a plaintiff."
[82]These comments cannot be said to be obiter dicta: they are part of the reasoning disposing of the particular point raised. Sir Sydney conceded that. But he nevertheless submitted that this decision is simply wrong. He submitted that the cases and passages briefly cited by Stuart-Smith LJ did not support the proposition he enunciated; that the issue being addressed required far more reasoning than was supplied: and that the conclusion was not otherwise sustainable. To this might be added the reflection that Stuart-Smith LJ seems to have reached a conclusion that was flatly contrary to the preliminary view expressed by him some eight years earlier in the Associated British Ports case (not cited to him) where he had stated the view that such a conclusion seemed "contrary to logic and authority". However, Stuart-Smith LJ's approach and citations in Powell v Boladz do bear a very close resemblance (including, indeed, reference to Lord Diplock in Lonrho v Shell at "p.186 etc.") to what the same judge had said in accepting a concession of counsel to that effect in Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department [1998] 1 LL. Rep 19 at p.32.[83]I asked Sir Sydney if he was submitting that I, a first instance judge, was free to depart from this Court of Appeal authority, and if so on what basis. He replied that he could not say that Powell v Boladz was a decision reached per incuriam. The point was raised before the Court and relevant authorities such as Lonrho v Shell (No 2) and Lonrho v Fayed had been cited. The general rule seems to be that a decision is to be regarded as per incuriam where a relevant case or statute is not cited and such a case or statute would be binding and compel a different decision from the one reached (although the discussion in Cross & Harris on Precedent in English Law 4th ed pages 148-152 perhaps suggests some room for manoeuvre at Court of Appeal level on this).[84]In the light of that concession (which I think was rightly made) I accept the submissions of Mr McLaren and Mr Shepherd. I regard myself as bound by the decision in Powell v Boladz and bound to hold that the unlawful means relied on must be actionable at the suit of the Claimants (and which, after all, would reflect the conclusion, in other cases, of Toulson J, Laddie J and Cooke J).[85]Ordinarily, where a first instance judge is bound by higher authority, it is not usually appropriate for him or her to engage on a discussion of or commentary on the law. But sometimes it may be appropriate (see Derby v Weldon (No 5) [1989] 1 WLR 1244), and, I have taken the view, as will have been apparent, that the present is such a case, and that it is only right that I should do so. First, the matter was very fully and carefully argued before me, in a way which does not find reflection in the short conclusion on the point in Powell v Boladz : indeed I rather understood that all counsel appearing before me were inviting me (whatever my view on the effect of Powell v Boladz ) to express my own views on the matter, particularly as to the decision in Michaels . Secondly, Sir Sydney argued before me that Powell v Boladz was wrongly decided on this point and also suggested that a subsequent Court of Appeal would regard itself as not bound by it. On that basis, and in the event that this matter before me were to go to the Court of Appeal, that court may wish to know that at least one High Court Judge, rightly or wrongly, would not have regarded this vexed question as settled by the first instance decisions in Yukong , Michaels and The Mahonia : albeit that judge does regard it as settled (at first instance) by the decision in Powell v Boladz .[86]At one stage Sir Sydney also suggested that the decision in Powell v Boladz must be regarded as superseded by the views subsequently expressed by the Court of Appeal in Douglas v Hello! Limited . That cannot be right. Those views so expressed were obiter; moreover (and for good measure) Powell v Boladz had not been cited. Nor am I prepared to accede to the invitation to rule that the point remains arguable since the matter might go higher: and so should not be struck out. There was no appeal to the House of Lords in Powell v Boladz : the position thus is quite different from that before Vinelott J in Derby v Weldon (No 5) . I have also considered the supplementary written arguments advanced on behalf of the Claimants by reference to Derby v Weldon (No 5) as to why I should not strike out at this stage: but in my view the position here is different from the one arising in that case, and those points as advanced are not such either as to require me, or to cause me in my discretion, not to strike out by reference to the decision in Powell v Boladz . A fortiori I can see no justification in granting leave to amend on this, given that the point sought to be raised is contrary to authority binding on me.[87]Accordingly, since, as I have found, no tort comprehending unlawful means actionable at the suit of the Claimants against any of the Defendants giving rise to pecuniary loss has been raised on the pleaded case set out in APOC5 it follows that the claims by the Claimants for damages for conspiracy must be struck out; and leave to amend on that issue is refused.[88]There is, quite apart from that, a further reason in my judgment why, so far as the First Claimant is concerned, his claim for damages for conspiracy must be struck out. That is because APOC5 does not sufficiently plead or identify any pecuniary or financial loss suffered by him.[89]Anxiety, distress and disruption will not do for this purpose, as the authorities show. So far as the particularised heads of special damages are concerned, as set out in paragraph 40 of APOC5, some in terms are confined to the Second Claimant. Others – costs of providing food and medical expenses with regard to the imprisoned members of the Advance Group, special or increased security, legal costs and so on – are clearly only recoverable (if at all) by the Second Claimant. APOC5 proceeds on the footing that the Second Claimant is distinct from the First Claimant. The only pleaded candidate possibly applicable to the First Claimant that I can identify is the claim for the costs of the legal proceedings commenced by the Claimants in the Isle of Man and Jersey (said to amount to £19,647.62). Since both Claimants were party to those proceedings I can see that, vis–a–vis the retained solicitors, the First Claimant may notionally have "incurred" liability jointly with the Second Claimant. But, as the authorities show, actual pecuniary loss is needed. Given that the First Claimant sued and sues as President of the State of Equatorial Guinea and given realities it seems inconceivable that in reality it will be anyone other than the Second Claimant that will have discharged such liability for the costs. Certainly APOC5 does not plead, nor was any evidence drawn to my attention to show, that the First Claimant has personally paid any part of such costs. On that footing, no pecuniary loss is pleaded or shown to have been caused to the First Claimant by the alleged conspiracy. That is sufficient to dispose of the point; but I would in any event query how such costs, arising from proceedings the Claimants have chosen to pursue and which are capable of being the subject of orders of the relevant courts, can be said to constitute damage flowing from the alleged torts. Other Relief.[90]I turn then to other objections raised by the applicants to this claim.[91]Mr Shepherd submitted that no relief in any event can be claimed or recovered by either of these Claimants, in what he described as a "wholly novel" claim.[92]Mr Shepherd's first submission was the claims for damages raised by the Second Claimant are not sustainable or capable of assessment by the English Court. Mr Shepherd's argument was that these claimed items are executive expenditure by the Second Claimant; that the decisions by the Second Claimant to undertake such expenditure will not be reviewed by the English courts; and that, in any event, there will be immense practical difficulties at any trial in reaching decisions on these claims.[93]In view of the decision I have reached on the question of damages by reference to the alleged conspiracy, I will deal with these points relatively briefly.93.1 First, I do not think that the doctrine of act of state, or some related doctrine, operates to support this submission. Mr Shepherd cited to me Luther v Sagor [1921] 3KB 532 and Dicey and Morris (13th ed) Vol 1 paras 5-40 in this regard. But here the claimants have voluntarily chosen to sue in the English courts. Having done so, they must expect their claims for damages to be scrutinised according to English legal principles. Further, no infringement of principles of comity can arise in such circumstances.93.2 Second, and as a corollary of this, there is clear authority that the principle of judicial restraint is sensitive to the issues involved in a given case and does not necessarily apply in a context where disputes can be resolved by judicial means: see Kuwait Airways v Iraqi Airways [2002] 2 AC 883 at 971-972 (C.A.)93.3 Third, I can at this stage see no insuperable difficulty to such issues being capable of being tried.[94]Mr Shepherd then went on to say that certain of the pleaded heads of loss and the damage are not recoverable: for example a claim for reduced tax revenues is not in principle, he said, recoverable since it would involve enforcement of a foreign state's revenue laws. He cited to me, in this regard, Dicey and Morris 13th ed. Vol I para 5-019. All I can say is that the claim for damages under this head is some way removed from the general position outlined in Dicey and Morris and I would have needed considerably more argument than I received to have decided at this interlocutory stage that this head of loss was unarguable on this ground. For like reasons I reject the submissions made that the claim for lost oil revenues is unarguable. Mr Shepherd also sought to say, by reference to some of the evidence, that the oil revenues belonged to GE Petrol, a company which, although owned by the state, was a separate legal entity. Accordingly, he says that on elementary English company law principles the loss lies with that company, not the shareholders. But the pleaded case extends to royalty revenues payable directly to the state (the Second Claimant) said to have been lost. Moreover, the question of the precise legal relationship between GE Petrol and the Second Claimant may require to be explored further; and, further still, it must not be overlooked that the conspiracy is alleged to have been directed at the Claimants, not GE Petrol: which may not itself necessarily have any corresponding right of recovery (cf. Johnson v Gore Wood and Co [2002] 2 AC 1 ).[95]Overall, these and various other objections raised by Mr Shepherd on the recoverability of damages (including reliance on Day and Kossuth , which I deal with below) did not lead me to conclude that such claims were wholly unarguable. I confess that, assuming the causes of action alleged were otherwise made out, I can see potentially powerful points available to the Defendants on issues of remoteness and causation. But such issues are notoriously fact-sensitive: and in my view in this case would have been best left for trial. The Injunctions sought.[96]I turn then to the injunctive relief claimed. I note that no damages in addition to, or in lieu of, an injunction are claimed (cf. s.50 Supreme Court Act 1981).[97]At one stage in his argument, as I understood him, Mr McLaren (although not Mr Shepherd) submitted that if (as I have found to be the case, on authority binding on me) damages can only be claimed in an unlawful means conspiracy by reference to unlawful means actionable at the suit of the claimants; and if further, as here, he said, had happened, the conspiracy was nipped in the bud before any unlawful acts, capable of causing loss, had been undertaken then the whole claim based on the alleged conspiracy must fall away in its entirety. He submitted that damage is the gist of the action and that pecuniary loss, caused by unlawful acts undertaken pursuant to an agreement, must be shown: otherwise the tort of conspiracy was not complete (see Marinan v Vibart [1963] IQB 528 and 238 at pp 238-9, per Salmon J, and Al-Bader at para 108). Put like that, at all events at this interlocutory stage, I cannot agree. The court has jurisdiction, in appropriate circumstances, to grant quia timet injunctive relief. If, for example, conspirators are overheard hatching their plan but that plan is then prevented from implementation by the obtaining of interim injunctive relief and other measures, it would seem most odd that the claimant could be said to have no cause of action at trial (e.g. to obtain a permanent injunction and costs) just because the interim injunction has operated to prevent the commission of unlawful acts causing actual pecuniary loss. However, I say no more on that point because Mr McLaren ultimately did not pursue it.[98]Mr. Shepherd, however, (whose submissions Mr McLaren adopted) advanced a more wide-ranging objection to the grant of injunctive relief. He relied heavily on the decision in Emperor of Austria v Day and Kossuth (1863) 32 G J and F 217 to support an argument that the English courts will not grant relief in aid of the prerogatives of a foreign sovereign or state. He says that the present claims do precisely that – indeed are designed to maintain President Obiang in power. Accordingly the courts, he says, will not entertain the granting of relief for such purpose.[99]Day and Kossuth was a most unusual case (Sir Sydney was, I think, justified in saying that it had a gr eater degree of novelty about it even than the present case). In that case the plaintiff as King of Hungary, suing both on behalf of himself and his subjects, sought, among other things, an injunction to restrain the defendants, who were in England, from manufacturing counterfeit bank notes, designed for circulation in Hungary. The Court of Appeal in Chancery upheld the grant of such an injunction.[100]It is not altogether easy to discern from the report precisely what cause of action was being alleged: although I think Sir Sydney was also justified in saying that nowadays the claim might well have been put as an unlawful means conspiracy. But, be that as it may, I do not think this authority supports Mr Shepherd's argument. If anything, in my view, it supports the Claimants' argument.[101]It is true that, at p. 238, the Lord Chancellor (Lord Campbell) indicated that "if the suit were instituted merely to support [the King's] political power and prerogatives", then the King would not be able to maintain his suit. Lord Justice Knight Bruce indicated at p. 250 that the English court would not be inclined to lend itself to a suit the main, if not sole, object of which was "the prevention of revolutionary designs"; and (at p.252) that the court would not grant an injunctive relief if the suit was founded upon prerogative rights. But it is plain from the judgments that property rights were being invoked. The King personally stood to lose revenues, accruing to him, if the genuine currency were undermined: his subjects would also suffer loss. That is made clear by the Lord Chancellor in his comments at p.240.

Lord Justice Knight Bruce (247) indicated that the actions of the Defendants were wrongful, stating:

"when I use the term "wrongful"
I mean "civilly unlawful" as regards rights of property, that is to say the public revenues, the fiscal resources, the pecuniary means of the realm of Hungary, which rights the plaintiff is entitled to represent here. He is, I apprehend, entitled therefore to the protection of this Court, according to its ordinary course in analogous cases, from the infliction of such a wrong ….". Lord Justice Turner said (at p.253): "we must consider, then, what is the nature of this injury. I think it is an injury not to the political but to the private rights of the plaintiff's subjects …. I agree that the jurisdiction of this Court in a case of this nature rest upon injury to property, actual or prospective, and that this Court has no jurisdiction to prevent the commission of acts, which are merely criminal or illegal and do not affect any rights of property, but I think there are here rights of property quite sufficient to found jurisdiction in this Court". (The words "actual or prospective" are, I might add, worthy of some emphasis.)[102]That the principles of Day and Kossuth continue to have life – indeed, perhaps have even been extended as to the notion of "property" – is illustrated by the decision in Kingdom of Spain v Christie, Manson and Woods Limited [1986] 1WLR 1120.[103]Reverting, then, to the pleaded case in APOC5, it seems to me that Mr Shepherd does not make good his argument: certainly not sufficiently so for summary relief. Here, rights of person and of property are , on their face, sought to be protected (see para 8 and para 49 of APOC5): and I cannot at this stage conclude, by reference to the pleaded case and current evidence, that the sole object and purpose of the proceedings is to uphold political privileges and prevent revolutionary design. For similar reasons, I cannot accept Mr Shepherd's submission that the acts sought to be prevented here are "merely criminal" (in the words of Lord Justice Knight Bruce). It may be that the acts set out in APOC5 would be criminal. But they are not merely so: because they also involve prospective intentional interference with or trespass to property and person: that is, actionable civil wrongs. I might add, in this context, that the English Court has jurisdiction to restrain, by way of in personam relief, not only trespass to property but also (within the jurisdiction of the Court) an assault on the person: see Egan v Egan [1975] Ch 218. I can see no obvious reason in principle why it should not also be so with regard to conspiracies to commit such acts formed within the jurisdiction.[104]Mr Shepherd and Mr McLaren then mounted a further attack on the claim for injunctive relief. First they said that the injunctions sought were unpoliceable and unworkable. I can accept that it is hard to conceive that an English Court would ever grant injunctive relief in quite the terms of paragraph 49 (5) of APOC5. But that is really a sweeping- up provision; and as to (1) – (4) I do not think that one can rule out – if the claim is otherwise made out and if the Court were in its discretion minded to grant any injunctive relief – that at trial some such injunctive relief might be granted, albeit subject, perhaps, to some drafting refinements. It is, moreover, to be noted that the injunctive relief sought is in all respects qualified by a requirement that the conspiracy or act of carrying out etc should be within the jurisdiction of the Court.[105]The next point raised by Mr Shepherd and Mr McLaren I found altogether more cogent. Here the First and Second Defendants are foreign companies, with no connection with England: save for the alleged beneficial ownership by the Fourth Defendant. As to the Fourth Defendant, he is currently in prison in Zimbabwe and, as I gather, likely to be so until 2007. The Sixth Defendant is resident in Spain, has no obvious connection with England and by reference to APOC5 has not even himself been party to any combination, or carried out any act, by personal presence in England. For his part, the Fifth Defendant, who strongly denies being party to any conspiracy as alleged, says that in any event he would never act in the manner asserted to be allegedly threatened in APOC5; and through Mr McLaren is (if the claim for the injunction were the only matter preventing the claim from being struck out as against him in its entirety) willing to give an undertaking to the Court in suitable terms. Overall, given what (on the Claimants' own case) has happened, this conspiracy –if there was one – is, Mr McLaren bluntly submitted, "dead". Accordingly injunctive relief can have no purpose.[106]In my judgment, that is a powerful point. But on the whole I do not think that I should, at this summary stage, accede to it. No other Defendant offers such an undertaking or sets out in evidence in these proceedings his position as to the future. Moreover, I do not think that at this stage I would be justified in simply rejecting the allegations made in paragraphs 45 to 48 of APOC5 as supporting the pleaded averment that, unless restrained, the Defendants would make further such coup attempts. I might also add that the overall thrust of the Defendants' arguments on this aspect of the case, if accepted, would mean that – even though it is not disputed that England is otherwise a proper forum for these pleaded claims – the Claimants (representing a foreign friendly state, recognized by this country) would be left prospectively with no civil redress at all against any of the Defendants, even if the Claimants' allegations are taken as true. As I have previously said, I cannot, at this early interlocutory stage, categorize such a res ult as demonstrably justified by reference to Mr Shepherd's allegations that President Obiang is a cruel and oppressive dictator: since that is in issue. Moreover, I think Sir Sydney was entitled to assert that a sufficiently arguable case, on the current evidence, of a combination to effect a coup (to which the Defendants were party) had been shown: indeed it could be said that its potential ultimate strength or weakness may depend to a significant extent on whether the various potentially incriminating written statements and admissions made by the Fourth Defendant, Mr du Toit and others are admissible and accurate. Conclusion[107]In summary therefore my conclusions are:107.1 The First Claimant's claims for damages, including exemplary damages, for assault and conspiracy and intentional infliction of harm by unlawful means must be struck out.107.2 The Second Claimant's claim for damages, including exemplary damages, for conspiracy must be struck out.107.3 Leave to amend in the form of APOC5 to particularise and pursue those particular claims is refused.107.4 The claim for injunctive relief, and all matters pleaded in APOC5 to justify such relief, should neither be struck out nor be the subject of summary judgment in favour of the Kerman Defendants; and leave to amend in the form of APOC5 on that issue is to that extent granted.[108]Although the Third Defendant and Sixth Defendant have issued no application notices, I propose to exercise of my own motion (see in particular CPR 3.8 (1) (4)) my powers to strike out those parts of the claim indicated above as against those two Defendants also.[109]I will hear counsel as to the form of order to be made in the light of this judgment. I will also hear counsel as to the future of this action against the Fifth Defendant, in the light of the undertaking offered; as to any applications for further directions: as to any applications for permission to appeal; and as to costs.

Cited in 3 later judgments