"If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration."
“(5) … On the sale of treasury shares to Trafigura, shareholders should be aware that the Board has never reviewed or approved this transaction and is still not aware of its terms. Under Russian corporate law, offshore subsidiaries are wholly controlled by the management of the company and management appoints directors of those companies. While this practice is completely alien to those of us that operates with a background of English or US corporate governance, Russian corporate practice is completely different with regards to the management of assets held by subsidiaries. In fairness to the management, the board has been pushing for the disposal of non core holdings and these treasury shares are certainly one of those. We would however, have preferred that this disposal had been discussed and the terms outlined to the board. This will be a future topic of discussion between the Norilsk Nickel Board and the management of the company. Needless to say, Gerard and I were unhappy with the way this transaction was conducted and believe it should have been fully reviewed by the Board regardless of the legal niceties.”
“3) Once it was clear that the offer to acquire the Rusal shares by the company was not likely to proceed, at least in the short term, the board discussed various alternatives for long term shareholder value creation including dividend policy, share buybacks (both on market and via tender), special dividends etc... At this time, the company is essentially debt free and through a combination of the proceeds of asset sales, operational cash flow and moderate borrowing can easily afford to return capital in some form to its shareholders. The Board has been advised by Citibank and UBS that Norilsk shares are undervalued compared to large international competitors and closing this gap is desirable. Given various sensitivities to the absolute level of cash dividends paid in any period of time, it makes sense to consider share buybacks, that all shareholders can participate in equally, as an efficient way of returning capital to shareholders. The majority of the board approved a program that will involve share buybacks at it Dec 28th meeting. Gerard and I believed it would have been preferable to delay this decision somewhat until a complete financial review of the long term strategic production plan and full assessment of the capital requirements of this plan has been complete.”
“Mr Deripaska told CNBC there is a price at which he would sell the stake, but he would not confirm if that price is$16.5m billion to$17 billion dollars”
“management’s right to vote the 8% stake, … The deal opens the way for management and Mr Potanin to form a block of shareholders with enough shares to wield effective control”
“I recognise that an ancillary jurisdiction ought to be exercised with caution, and that care should be taken not to make orders which conflict with those of the court seised of the substantive proceedings. But I do not accept that interim relief should be limited to that which would be available in the court trying the substantive dispute; or that by going further we would be seeking to remedy defects in the laws of other countries. The principle which underlies article 24 is that each contracting state should be willing to assist the courts of another contracting state by providing such interim relief as would be available if its own courts were seised of the substantive proceedings: see Alltrans Inc. v. Interdom Holdings Ltd. [1991] 4 All E.R. 458, 468, per Leggatt L.J. By going further than the Swiss courts would be prepared to go in relation to a defendant resident outside Switzerland, we would not be seeking to remedy any perceived deficiency in Swiss law, but rather to supplement the jurisdiction of the Swiss courts in accordance with article 24 and principles which are internationally accepted. In other areas of law, such as cross-border insolvency, commercial necessity has encouraged national courts to provide assistance to each other without waiting for such co-operation to be sanctioned by international convention. International fraud requires a similar response. It is becoming widely accepted that comity between the courts of different countries requires mutual respect for the territorial integrity of each other's jurisdiction, but that this should not inhibit a court in one jurisdiction from rendering whatever assistance it properly can to a court in another in respect of assets located or persons resident within the territory of the former.”
“I think that the branch of Barclays Bank in Douglas, Isle of Man, should be considered in the same way as a branch of the Bank of Ireland or an American bank, or any other bank in the Isle of Man which is not subject to our jurisdiction. The branch of Barclays Bank in Douglas, Isle of Man, should be considered as a different entity separate from the head office in London. It is subject to the laws and regulations of the Isle of Man. It is licensed by the Isle of Man government. It has its customers there who are subject to the Manx laws. It seems to me that the court here ought not in its discretion to make an order against the head office here in respect of the books of the branch in the Isle of Man in regard to the customers of that branch. It would not be right to compel the branch - or its customers - to open their books or to reveal their confidences in support of legal proceedings in Wales. Any order in respect of the production of the books ought to be made by the courts of the Isle of Man - if they will make such an order. It ought not to be made by these courts. Otherwise there would be danger of a conflict of jurisdictions between the High Court here and the courts of the Isle of Man. That is a conflict which we must always avoid. … It seems to me that, although this court has jurisdiction to order the head office here to produce the books, in our discretion it should not be done.”
“A plaintiff in an action before this court has served a subpoena and an order obtained ex parte under theBankers' Books Evidence Act 1879 upon Citibank at its branch office in London. Citibank is a New York bank with its head office in Manhattan and with branches all over the world. It is not a party to the proceedings. The subpoena and the order require Citibank to produce books and other papers held at its head office in New York, relating to transactions which took place in New York on an account maintained there by a Bahamian company. Citibank has moved to set aside the subpoena and to discharge the ex parte order on the grounds that in principle it exceeds the international jurisdiction of this court and infringes the sovereignty of the United States.”
“…in two respects this is an a fortiori case. Barclays was at least an English bank whereas Citibank is foreign. International law generally recognises the right of a state to regulate the conduct of its own nationals even outside its jurisdiction, provided that this does not involve disobedience to the local law. But banks, as I have already said, are in a special position. The nature of banking business is such that if an English court invokes its jurisdiction even over an English bank in respect of an account at a branch abroad, there is a strong likelihood of conflict with the bank's duties to its customer under the local law. It is therefore not surprising that any bank, whether English or foreign, should as a general rule be entitled to the protection of an order of the foreign court before it is required to disclose documents kept at a branch or head office abroad.”
“… is, therefore, also an exercise of sovereign authority and not merely a condition of being allowed to take part as plaintiff or defendant in an English trial. In the United States there is a general right to discovery from third parties but the fact that this process is characterised as discovery does not alter its nature for the purposes of international jurisdiction. In addition, the policy grounds for the restraint enjoined in Reg. v. Grossman, 73 Cr.App.R. 302 apply with equal force to discovery under Bankers Trust Co. v. Shapira [1980] 1 W.L.R. 1274.”
“seems to me that in a case like this, where alternative legitimate procedures are available, an infringement of sovereignty can seldom be justified except perhaps on the grounds of urgent necessity relied upon by Templeman J. in the London and County Securities Ltd. v. Caplan (unreported)”
“35. Although this requirement of involvement or participation on the part of the party from whom discovery is sought is not a stringent requirement, it is still a significant requirement. It distinguishes that party from a mere onlooker or witness. The need for involvement (the reference to participation can be dispensed with because it adds nothing to the requirement of involvement) is a significant requirement because it ensures that the mere onlooker cannot be subjected to the requirement to give disclosure. Such a requirement is an intrusion upon a third party to the wrongdoing and the need for involvement provides justification for this intrusion. 36. It is not the only protection available to the third party. There is the more general protection which derives from the fact that this is a discretionary jurisdiction which enables the court to be astute to avoid a third party who has become involved innocently in wrongdoing by another from being subjected to a requirement to give disclosure unless this is established to be a necessary and proportionate response in all the circumstances: see John v ExpressNewspapers[2000] 1 WLR 1931 . The need for involvement can therefore be described as a threshold requirement. The fact that there is involvement enables a court to consider whether it is appropriate to make the order which is sought. In exercising its discretion the court will take into account the fact that innocent third parties can be indemnified for their costs while at the same time recognising that this does not mean there is no inconvenience to third parties as a result of becoming embroiled in proceedings through no fault on their part.”
“93 … The requirement of necessity was also considered by King J in Campaign Against Arms Trade v BAE paragraphs 15-20; it was argued on behalf of the defendant in that case that this test was not met where the claimant had failed to exhaust other available avenues through which the information might be obtained. King J observed that that was to put the matter "too high" and to put the discretion of the court into too much of a straitjacket. He considered that the court was entitled to have regard to all the circumstances prevailing in the particular case including the size and resources of the applicant, the urgency of its need and to obtain the information it requires and any public interest in its having its needs satisfied. 94 … The intrusion into the business of others which the exercise of the Norwich Pharmacal jurisdiction obviously entails means that a court should not, as Lord Woolf in Ashworth made clear, require such information to be provided unless it is necessary. But in our view, there is nothing in any authority which justifies a more stringent requirement than necessity by elevating the test to the information being a missing piece of the jigsaw or to it being a remedy of last resort. We agree in this respect with the views expressed in Hollander Documentary Evidence, 9th edition at paragraph 5-26. Moreover it would be inconsistent with the flexible nature of this remedy to erect artificial barriers of this kind. In our view the approach of King J in Campaign Against the Arms Trade is to be preferred”
“It is true that in some of the cases the word "necessary" has been used, echoing or employing the language of Order 24, rule 13 of the Rules of the Supreme Court. But, as Templeman LJ observed in British Steel Corporation v Granada Television Limited[1981] AC 1096 , 1132, "The remedy of discovery is intended in the final analysis to enable justice to be done". Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straightforward and available means of finding out, it will not be reasonable to achieve that end by overriding a duty of confidentiality such as that owed by banker to customer. If, on the other hand, they have no straightforward or available, or any, means of finding out, Norwich Pharmacal relief is in principle available if the other conditions of obtaining relief are met. Whether it is said that it must be just and convenient in the interests of justice to grant relief, or that relief should only be granted if it is necessary in the interests of justice to grant it, makes little or no difference of substance.”
“…Norwich Pharmacal does not provide a general right of discovery … the action cannot be one used for wide-ranging discovery or the gathering of evidence and is strictly confined to necessary information … ”
“I do not understand Hoffmann J to be stating that a Bankers Trust order must be as specific as a subpoena in all cases, and would respectfully disagree with him if he had. No doubt the degree of specificity required will differ according to the facts of each case and those facts will include the relationship between the person against whom the order is sought and the other persons against whom the claims are made. The court must in this, as in all other exercises of its discretionary powers, seek to achieve a just balance between those who seek such orders and those against whom they are sought. In striking such balance it is necessary to consider the onerousness of compliance with the order sought without being tied down by rules relating to subpoenas.”