CIVIL APPEAL NO. 3 OF 2000

 HIS ROYAL FHGHN,ESS PRINCE JEFRI BOLKIAH             Appellant

AND

THE STATE OF BRUNEI DARUSSALAM AND                   Respondents

THE BRUNEI INVESTMENT AGENCY

CIVIL APPEAL NO. 4 OF 2000

THE STATE OF BRUNEI DARUSSALAM AND                   Appellants

THE BRUNEI INVESTMIENT AGENCY

AND

HIS ROYAL HIGHNESS PRINCE JEFRI BOLKIAH               Appellant

AND OTHERS

CIVIL APPEAL NO. 5 OF 2000

FUS ROYAL IRGHNESS PRINCE MUDA ABDUL HAKEEM      Appellant

AND

THE STATE OF BRUNEI DARUSSALAM AND                   Respondents

THE BRUNEI INVESTMIENT AGENCY

Before: FUAD, P., CONS, J.A. AND SILKE, J.A..

Dates of Hearing : 1, 2, 3 and 4 MAY, 2000.

Date of Judgment: 11 MAY, 2000.

JUDGMENT

FUAD, P.:

INTRODUCTION

In the action out of which these 3 appeals arise, the plaintiffs are the State of Brunei Darussalam ("the State") and the Brunei Investment Agency ("BIA") which was established in 1983 by the Brunei Investment Agency Act, Cap. 137. The defendants are His Royal Highness Prince Jefri Bolkiah (First Defendant) and 71 other defendants, including Prince Jefri's son, His Royal Highness Prince Muda Abdul Hakeem, as the Third Defendant.

By their action instituted by a writ filed on 21 February 2000, the plaintiffs seek relief in respect of the misappropriation of funds which were the property of the State and BIA. The claims against Prince Jefri are founded on breach of his fiduciary duties as Minister of Finance and as Chairman of BIA. He was the Minister between 1986 and 1997 and Chairman from the establishment of BIA until July 1998.

In broad terms it is claimed that in breach of his fiduciary duties, Prince Jefri misappropriated sums exceeding US$28 billion which belonged to the State, and under the control of BIA, and caused them to be paid into accounts in his name, or which belonged to him. The money was then paid away. The plaintiffs claim these sums and seek an account of the destination/application of a further US$13.5 million of the transfers made through the Prince's accounts to persons unknown. A claim is made for the recovery of any sum shown to have been misapplied. The claims are primarily proprietary, but tracing claims are also made.

The only other defendant with whom we are presently concerned is Prince Hakeem, Prince Jefri's eldest son. He was a director of some of the companies which are also defendants and which, it is claimed, hold assets bought with money belonging to the plaintiffs. He was also a director and shareholder of certain local and foreign companies owned and controlled by his father. The plaintiffs' case is that sums totalling about US$1.081 billion, on which they have personal and proprietary claims were transferred to Prince Hakeem from accounts controlled by Prince Jefri.

On 21 February, 2000, Sir Denys Roberts, C.J., being satisfied that the plaintiffs had a good arguable case, gave a worldwide Mareva injunction with ancillary orders designed to make it effective, ex parte, against all the defendants. Later, on the same day, in the High Court of England and Wales, sitting in Bristol, Jacob, J. also made a freezing order without notice, but limited in its application to that jurisdiction.

We are concerned with those terms of the Chief Justice's Order which were the subject of three summonses by which Prince Jefri sought certain variations of the Order. The reasons why the Chief Justice exercised his discretion in the way he did are given in his judgment of 14 March 2000. With the consent of the parties, we heard the two Princes' appeals together, followed by the plaintiffs' appeal.

The parties to the respective appeals have reminded us of the limited powers of an appellate court where an appeal concerns the exercise of a discretion by a judge. I do not think I need set out the principles involved, as re‑stated so clearly in Hadmor Productions v. Hamilton [1983] 1 AC 191. Of course, I have borne these principles firmly in mind when approaching the issues which arise in each of these appeals.

APPEAL NO. 3 OF 2000

Act") on the conduct of his defence to the action and (b) his privilege against self-incrimination.

Section 12 of the Act is in the following terms –

12(1) Except for the purpose of the performance of his duties or the exercise of his functions or when lawfully required to do so by any court or under the provisions of any written law, no director, officer or employee of the Agency shall disclose to any person any information relating to the affairs of the Agency or any person* [* I think this must be a misprint for "information".] which he has acquired in the performance of his duties or the exercise of his functions.

(2) Any person who contravenes the provisions of sub‑section (1) of this section shall be guilty of an offence under this Act and shall be liable on conviction to imprisonment for 3 years and to a fine of $5000.".

It was submitted to the Chief Justice that these provisions created immense difficulties for Prince Jefri, who had been chairman of BIA at the material time, in the conduct of his defence to the action. He could not, under threat of imprisonment, properly defend himself. He could not give his advisers proper instructions at any stage of the proceedings. Nor could he seek evidence or assistance from potential witnesses who were embraced by the section. Indeed, he was prevented, by its provisions, from giving evidence in his own defence.

For these reasons, it was submitted that an order should be made staying all further proceedings in the action until the law was amended to make it clear that no offence was committed under section 12 of the Act by any current or former director, officer or employee of BIA if he disclosed information for the purposes of legal proceedings.

While not accepting that any risk of the kind asserted would be run by any of the people mentioned in section 12 in view of the wording of the section itself, the plaintiffs' solicitors offered undertakings which they suggested would allay any legitimate fears. When the summons was heard by the Chief Justice, more detailed undertakings referring to section 12 were offered. They appear with minor variations in the final version of the Order which incorporates all the amendments. The undertakings were in these terms –

"Undertakings given to the Court by the Attorney General

(1) That no prosecution will be brought against any of the Defendants or their legal or other professional advisers pursuant to section 12 of the Brunei Investment Agency Act in respect of the disclosure by them of any information relating to the affairs of the Brunei Investment Agency provided that such disclosure is made inter alia, for the purposes of the present proceedings or any related proceedings (including for the purposes of complying with any Orders of the Court, providing discovery, giving evidence, or obtaining evidence from potential witnesses); and

(2) no prosecution will be brought against any person pursuant to section 12 of the Brunei Investment Agency in respect of the disclosure by them of information relating to the affairs of the Brunei Investment Agency provided that such disclosure is made to a Defendant to these proceedings or his legal or other professional advisers inter alia for the purpose of assisting the Defendant in the defence of these proceedings or any related proceedings or the purpose of giving evidence for use in these proceedings or any related proceedings.

is said, would inevitably commit offences contrary to section 12 of the Act. The undertakings were, it was contended, of uncertain value, and of doubtful legal effect and constitutional validity. Potential witnesses would be deterred by the daunting effect of the section.

Moreover, since Law Officers had a duty to uphold the law, their discretion not to prosecute was subject to review by the courts as shown by R. v Commissioner of police, exparte Blackburn [1968] 2 QB 118. The undertakings here were a marked departure from constitutional principles. If a prosecution were to be instituted, it was uncertain what view the court would take of the effect of the undertakings. Moreover, it was not unknown for promises not to prosecute to be broken, as happened in Harris [1991] 1 HKLR 389.

It was urged upon us, that unless the operation of the order was stayed, Prince Jefri and his advisers would be unfairly forced into becoming serial offenders under section 12 if the Prince were to be properly defended. Potential witnesses, it is suggested, might be inhibited from helping the defence because the Prince's advisers would not be able to assure them that the undertakings were effective. Other advisers might give them similar advice. Because of section 12, the proper preparation of the Prince's defence was effectively prejudiced, however small the risk of prosecution might be.

Miss Montgomery submitted that unless section 12 is amended to cover a situation like the present (and in this jurisdiction amendments could easily and swiftly be made) it would only be fair to grant the stay which had been sought.

Counsel also relied on A.G. of Trinidad and Tobago [1995] 1 AC 396 for the proposition that a pardon can only be granted for offences already committed and not in relation to offences not yet committed.

I must say that I find it very difficult to imagine that on the true construction of section 12 of the BIA Act, a person who sought advice as to how he should obey the disclosure order would be guilty of a contravention of section 12 when giving instructions to a legal adviser which might contain some information relating to the business of the Agency, to the extent necessary for him to be properly advised.

I have to say that, with due respect, that I regard the suggestion that a legal adviser in that situation is in jeopardy of being held to have committed an offence under the section as fanciful. In any event, as Mr Pascoe points out, professional privilege and obligations of confidence would be involved.

If I may say so, I think Mr Pascoe is right to put the following propositions, in question form, which appear in his helpful outline submissions

" 19. The proposition can be tested relatively simply. Suppose (in a situation not related to the present case at all), a former employee of the BlA were charged with an offence under s. 12. Could it seriously be suggested that for him to consult his legal advisers, and to instruct them as to his potential defences, and for them to advise him about such matters, automatically amounted to the commission of further offences by the former employee and his advisers under section 12?

20. The position is even clearer in relation to a civil case. Suppose the BIA had commenced civil proceedings against a former director, e.g. for an injunction restraining disclosure of confidential information. Could it seriously be suggested that for that director to consult his legal advisers and to instruct them as to potential defences, automatically amounted to the commission of offences by him and his advisers under section 12?

In my view, he was entitled to observe: "These questions have only to be asked to be answered."

section 12 at rest if they really were worried about their position. It does not envisage that offences are committed by those who disclose information for the purposes only of the present and any related proceedings. The Attorney General is not indicating that offences under section 12 will never be prosecuted. The undertaking should allay the fears of the most timid of souls, if their fears are genuine.

The position of potential witnesses who are or were directors, officers etc. of BIA is different. I do not wish to go into questions relating to their continuing obligations of confidentiality, a difficult area of the law, because it is not necessary in view of Undertaking (2). If the disclosure of information relating to the affairs of BIA is made to a defendant or his professional advisers so that he may be assisted in defending himself in the present or related proceedings, he cannot be prosecuted. This seems to me that the Attorney General has appreciated that it would be unfair if a defendant were prejudiced by any genuine apprehension a potential witness may have about his position.

I entertain no doubt at all that the Attorney General had ample power to give the undertakings, under section 81(2) of the Constitution and sections 374‑379 of the Criminal Procedure Code. He can, of course, institute or discontinue criminal proceedings at any time. The undertakings were given in the public interest so that concerns expressed about the effect of section 12 would not prejudice a defendant in the preparation of his defence.

In A‑G of Trinidad and Tobago v Lennox Phillip [1995] 1 AC 396, the Privy Council was concerned with a pardon granted under the Constitution by the Acting President of the country. The Judicial Committee held that the constitutional power under which the Acting President had acted, did not allow him to grant a pardon to take effect at an uncertain time in the future, purporting to pardon offences committed in the meantime. As I see it, the Attorney General was not purporting to grant a pardon ‑ he was exercising lawful powers under the Constitution and the Criminal Procedure Code so that everyone would know where they stood. I have not been persuaded that he acted unlawfully or improperly.

If a person holding the Office of Attorney General were to break either undertaking, solemnly given to the Court, the Court possesses ample power to treat any prosecution that results as an abuse of the process of the Court and to decline to let it proceed, as well as punish him for contempt.

In my judgment the Chief Justice was right not grant a stay on grounds relating to the effect of section 12 and to the legality and effectiveness of the Attorney General's undertakings.

The Chief Justice's Order, when it was first made, contained an undertaking by the plaintiffs that any information provided by the defendants under compulsion of the order would be used solely for the civil proceedings and would not be used by the Public Prosecutor or the Anti‑Corruption Bureau "ACB" in any criminal investigation or proceedings against any of the defendants.

Prince Jefri sought to have the Order amended so that his privilege against incrimination was preserved intact. Alternatively, the protection so far accorded, should be radically improved by requiring the plaintiffs to demonstrate that effective steps had been taken to ensure that any information given by the Prince would not be disclosed to the ACB, the Public Prosecutor or any prosecuting authority.

additional paragraph relating to self‑incrimination designed to elevate the status of the undertaking into an order of the Court.

The Chief Justice rejected the Prince's submissions and accepted the amendments to the Order in the form proposed by the plaintiffs. In the final version of the Order, paragraph 2.36 is in these terms-

"2.36 PROVIDED THAT no disclosure made in compliance with this Order shall be used in evidence in the prosecution of an offence alleged to have been committed by any of the Defendants or any spouse of any individual Defendant or the directors, officers or employees of any corporate Defendant and no use shall be made in any such prosecution against a Defendant or any such other person of evidence obtained as a direct or indirect result of such disclosure."

And in Schedule 8 occurs the following –

"Further Undertaking given to the Court by the Plaintiffs

(1) The Plaintiffs undertake that any information provided to them by any of the Defendants under compulsion of this Order will be used solely for the purposes of these proceedings and will not in any circumstances by used by the Public Prosecutor or the Anti-­Corruption Bureau to commence or pursue any criminal investigation or criminal proceedings in Brunei against any of the defendants, any spouse of any individual Defendant or any director, officer or employee of any corporate Defendant;"

In his judgment the Chief Justice accepted that the privilege against self-incrimination was a cardinal principle under the common law. He was satisfied that the defendants and their spouses would be adequately protected by the amendments made to the original order. He stated that he did not think it proper to require the Attorney General to satisfy the Court that he had taken steps to ensure that information and documents disclosed by the Prince under the order would not be passed on to the Public Prosecutor, a requirement sought by the Prince. As well as conceiving that the order sought was beyond the powers of the Court, he thought it was not a practical proposal and was unrealistic. The Attorney General was the Public Prosecutor and, either in person or through his nominees conducted all civil claims by and against the State. It would not, he thought, be practical, even if there were power to do so, to order the Attorney General in one capacity to ignore information which came to him in another.

By his appeal, Prince Jefri challenges the Chief Justice's approach to the privilege, It is contended on his behalf that the Chief Justice should have held, as a matter of law, that the privilege could only be modified or abrogated by statute and not by any judicial decision which purported to give some different protection. The privilege should have been preserved intact.

Reid v. Howard (1995) 184 CLR 1, a decision of the High Court of Australia from the Court of Appeal of New South Wales, was relied on, a decision the Chief Justice declined to follow. The Chief Justice mentioned the decision of the House of Lords in A.T. & T. Istel Ld. v. Tully and Another [1993] AC 45 as an example of an English decision where orders or undertakings had been accepted which restricted the use in criminal proceedings of information extracted from a defendant, if the undertakings and orders provided a proper protection for the defendant.

claiming privilege against self‑incrimination. The judge at first instance held that the accountant was not entitled to the privilege he claimed, because having made an inculpatory statement to the police, he would not be placed in greater jeopardy if he were required to obey the disclosure orders sought by his clients. The Court of Appeal of NSW accepted the claim for privilege but made orders subject to elaborate conditions designed to protect the accountant from the risk of prosecution.

In his judgment, in the High Court at p. 5, Deane J. said—

"The privilege against self‑incrimination is deeply ingrained in the common law". It reflects "a cardinal principle" which lies at the heart of the administration of the criminal law in this country.  It can be, and has increasingly been, overridden or modified by the  legislature. It can be waived by the person entitled to claim it. Otherwise, it is unqualified. In particular, it should not be modified by judicially devised exceptions or qualifications. Unless it appears  that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or overridden by the courts."

At p .8, Deane J. went on to say ‑

"If the privilege against self‑incrimination were susceptible of being overriden by the courts in the interests of justice in the circumstances of a particular case, it would be arguable that the  orders made by the Court of Appeal were justified, notwithstanding the deficiencies of the regime which they established. As has been  seen, however, the privilege is not subject to judge­made exceptions or  qualifications and, in the absence of statutory authority, cannot properly  be disregarded or overridden by the courts either to meet the exigencies of hard cases or at all. There has been no suggestion of any applicable statutory provision overriding or qualifying the appellant's privilege against self‑incrimination in the present case. Accordingly, the orders of the Court of Appeal cannot be sustained."

In a joint judgment, the other four members of the Court, at p. 14, held ‑

"There is simply no scope for an exception to the privilege, other  than by statute. At common law, it is necessarily of general application –  a universal right which protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against "the peril and possibility of being convicted as a criminal". For the same reason, there can be no exception in civil proceedings, whether generally or of one kind or another. Moreover, it would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has not been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceedings."

At p. 17, the judges had this to say ‑

"Quite apart from the difficulties which the orders of the Supreme Court present for the administration of justice, to which reference has already been made, it is inimical to the administration of justice for a  civil court to compel self-­incriminatory disclosures, while fashioning  orders to prevent the use of the information thus obtained in a court  vested with criminal jurisdiction with respect to the matters disclosed. Nor is justice served by the ad hoc modification or abrogation of  a right of general application, particularly not one as fundamental and as important as the privilege against self‑incrimination."

In Istel v. Tully [1993] AC 45, Buckley J. had made an order, ex parte, requiring the two defendants to disclose information relating to dealings in certain assets and to produce copies of documents in relation to such dealings. The order prohibited the use of the material so disclosed in the prosecution of either defendant. Wright J. set aside the order in so far as it related to such disclosure holding that it infringed their privilege against self‑incrimination. The Court of Appeal dismissed the appellant's appeal from Wright J.'s order, holding, inter alia, that it was not open to the Court to devise protection in substitution of the privilege claimed.

The House of Lords held that while it was true that the privilege against self-incrimination subsisted, and could only be removed or altered by Parliament, there was no reason to allow a defendant in civil proceedings to rely on it, thus depriving a plaintiff of his rights, provided the defendant's own protection was adequately secured by other means.

I will cite a few passages from some of the speeches. In his speech, Lord Templeman had this to say, at p.53-

"This is a powerful reason for the existence of the privilege against self-­incrimination in certain circumstances. Indeed, in my opinion, privilege can only be justified on two grounds, first that it discourages the ill‑treatment of a suspect and secondly that it discourages the production of dubious confessions. Neither of these considerations applies to the present appeal. It is difficult to see any reason why in civil proceedings the privilege against self-­incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents which are in his possession or power and which speak for themselves. And it is fanciful to suggest that an order on Mr Tully to say whether he has received Abbey's money and if so what has happened to that money could result in his ill‑treatment or in a dubious confession. I regard the privilege against self‑incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the past when the court directs the production of relevant documents and requires the defendant to specify his dealings with the plaintiff s property or money."

Later, at p.55, Lord Templeman said ‑

"Having regard to the fact that Parliament has not abolished the privilege against self‑incrimination Mr. Tully would be entitled to rely on that privilege if but only if and so far as compliance with the order of Buckley J. would provide evidence against him in a criminal trial. There is no reason why the privilege should be blatantly exploited to deprive the plaintiffs of their civil rights and remedies if the privilege is not necessary to protect Mr Tully. In order to make the exercise of the privilege unnecessary in the present case Buckley J. included in his order the following paragraph:

'33. No disclosure made in compliance with paragraphs 18 to 32 inclusive of this order shall be used as evidence in the prosecution of the offence alleged o have been committed by the person required to make that disclosure or by any spouse of that person'."

At p.62, Lord Ackner said ‑

Crown Prosecution Service, prevents the material provided in compliance with paragraphs 18 to 32 inclusive of the order being used as evidence in the prosecution of any offence alleged to have been committed by the defendants."

Lord Goff and Lord Lowry agreed that the appeal should be allowed.

On the facts, the majority of the House of Lords accepted that paragraph 33 of Buckley J.'s order, when coupled with the response by letter of the Crown Prosecution Service, (when asked if they wished to intervene in the appeal), provided adequate protection for the defendants. In their reply declining the invitation to intervene, the CPS had said that as they understood the position, since Buckley J.'s order only applied to disclosure by the defendants as a result of compliance with the order, they were not prevented from using material they had already obtained or which they might obtain independently of the order. Lord Griffiths was for dismissing the appeal because he would not have been satisfied that the matter had been considered in the CPS at the highest level so that there was no risk that the criminal law would be impeded.

In Istel the House of Lords approved the decision of the Court of Appeal in In re 0. (Restraint Order: Disclosure of Assets [1991] 2 QB 520, where that Court (Lord Donaldson MR, Glidewell and Ralph Gibson LJJ) held that in circumstances where the risk of self­incrimination arose, a condition should be inserted in all orders for disclosure which would govern the use which could be made of affidavits swom in compliance with the order. The condition formulated by Lord Donaldson was obviously the inspiration for the wording of the condition in paragraph 2.36 of the Chief Justice's Order. Moreover, those who had a hand in drawing up the condition must have heeded the advice (if I may so put it) of the Court of Appeal that it was preferable to impose such a condition in the order rather than to seek an undertaking or to expect a party to rely for his protection exclusively on the power of the judge in any subsequent criminal proceedings to exclude evidence which would be unjust to admit.

Both Staughton LJ in Soceidade Nacional v. Lundgvist [1991] 2 QR 310, at p.324 and Waller LJ in Den Norske Bank ASA v. Antonatos [1999] QB 271, at pp. 238‑289 quoted with approval a short passage from the judgment of Cockburn CJ in Reg. v. Boyes (1861) 1 B & S 311 at p.330 which concisely explained the task of a court when faced with a claim based on the privilege against self‑incrimination -

"the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer,"

An earlier case in which Reg. v. Boyes was approved was Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. [1939] 2 KB 395 (per du Parcq LJ) at pp.404‑405.

In Boyes pursuant to an order of the House of Commons, the Attorney General laid an information against the defendant for bribery in an election. The alleged recipient of the bribe was called as a witness. He refused to answer any question relevant to the charge against the defendant on the ground that answers would tend to incriminate him. The witness was thereupon handed a pardon under the Great Seal and, when he maintained his refusal to answer, he was compelled by the trial judge to do so. It was held that he was rightly compelled to answer. No danger of the kind relied on by the witness existed once the pardon had been granted. Quoting from Cockburn CJ's judgment, in the Triplex Case, at p.494, du Parcq LJ said -

man would be affected by, should not be  suffered to obstruct the administration of justice'."

This was said in reference to the remaining fear which the witness had said he harboured despite the pardon (that he might nevertheless be impeached by the House of Commons) described by Cockburn CJ as "simply ridiculous."

I now return to Reid v. Howard (1995) 184 CLR 1. There was no appearance by the respondents. No amicus assisted the court. The concern of Counsel for the Attorney General of New South Wales, who had intervened by leave, seems to have been merely that the Crown could not be bound to confer an immunity without its consent. He added, whether or not the power to bind the Crown existed, it ought not to be exercised unless the Crown had appeared and been heard (p.4). The State was not a party to the proceedings, The Court said that all the restrictions on the use of the disclosed material under the protective regime devised by the NSW Court of Appeal could be rendered nugatory with the leave of a judge of the Equity Division of the Supreme Court (pp.7 and 16). It is interesting to note that the High Court of Australia said little about Istel, save to say: "In the latter case, disclosure of incriminating information was ordered but only after the prosecution authority had agreed not to make use of the information in any subsequent prosecution."

With great respect to the judges who decided that case, I find it difficult to be certain whether their decision would have been the same if the Crown had agreed to be bound by an undertaking given to the Court which would have ensured that there was no basis upon which a claim to exercise the privilege against self‑incrimination could be made, as it was unnecessary. I beg to doubt it, because the Court did not disapprove of Istel v. Tully and the absence of consent by the Crown to the immunity featured so prominently in the case.

However, the tenor of the passages of the judgments I have quoted seem to suggest that even where the risk of conviction as a criminal is wholly removed, the privilege is an absolute one and does not depend on whether or not there is any actual risk of a prosecution. If this is so, it is in direct conflict with Istel. At p.68 Lord Lowry observed -

"Subject to the letter from the Crown Prosecution Service of 23 October to which I shall hereafter refer. I would (subject also to my procedural misgivings) have made the same order as Wright J. made and the Court of Appeal affirmed and I would have sympathised with the observation of Neill L.J. that it was not open to a court "to replace the general privilege with some other protection of its own devising." But the rightness of that observation would depend on the inadequacy of the "other protection" because it is clear that there is no absolute privilege against answering incriminating questions‑ the privilege is against exposing oneself to the reasonable risk of prosecution,"

It is clear from the Chief Justice's judgment that he was asked to follow Reid v. Howard and not Istel and the petition of appeal complained that he had not followed Reid v. Howard.

that the question whether any realistic risk of a conviction remained should be addressed on its merits. Thus the order for disclosure should have indicated that there was a right to claim the privilege and then, if a claim was made the Court would decide if it should be sustained.

As to Istel, I understood Miss Montgomery to submit that the House of Lords was dealing with the second stage of the two stage process.

I have to say that I do not find it possible to distinguish Istel on the facts of the present case. The proviso in para. 2.36 is reminiscent of para. 33 of Buckley J.'s order which featured in Istel. The consent of the prosecuting authority is clear. The Attorney General who controls all prosecutions acts in this action for the plaintiffs. The proviso is in the form of a condition and, when added to the undertaking in Schedule 8, must remove any legitimate, and not merely fanciful, fear that any disclosure made by Prince Jefri in obedience to the Order can be used in evidence in the prosecution of any offence so that a claim of the privilege would not be necessary.

I hope it will not be considered presumptuous if I express the opinion that Lord Griffiths would not have dissented if the facts had been as they are in our case because he would not have had the concern revealed in his speech in Istel at p.58E‑F.

Since it is not possible to distinguish Istel, if there is indeed a conflict between that case and Reid v. Howard, there is no doubt we are effectively bound by the decision of the House of Lords, a decision I would respectively have followed in any event. The common law may have developed differently in Australia.

Section 2 of the Application of Laws Act, Cap.2, is in these terms-

"2. Subject to the provisions of this Act and save in so far as other provision has been or many hereafter be made by any  written law in force in Brunei, the common law of England and  the doctrines of equity, together with statutes of general application,  as administered or in force in England at the commencement of this Act,  shall be in force in Brunei:

Provided that the said common law, doctrines of equity and statutes of  general application shall be in force in Brunei so far only as the circumstances  of Brunei and of its inhabitants permit and subject to such qualifications  as local circumstances and customs render necessary."

In de Lasala v. de Lasala [1980] AC 547, which was an appeal to the Privy Council in a family law case from Hong Kong, the Board, in an opinion delivered by Lord Diplock, had occasion to discuss the effect of a statute in Hong Kong, whose provisions were virtually identical to our Application of Laws Act, in relation to decisions of the House of Lords and of the Privy Council relied on in the local jurisdiction.

Lord Diplock said (p.557 F‑G)

"It has become generally accepted at the present day that the common law is not unchanging but develops to meet the changing circumstances and patterns of society in which it is applied."

At pp.557H‑558C Lord Diplock went on to say ‑

persuasive authority must be very great,  since the Judicial Committee of the Privy Council, whose decisions on appeals  form Hong Kong ~.re binding on all Hong Kong courts, shares with  the Appellate Committee of the House of Lords a common membership.  This Board is unlikely to diverge from a decision which its members have  reached in their alternative capacity, unless the decision is in a field of  law in which the circumstances of the colony or its inhabitants make it  inappropriate that the common law in that field should have developed on  the same lines in Hong Kong as in England."

The proviso to section 2 of Cap. 2 has no application to the issues in this case.

Counsel for Prince Jefri expressed concern on his behalf about the way in which the criminal and civil sides of the investigation of the case against him had been handled. Information between the two sides had been freely exchanged so that there was a real danger that disclosures made by the Prince in obedience to the order would be made available to the prosecution authorities if they  decided to prosecute him. It was suggested that unless the Prince's privilege against self­incrimination were preserved intact, he should not be required to make any  disclosure unless and until it had been shown that effective procedures and  arrangements had been put in place to prevent any disclosure being passed  on to the prosecution authorities.

During the hearing of these appeals, Mr Pascoe handed in a document entitled "Protocol for an Information Barrier". He explained that the Protocol was designed to ensure that information disclosed pursuant to the orders for disclosure was not passed on 21to the prosecution authorities. The undertakings in the Protocol would be given by the plaintiffs' counsel on behalf of the various persons to be bound by them. They would take effect as soon as the disclosures ordered by the Court had been made.

Mr Pascoe said that the primary purpose of the Protocol was to ensure that if any of the defendants were later to be prosecuted, the prosecution was not compromised if it could not demonstrate that any evidence relied on had not been obtained in breach of any of the undertakings reflected in the Chief Justice's Order.

Mr Pascoe also explained that while the plaintiffs should not be taken to accept that there was any legitimate reason for the concerns expressed on behalf of Prince Jefri, the Protocol would meet those concerns. This is Mr Pascoe's summary of the Protocol's provisions

"(1)     The investigation into possible offences under the Prevention of Corruption Act will be conducted by a separate team from the Anti‑Corruption Bureau;

(2)      The current director of the ACB, Pehin Yahya, will take no further part in the ACB investigation and will not disclose or permit disclosure of the Disclosed Information to anyone on the criminal side;

(3)      The Attorney General will conduct the investigation into possible offences under the Penal Code. He will cease to act for the Plaintiffs in Suit No 31 of 2000 and the Solicitor General will act in his place;

(4)      The Solicitor General will take no fiirther part in the criminal investigations. The Solicitor General will have two nominated members of her staff assisting her in conduct of Civil Suit 31 of 2000. The Solicitor General and those members of her staff will not disclose or permit disclosure of the Disclosed Information to anyone on the criminal side.

(5)      Mr Waring (Legal Affairs Advisor to the Government), and the Financial Task Force will take no further part in the criminal investigations and will not disclose or permit disclosure of the disclosed Information to anyone on the criminal side.

(6)      Arthur Andersen and Freshfields, who are not currently involved in any criminal investigations, will not disclose or permit disclosure of the Disclosed Information to anyone on the criminal side.”

Miss Montgomery contended that the Protocol fell far short of achieving the objectives claimed for it. She submitted a draft with amendments she proposed should be made, which would alleviate the Prince’s concerns but still not entirely remove them. Perhaps the most significant addition she proposed was that the plaintiffs would be required to give a number of further undertakings and if any of them were breached the effect would be that the defendants could not be prosecuted for offences arising out of or connected with the misappropriation of BIA funds between 1983 and June 1998, or arising out of or connected with the action. Any prosecutions in train at the time of a breach would have to be discontinued, and the action stayed.

Mr Pascoe told the Court that he had no instructions to consent to any amendment to the terms of the Protocol he had offered. He would take instructions to see if he could accommodate any of Miss Montgomery’s proposals. At the conclusion of the hearing of the appeals Mr Pascoe handed up a final version which included some amendments and additional undertakings. The final version of the Protocol is set our as an Appendix to our judgments.

The Protocol, in its amended form, represents, if I may say so, a fair and sensible attempt to ensure, as far as possible, that no prejudice is suffered by the defendants by disclosures made pursuant tot the Order. Mr Pascoe is content that the Protocol be made part of the Order and that the undertakings it contains should be undertakings made to the Court. I would, therefore, order that the Protocol forms Schedule 10 to the Chief Justice’s Order.

Of course, every case in which the issue of the privilege against self-incrimination arises will depend on its own facts. In my view the condition set out in para. 2.36,Coupled with the Further Undertaking (1) in Schedule 8, makes it impossible to rely on the privilege to justify a refusal to obey the disclosure order. The law is clear. On the facts no reasonable ground exists for the anxiety expressed on behalf of Prince Jefri. I think the Chief Justice was right to refuse a stay on that ground.

Appeal No.5 of 2000

In this appeal, HRH Prince Hakeem relies on the alleged adverse effects upon him of the provisions of section 12 of the Brunei Investment Agency Act on largely the same grounds as had been relied upon by his father, Prince Jefri. It is acknowledged on his behalf that he is not a person mentioned in the section. But since other defendants, particularly his father (who it had been alleged, had been the source of all the funds being claimed from him) were affected by the section, he would, in turn, be similarly affected in relation to his compliance with the order and his defence to the action.

Prince Hakeem, as did his father, contends that in the interests of justice the proceedings should be stayed unless and until the section is amended so that the defendants are not forced to commit offences by obeying the Order and in their defence to the action.

While it was accepted that no allegations of wrongdoing had been made against him, the Prince Jefri asserts that his solicitors had confirmed that this affairs were being investigated by the ACB. The Order, it was said, effectively deprived him in advance of the right to claim his self-incrimination privilege should be need to rely on it.

steps had been taken to ensure that any information or documents disclosed by him were not disclosed to the Attorney General or the ACB or their advisers or agents.

It is contended that the Chief Justice’s Order effectively deprives him in advance of his right, should he need to invoke it, to claim privilege against self-incrimination.

Miss Dohmann, who did not appear before the Chief Justice, adopted Miss Montgomery’s submissions about section 12 of the BIA Act and the privilege against self-incrimination and made some of her own. Despite Miss Dohmann’s submission, I mean no disrespect to her when I say that she, too, has not persuaded me that the Chief Justice’s decision not to stay the proceedings against either of the Princes on the section 12 point or the issue of self-incrimination can be assailed.

Appeal No.4 of 2000

This appeal by the plaintiffs concerns some of the amendments made by the Chief Justice on 21 February 2000 to the Orders he had made on 6 and 14 March. The provisions of the order in its final form which are relevant to this appeal are to be found among the “Exceptions to paragraph 1 of this order” and are in these terms-

“(a) This Order does not prohibit:

(i)The First Defendant from spending US$300,000 a month towards his ordinary living expenses, in addition to a reasonable sum for legal advice ad other representation in relation to this action, in any related proceedings, and in any legal proceedings in any country:

……….

(iii)The Third Defendant from spending US$50,000 a month towards his ordinary living expenses together with a reasonable sum for legal advice and other presentation;

(v) Each of the Fifth to Seventieth Defendants from spending such sum as may be agreed in writing between each Defendant and the Plaintiffs' solicitors toward its ordinary and proper business expenses together with a reasonable sum for legal advice and other representation;

But before spending any money other than is permitted by any of the above exception, each of the First to Third and Fifth to Seventieth Defendants must give the Plaintiffs' Solicitors 4 working days prior written notice of where the money is to come from and if it appears that any Defendant is using moneys originally withdrawn from the BIA to fund these allowances, the Plaintiffs reserve their rights to apply to this court to prevent such use. [Emphasis added]

(vi) PROVIDED THAT the Plaintiffs shall not seek to assert any proprietary or other claim to any monies which may be paid to any [of the] Defendant's advisers in respect of work carried out in connection with or relating to this action or any legal proceedings in any other jurisdiction. For the removal of doubt, these exceptions should apply to monies paid in any country.

As regards sub‑para. (iii) an order is sought that the figure in the original order (which was B$25,000) should be restored and should be substituted for the figure US$50,000. In sub‑para. (v), the order sought is that the words I have emphasized (which did not appear in the original order) should be deleted. The plaintiffs also seek an order that sub~para. (vi) (which appeared for the first time as a result of the 21 February amendments) be deleted.

The remaining order sought by this appeal is one which would require Prince Hakeem to give an undertaking similar to the one proferred by his father, which the Chief Justice had accepted, that he would replenish any sums expended in respect of ordinary living expenses, legal advice or other representation out of his own funds should it ultimately be found that any part of such sums had been spent out of assets to which the plaintiffs are able to establish a good proprietary claim. Prince Jefri's undertaking now appears in the Order as Schedule 9 in this form:

“In the event that it shall be finally determined (by a judgment that is no longer subject to appeal) that

(a) any asset transferred or caused to be transferred. Or

(b) any sums paid or caused to be paid,

by the First Defendant to any third party pursuant to the permission in paragraph 1. 15(a)(i) of the Order was held, or paid out of funds held, on trust for the Plaintiffs, the First Defendant shall forthwith pay to the Plaintiffs, out of any assets or funds which he then holds or to which he is then entitled or over which he has the power of disposal of law or fact but which are not subject to any trust in favour of the Plaintiffs, an amount equal to

(a) the value of the asset so transferred, or

(b) the value of the sums so paid or caused to be paid,

together with interest at the Judgment Act rate from the date of transfer or payment until payment to the Plaintiffs."

Prince Jefri's summons had sought a stay of the Order until a binding and irrevocable undertaking was given that would protect his legal and other advisers from proprietary claims to recover professional fees paid to them in respect of work done whereas it was carried out.

The application was resisted by the plaintiffs. It was pointed out that whenever a plaintiff makes a proprietary claim the same issue would arise whether or not a Mareva order was involved. It was contended that if the Prince was in a position to pay his professional advisers from a source other than funds to which the plaintiffs were entitled, the order sought would be unnecessary. But it was submitted that there was no material before the Court which revealed the source of funds available for the payment of professional fees, nor was there evidence before the Court as to whether or not Prince Jefri had free funds available for this purpose.

The Chief Justice observed that while it was theoretically possible for him to order solicitors and others concerned to enquire into the source of the funds used - “…this would, if the Defendant concerned replied that he was using his own assets, merely give rise to a series of mini‑trials, at the end of which a solicitor might be deprived of his fees."(p.27 of the transcript of the judgment)

The Chief Justice went on to say that he appreciated that it would be strange if BIA funds should be used in this way (if they were) but this danger had to be weighed against the possibility that legal and other advisers might be reluctant to act unless they were protected. This would be undesirable in such a complicated and difficult claim in respect of which the defendants were entitled to have proper legal and other professional advice.

The Chief Justice added that he regarded the question of proportionality, as he put it, of some importance. It was claimed that Prince Jefri had taken nearly US$15 billion from BIA funds. He doubted if legal and other fees could amount to much more than US$3 million, a very small percentage of the sum claimed. It was for this reason that he had added the paragraph which is the subject of the plaintiffs' complaint.

They say he also erred in law in holding that Prince Jefri (and the other defendants) should not be required, before spending any money on living expenses or on legal or other representation, to inform the plaintiffs where such money was to come from. They also say that there had been no evidence to support any of the amendments which are the subject of this appeal.

As mentioned earlier, Jacob J. made a freezing order affecting England and Wales on 21 February. We have before us the transcript of the judgment he gave on 20 March when he made certain variations to his original order which had been sought by Prince Jefri. After referring to and citing English authorities which bound him, he observed, at p.6 of the transcript -

"In this case, there is no evidence on behalf of Prince Jefri that he has no assets which are not the subject of a proprietary claim. It would follow that if the case had been in England I think, following those two Court of Appeal cases, that no variation of the original order [of the kind made by the Chief Justice] would have been allowed".

Jacob J., in pages 7‑12 of the transcript of his judgment, fully (and, if I may say so, cogently) explains why he felt, that since he was exercising jurisdiction which was ancillary to that of the primary (Brunei) Court, it would not be right to create the possibility of inconsistency or conflict between the orders made in the two jurisdictions by any order that he made.

The two Court of Appeal authorities cited by Jacob J. were Fitzgerald v Williams [1996] QB 657 and Ostrich Farming Corporation v. Ketchell (CA. Transcript, 10 December, 1997). They indicate the proper approach to be adopted by a court when deciding whether or not to allow a person to make payments in respect of living expenses and IeL‑al costs out of assets which are the subject of a proprietary claim by the claimant. They are relied on by Mr Pascoe.

In the Ostrich Farming case, the two defendants had applied to have the terms of a world­wide Mareva injunction varied, in effect so that they could use monies claimed by the plaintiff for their own purposes. At page 4 of the transcript, Millett LJ (as he then was) sitting with Roch LJ, cited the following passage from the judgment of Sir Thomas Bingham MR (as he then was) in Fitzerald v. Williams. Nfillett LJ's quotation is from [ 1996] 2 All ER 171 at p. 178

"A defendant should not be entitled to draw on a fiind which may belong to a plaintiff until he shows that there is no fund of his own on which he can draw. Where he shows that he has no funds of his own on which he can draw, the court must make a difficult decision, as explained by this court in Sundt Wrigley & Co. Ltd. v. Wrigle [1993] CA Transcript 685. But the plaintiffs may very well be right in contending that that stage has not yet been reached in this case. The judge was, I think, wrong not to accept both limbs of the plaintiffs' argument at this interlocutory stage.

On this point I would grant leave to appeal and allow both appeals. The plaintiffs are in my view right to contend that unless and until the first defendant can establish on proper evidence that there are no funds or assets available to him to be utilised for payment of his legal fees and other legitimate expenses, other than assets to which the plaintiffs' maintain an arguable proprietary claim, he should not be allowed to draw on the latter type of assets.

The first defendant argued before us that he was being denied funds needed for the conduct of his defence. This may or may not be so. But the principles are clear. If the first defendant can make a case for the release of additional funds to him, he should make an appropriate application to the judge."

About this passage, Millett LJ observed ‑

"Sir Thomas Bingham was there laying down the rule that proper evidence must be submitted to establish that the defendant has no other funds beyond those to which the plaintiff lays a proprietary claim which are available to him for the payment of his legal fees and other legitimate expenses. But he was not saying that this was sufficient. It was only the first step."

At p. 5 of the transcript, he said ‑

belongs to the plaintiff company. For that purpose they must put in evidence and condescend to particulars. If they do so then, and only then, will the court enter upon the difficult balancing exercise which other judges have described, in which the court must weigh up the relative strength of the two cases, consider the nature of the defence which has been put forward and all the other circumstances of the case. But that stage has not yet been reached."

Roch LJ's judgment begins at the foot of p. 5 of the transcript, as follows ‑

"When, as in this case, a plaintiff makes a proprietary claim to funds in the possession of the defendant and has obtained from the court a Mareva injunction freezing assets in the hands of a defendant, an application by that defendant for the release of monies from the frozen funds to be used to finance his defence to the plaintiff's claim.

involves a two‑stage process: see Fitzaerald and others v Williams and pthers [ 1996] 2 All ER 171, [1996] 2 WLR 447 at 178E, the judgment of the then Master of the Rolls, Sir Thomas Bingham.

The first stage is in effect a hurdle that the defendant must clear before the court's discretionary power to release monies from the frozen funds for the purpose of financing the defendant's defence arises. That hurdle is to establish on proper evidence that there are no funds or assets available to the defendant which can be used by him to pay his legal expenses other than the assets in respect of which the plaintiff brings his proprietary claim.

The reason for the first hurdle is obvious. The defendant should not be permitted to diminish the funds which the plaintiff claims are his and in respect of which the defendant is (if the plaintiff is correct) a trustee for the plaintiff. A defendant cannot clear this hurdle unless he provides evidence on affidavit giving a full and frank account of his finances to the court.

Once that hurdle is cleared, the court can make an order allowing the defendant to use part of the funds (the equitable ownership of which is claimed by the plaintiff) for the defendant's legal expenses. That power in the court is a discretionary power. The court in deciding whether to exercise that power, must weigh the potential injustice to the plaintiff of permitting the funds which may turn out to be the plaintiff s property to be diminished so that the defendant can be legally represented, against the possible injustice to the defendant of depriving him of the opportunity of having the assistance of professional lawyers in advancing what may, at the end of the day, turn out to be a successful defence.

To perform this process, which Sir Thomas Bingham in the case of Sundt Wrigley & Co. Limited v Alan Charles Wrigle (unreported) described as a "careful and anxious judgment", the judge must have evidence so that the he can consider all relevant circumstances and, in particular, so that he can weigh the relative strengths of the plaintiffs claim to property in the funds held by the defendant and the defendant's defence to that claim."

The appeal was allowed on the basis that the judge had erred in principle, since

there was insufficient evidence before him for the proper exercise of his discretion.

Mr Pascoe explained that if the second paragraph of paragraph (a)(v) of the "Exceptions to Paragraph I of this Order" had remained in its original form, the plaintiffs could have taken steps to ensure that Prince Jefri spent any money of his own first rather than spending funds to which the plaintiffs had an arguably good claim. He contends that the Chief Justice had exercised his discretion on wrong principles, as the authorities showed. There was simply no evidential basis for an application by a defendant for permission to use assets which are subject to a proprietary claim, to pay living expenses, or legal fees.

Although we are not bound by decisions of the English Court of Appeal (Le Lasala [1980] AC 547 at p.557 F‑G) I respectfully agree with, and adopt, the principles so clearly stated in Fitzgerald v. Williams and the Ostrich Farming Cas. I appreciate, of course, that the judgments in those cases do not lay down a rule of law of universal application. Each case will depend on its own facts, but a plaintiff is entitled to try to ensure, as far as he can, that a defendant against whom he has an arguably good proprietary claim uses his own assets first to pay for legal costs etc before he is allowed to diminish the fund claimed.

Miss Montgomery and Miss Dohmann, for their respective clients, argued that the judge had a discretion which could not, on the facts, be said to have been exercised on any wrong principle. No rule of law prevented a Court from making an order of the kind objected to without evidence from the defendant as to his assets. The cases relied on by Mr Pascoe did not lay down a rule which was applicable to every case. The Court had ample power to make an order which was essential to ensure that a defendant has a fair trial. It was suggested that the defence of the defendants could not properly be conducted without the Order the Chief Justice had made.

In my opinion Mr Pascoe is right to say that there was no material before the judge which would have entitled him, in the exercise of his discretion, to negative a term in the previous order which would have allowed the plaintiffs, if necessary, to ask the Court to prevent the Princes from using funds which arguably were not their own. The position must be considered in the light of the fact that both Princes have yet to disclose anything about their free assets. I accept that the main case is a massive and complicated one, but I do not see how it can be said to be fair to the plaintiffs if, despite the fact that there is no evidence at all about either Prince's assets, they are free to meet their expenses without notifying the plaintiff.

It may be difficult to produce detailed evidence about their assets, but no effort has been made to produce any material before the Court so that an informed decision can be reached after the plaintiffs have been heard.

It would be perfectly understandable if an application had been made to the Court on behalf of either Prince explaining that his financial affairs were complicated and therefore more time was needed to prepare evidence for the Court. In such cases, no doubt, the Court would make a suitable order fixing a date by which the necessary evidence must be brought before the Court, as well as fixing the amount he should be allowed to spend in the meantime. It is not, I think, sufficient to answer the legitimate concerns of the plaintiffs about the source of his funds being expended, by saying that all would be revealed when disclosure is made.

Counsel contended that the Chief Justice had sufficient material before him for the exercise of his discretion. He had all the case papers and had the feel of the case. It was said that it was clear that neither Prince had any assets of their own so that there was no need to produce any evidence to the Court. I find nothing in para. 18 of Mr Marr's 2^nd affidavit, filed on the plaintiffs' behalf that comes within measuring distance of filling the yawning gap in the defendants' case on this issue. Surely a defendant must have some idea of his own assets. The plaintiffs cannot possibly know what assets either defendant might have somewhere in the world.

In my respectful opinion, the interests of the plaintiffs were not sufficiently taken into account. The judge, I think, erred in principle and his decision cannot stand. I would therefore allow the plaintiffs' appeal on this point and delete the words "other than money that is permitted by any of the above exceptions" from the second part of para. (a)(v) of the Exceptions to Paragraph I of the Order. This would restore the provision into its previous form.

complain that no formal application had been made and no evidence of any kind had been offered by the Prince.

In his judgment, the Chief Justice referred to a solicitor's letter which asked for the amount allowed for this purpose to be increased from B$25,000 (about US$14,500) to US$80,000 (about B$136,000) per month. We were shown the letter. It is dated 7 March and addressed by Prince Hakeem's solicitors to Prince Jefri's solicitors. The letter makes reference to a pending application to be made by Prince Jefri. This time it was an application to increase the sum allowed to him for his living expenses. It invited them to ask Counsel acting for Prince Jefri on that occasion to bring to the attention of the Court Prince Hakeem's position about the inadequacy of the provision made in the original order to cover his own living expenses. The letter explained why the sum allowed was wholly inadequate to enable him to live a life appropriate to a member of the Royal Family. It points out that the allowance of B$25,000 would be totally exhausted merely by the wages which had to be paid to the Prince's staff. The letter concluded thus -

"His Royal Highness simply does not have substantial resources available for expenditure on legal costs, and it may be that the Chief Justice will find it just and convenient to deal with Prince Hakeem's situation without the necessity for a formal and costly application. At any rate, it is right that he should know about it, and we shall therefore be grateful if you would kindly make the Chief Justice aware of this letter. If you agree, you may naturally provide a copy to the Plaintiffs' representatives."

It is not unusual that a sum allowed for the living expenses of a defendant at the ex parte stage is found to be inadequate and, of course, an application by the defendant for his allowance to be increased is only to be expected, unless the plaintiff agrees to the increase sought. It is also perfectly understandable for a judge to be asked to enhance the sum allowed as a matter of urgency (because the defendant says that it is obviously inadequate or more funds are needed to deal with a sudden emergency) without requiring the usual evidence. However, with very great respect to everyone concerned, and to the judge who was obviously trying to be helpful, it seems to me that the legitimate interests of the plaintiffs were inadvertently overlooked, despite Mr Pascoe's protests.

When a defendant, for special reasons, needs to ask the Court to increase the relevant sum immediately, and before he has time to make a formal application supported by the necessary evidence, if the sum is increased in such circumstances, the order must, I think, be on terms that the increased sum will be allowed only until a certain date by which time the defendant must make the usual application with evidence giving the plaintiff an opportunity of being heard in opposition. What happened here is that the plaintiffs were put in the position of having to appeal to this Court in effect to assert their rights. That cannot, in my judgment, be right.

Of course, the Chief Justice was entitled to take judicial notice of the fact that Prince Hakeern should be allowed to live in a style appropriate to an adult member of the Royal Family but this consideration would be relevant when a proper application is being heard (or if what I might call an emergency order has to be made).

I do not think that it is fair to accuse the plaintiffs of being petty and vindictive (as has been done) for asking that their undoubted rights be recognised. With respect, I think that the Chief Justice erred in principle in acting as he did in the exercise of his discretion. I would allow this part of the plaintiffs' appeal and restore the original sum (B$25,000) to the Order in para. (a)(ii) of the "Exceptions to Paragraph I". Prince Hakeem can, of course, make a proper application, supported by evidence, to the Court if he wishes to do so.

any claim to trace and recover any sum paid by any of the defendants to their advisers in connection with the present action or any legal proceedings in any other jurisdiction.

Before addressing this question, it is important to note that the plaintiffs have strongly emphasized before us that they make no allegation against anyone advising any of the defendants that circumstances have arisen that might force any of them to return any of their professional fees. The way it is put in their skeleton argument is: "All the plaintiffs are contending for is that there is no proper basis for the Court now to determine, without any evidence at all, that the facts are now such and will always be such that the Plaintiffs will never be able to make a claim for such disgorgement."

As they did before the Chief Justice, the plaintiffs relied on the principles which emerge from the judgment of Mr Michael Burton QC (then sitting as a Deputy Judge of the High Court in the Chancery Division) in United Mizrahi Bank Ltd. v Doheqy [1998] 1 WLR 435. In my judgment, fraud apart, it will be a rare case that liability will attach to a solicitor in respect of the fees received from clients, and so, one may ask why, what came to be called in this appeal, "the clawback7 provision, was necessary. The Judge felt that without it, advisers might be reluctant to act. I certainly have yet to see such a provision in an order of the kind before us. With respect, I agree with Mr Burton's approach to the question whether such a pre‑emptive order should be made. As regards the possible reluctance of professional advisers to act without the order's safeguards, I will respectfully adopt what Mr Burton said at p.444 E‑F:

"But, if that is a worry that solicitors have, it is a worry that they will have in all such cases, and not simply in cases where there are injunctions. In this case, as I have indicated, the defendants are permitted to expend money on legal costs even if it should turn out that the assets belong to the plaintiff so far as being in contempt is concerned, and therefore the question of whether there might be some claim in constructive trust will be no different in this case from that in any other similar case where there is no injunction."

It may be that at a later stage of the proceedings it will be appropriate for the Court to consider making an order of that kind, but, in my judgment, not yet. 1 think the plaintiffs were justified in opposing the making of the order. In my judgment the Judge did not have sufficient material before him to grant the sanction that had been sought, in advance. 1 would allow the plaintiffs' appeal on this point and delete the proviso in para (vi) of the Exceptions to Paragraph 1 of the Order.

I mention here that Counsel for Prince Hakeem said that the Prince had no objection to providing a "replenishment" undertaking in the same form as that given by his father and appearing as Schedule 9 to its Order, although she said that it was not likely to become relevant. 1 would make that Order by consent. It may be that the easiest way would be to add "and the Third Defendan” to the title of the Undertaking.

In summary, 1 would make the following orders

(a) that Appeal No.3 of 2000 be dismissed;

(b) that Appeal No. 5 of 2000 be dismissed;

(c) that Appeal No. 4 of 2000 be allowed;

(d) that the Appendix to these judgments be added as Schedule 10 to the Order.

CONS, J.A.:

I agree with the Orders that my Lord has proposed and the reasons that have led him thereto.

SILKE, J.A.:

seventy two named defendants, as money misappropriated by him in his capacity as Minister of Finance for Brunei Darussalam and in his capacity as Chairman of the Brunei Investment Agency, the 2 nd Plaintiff "BIA". They allege a proprietary claim to all the monies which may have come either directly into Prince Jefri's hands or been derived from his use of those monies. They also seek to trace and claim back monies they allege were passed by Prince Jefri to other persons asserting that money to be the plaintiffs.

On the 21" February the Chief Justice granted, at the request of the Plaintiffs made ex parte, a world wide Mareva injunction. There were related proceedings in London.

There were a number of applications subsequently made to him in connection with that Order, in particular summons No 59, 60 and 61. He made further Orders which are now appealed to us ‑ the composite Order.

Three main issues arise: first, section 12 of the BIA Act: second, selfincrimination: and, third, professional fees and living expenses. There is also the matter of Prince Hakeem, the 3 rd named defendant and the son of Prince Jefri.

The first may be divided into two matters: does the Attorney General have power to issue an undertaking to the Court ‑ not merely a private one to the parties ‑ that he will not prosecute future offences which might arise because of the prohibition against disclosure, backed by criminal sanctions, contained in S. 12: that is, a power to commit his Office and himself personally.

If he has: then is the undertaking as set out in the composite Order sufficient to safeguard the position of "disclosers" from subsequent prosecution including Prince Jefri himself, his professional advisors and, perhaps more importantly, prospective witness's on his behalf.

I start consideration of all the issues with three cardinal principles in mind. First, the requirement for a fair trial: second, the requirement that a person must be entitled to defend himself.. third, that no man may be forced to incriminate himself

I view the provision of S. 12 as being intended to prevent unauthorised disclosure made by directors, officers and employees of BIA.

Mr. Pascoe has submitted that past holders of office and employees further owe a fiduciary duty and a duty of confidentiality to BIA. I am not aware of the contents of the contracts of employment, if they exist, of those persons. Mr Pascoe also relies on the nondisclosure of trade secrets or matters analogous there to. For the moment ‑ and 1 can see many skirmishes in what will inevitably be a long and protracted encounter between the two parties each seeking the high ground before the battle royal begins ‑ this is not of direct concern.

S. 12, as it now stands, acknowledges disclosure in certain limited circumstances: performance of duties and exercise of functions. when lawfully required to do so by any Court: when the provisions of any written law requires.

The Attorney General, in giving the undertaking, had clearly in mind the concept of a fair trial. He was not granting a pardon for offences not yet committed for it did not lie within his power to grant a pardon of any description. He is in charge of prosecutions. He is, in my judgment, informing the defendants that any disclosure made which might contravene the provision of S. 12 will not attract prosecution by him leading to a situation which could result in the necessity for a pardon at some later stage.

A sensible attitude which should put the defendant's minds at ease. I appreciate that the defendants may find witnesses willing to assist and, if necessary, to give evidence few on the ground given the nature of the 1^st Plaintiff. But that is another matter.

The undertaking which he has given puts into effect the decision not to prosecute and is adequate for purposes for which it was intended.

Self Incrimination.

This is bound up with the fears expressed by Prince Jefri of what I might call "cross polination". Concurrent investigations are being carried out by the Anti Corruption Agency, the Attorney General and, for want of a better expression, the civil side.

Clearly there has been an exchange of information as between these bodies. It is important, in this context, to bear in mind that information given to the Anti Corruption Agency, some at least under compulsion, is information for the purpose of the Act which created it.

Undertakings to protect again self‑incrimination had been given before the appearance before us. Mr Pascoe has now produced a Protocol to cater for a clear division of powers between each of those investigating bodies.

I am satisfied that a combination of both the undertakings, as they now stand, and the Protocol obviates the necessity for self‑incrimination and by so doing protects that essential right. Their effect is to permit the defendants to make disclosures of information ‑ and this will inevitably, given the complexity of the matter and the sums involved, take time ‑ without putting themselves in danger. No Court would permit an Attorney General to resile from such undertakings, nor allow him to produce in evidence, in any prosecution relating to ancillary proceedings, matters which emanated from such information.

Professional fees and living expenses.

The fees for the professional advisors ‑ and in that phrase I include lawyers fees and those of accountants and investigators ‑ which list is not exhaustive ‑ will be substantial. The plaintiffs have already been carrying on an investigation for over two years. Any disclosure exercise will involve time and expense. The defendants must be permitted to have funds available to them to defend themselves properly.

That having been said, the plaintiffs are entitled to say: that the defendants should not have a blank cheque: it may well be shown to be our money which is being expended: that expenditure of our money, if permitted at all ‑ and we want to have a say in this should arise only after we are aware of the personal assets, if any, of, in particular, Prince Jefti and Prince Hakeem, to see the degree of penetration into the "trust money" necessary to ensure that there is a fair trial.

I accept that the Chief Justice was attempting, by the Orders he made, to ensure that funds were available to the defendants. And any such order is at his discretion and not to be lightly disturbed by this Court. But there must be evidence upon which a judge's discretion can bite.

At first blush I found the submission of Miss Montgomery that there was such evidence, coming from the plaintiffs own affidavits, attractive. On further consideration, however, I think the contents of the affidavits to which we have been referred are no more than matters which have resulted from the investigation the plaintiffs have carried out, are not exhaustive and have been put before us as examples of what those investigations have so far shown. They are, in any event, not evidence from the defendants.

In my judgment these must be something from the defendants themselves to, at the very least, give an outline of their free assets, if any, with subsequent details of them when those details are available. A man must be taken to have a general knowledge of that which he holds. I accept that there may be an overlap as between that which is alleged to be the "trust funds" and the free assets. But the first essential step is to inform the Court of the defendant's position before the Court can begin to make an expenditure order.

Later comes the balancing exercise ‑ and this may be a very difficult one required to ensure that trust funds are not dissipated while at the same time permitting a proper defence. The proportionality as between the sum claimed and the professional fees may appear small but that expenditure itself will be, to the ordinary man, a matter of some considerable moment: As it will be to the plaintiffs.

The same principles apply to living expenses. I see no reason why Prince Jefri or Prince Hakeern should not place on affidavit ‑ not merely by letter ‑ a statement of exactly what their current expenditure on this score is and what is included in it.

It follows that I am in agreement with the orders proposed by My Lord President on the appeals that are before us. 

FUAD, P.:

In handing down these judgments, we make an Order nisi that the defendants must pay the plaintiffs' costs in each of the three appeals and of the summonses in the High Court. The Order will become absolute unless it is amended by the Court after hearing any submissions the parties may wish to make on 13 May at 9 a.m..

Martin Pascoe and                   for the Plaintiffs

Stephen Atherton

Clare Montgomery QC,                   for Prince Jefri

Muhammad Zainidi and

Ewan McQuater

Barbara Dohmann QC and                   for Prince Hakeem

Muhammad Zainidi

[Civil Appeals Nos.3,4 and 5 of 20001

 APPENDIX

PROTOCOL FOR AN INFORMATION BARRIER

 General

1        In this Protocol:

(1) Disclosed Information means any information disclosed by the First Defendant or by any other Defendant pursuant to the order of 21 February 2000 (as amended) or any other order in Suit No 31 of 2000, and includes any summary or record of information disclosed and any document or information directly or indirectly deriving from information disclosed;

(2) Disclosure Date means the date upon which Disclosed Information is first disclosed by the First Defendant or any other Defendant.

2.       The undertakings and steps referred to below will take effect on the Disclosure Date. The purpose of this Protocol is to ensure that the Disclosed Information is not transmitted to the relevant Brunei prosecuting authorities.

Anti‑Corruption Bureau

3.       Hajah Intan Kassim, the Deputy Director of the Anti‑Corruption Bureau (ACB) (the Deputy Director), will be given sole responsibility and, together with such members of ACB staff or other persons as she may appoint or instruct in that capacity (the Appointed ACB Staff), sole conduct of the investigation by the ACB of any potential offence under the Prevention of Corruption Act arising out of misappropriations of funds from the Brunei Investment Agency (BIA) between 1983 and June 1998 and the ACB's involvement in or conduct of any prosecution of any such offence (the ACB investigation).

4.       The Deputy Director acknowledges that she and the Appointed ACB Staff shall not be entitled to have access to any of the Disclosed Information and undertakes that –

(1) she will not require (whether by the exercise of any statutory powers or otherwise) any of the Disclosed Information to be disclosed to her or any member of the Appointed ACB Staff,

(2) the ACB investigation will be based at and conducted exclusively from the ACB premises at Old Airport Road, Bandar Seri Begawan 2006, at which all members of the ACB Appointed Staff will work when engaged upon the ACB investigation; and

(3) she will not enter the premises occupied by Freshfields and Arthur Andersen (AA) at 16 Jalan Tutong; and

(4) she will instruct each member of the Appointed ACB Staff that:

(a) he is not to seek to require (whether by the exercise of any statutory powers or otherwise) any Disclosed Information to be disclosed to him; and

(b) he is not to enter the premises occupied by Freshfields and AA at 16 Jalan Tutong;

5.       Each member of the Appointed ACB Staff will on appointment sign a copy of this Protocol to confirm that he has been instructed as set out in paragraph 4(4) above and will comply with such instructions.

6.       Yang Dimuliakan Pehin Orang Kaya Seri Utama Dato Seri Paduka Awang Haji Yahya Bin Begawan Mudim Dato Paduka Haji Bakar (Pehin Yahya), the Director of the ACB, undertakes that he will:­

(1)      take no further part in the ACB investigation which will be the sole responsibility of the Deputy Director;

(2)      not disclose any of the Disclosed Information to any of the following:­

(a)           the Deputy Director;

(b)           any member of the Appointed ACB Staff,

(c)           the Attorney General; and

(d)           any member of the Appointed AG Staff (as defined below),

(3)      not discuss Suit No 31 of 2000 with or in the presence of any of the following:

(a)           the Deputy Director;

(b)           any member of the Appointed ACB Staff,

(c)           the Attorney General; and

(d)           any member of the Appointed AG Staff,

(4)      not take any papers containing the Disclosed Information or any summary or record thereof into the ACB premises at Old Airport Road, Bandar Seri Begawan 2006; and

(5)      if he takes any papers containing the Disclosed Information or any summary or record thereof into the Attorney General's Chambers at the Law Building, KMI‑5 Jalan Tutong, will keep such papers in his possession and will not permit the Attorney General or any of the Appointed AG Staff to see such papers.

Attorney General

7.       The Attorney General will have sole responsibility for and, together with such members of the Attorney General's Chambers or other persons as he may appoint or instruct in that capacity (the Appointed AG Staff), sole conduct of the investigation by the Attorney General's office of any potential offence arising out of the misappropriations of funds from the BIA between 1983 and June 1998 and that office's involvement in or conduct of any prosecution of any such offence (the AG investigation).

8. The Attorney General will cease acting as the attorney of record for the Plaintiffs in Suit No 31 of 2000 and will play no further part in such proceedings.

9. The Attorney General acknowledges that he and the Appointed AG staff shall not be entitled to have access to any of the Disclosed Information and undertakes that -

(1) he will not require (whether by the exercise of any statutory powers or otherwise) any of the Disclosed Information to be disclosed to him or any member of the Appointed AG staff,

(2) he will not enter the premises occupied by Freshfields and Arthur Andersen at 16 Jalan Tutong;

(3) he will instruct each member of the appointed AG staff that

(a) he is not to seek to require (whether by the exercise of any statutory powers or otherwise) any Disclosed Information to be disclosed to him, and

(b) he is not to enter the premises occupied by Freshfields and AA at 16 Jalan Tutong;

10. Each member of the Appointed AG Staff will on appointment sign a copy of this protocol to confirm.

(1) that he has been instructed as set out in paragraph 9(3) above and will comply with such instructions;

(2) that he has not had access to any of the Disclosed Information and has not discussed Suit No 31 of 2000 with the Solicitor General, Nor Hashimah Haji Mohd Taib (Nor Hashimah) or Haji Mohd Rosli Ibrahim (Haji Rosli);

The Solicitor General

11.     The Solicitor General will become the attorney of record for the Plaintiffs and undertakes to file any appropriate documents with the court.

12.     The Solicitor General undertakes that she will:­

(1)      play no further part in the ACB investigation or the DPP investigation.,

(2)           not disclose any of the Disclosed Information to any of

(a) the Deputy Director;

(b) any member of the Appointed ACB Staff,

(c) the Attorney General;

(d) any member of the Appointed AG Staff, and

(e) any member of her staff other than Nor Hashimah and Haji Rosli..

(3)      not discuss and will instruct Nor Hashimah and Haji Rosli not to discuss Suit No 31 of 2000 with or in the presence of any of the following:

(a) the Deputy Director;

(b) any member of the Appointed ACB Staff,

(c) the Attorney General.

(d) any member of the Appointed AG Staff, and

(e) any member of her staff other than Nor Hashimah and Haji Rosli;

(4)      not take and will instruct Nor Hashimah and Haji Rosli not to take any papers containing the Disclosed Information or any summary or record thereof into the ACB premises at Old Airport Road, Bandar Seri Begawan 2006; and

(5)      not permit and will instruct Nor Hashimah and Haji Rosli not to permit any of the Deputy Director, any member of the Appointed ACB Staff, the Attorney General and any member of the Appointed AG Staff to have access to any papers in her possession or under their control containing Disclosed Information to or any summary or record thereof.

13.     Each of Nor Hashimah and Haji Rosli will sign this protocol to confirm that they have been instructed as set out in paragraph 12 (3) (4) and (5) hereof and will comply with those instructions.

Thomas Waring

14.          Thomas Waring, the Legal Affairs Advisor to the Government of His Majesty the Sultan, undertakes that he will:-

(1)      take no further part in either the ACB investigation or the AG invertigation;

(2)          not disclose any of the Disclosed Information to any of

(a)the Deputy Director;

(b)any member of the Appointed ACB Staff

(c )the Attorney General; and

(d)any member of the Appointed DPP Staff;

(3)          not discuss Suit No 31 of 2000 with any of the following:-

(a)the Deputy Director;

(b)any member of the Appointed ACB Staff;

(c )the Attorney General; and

(d)any member of the Appointed AG Staff;

(4)      not permit any of the Deputy Director, any member of the Appointed ACB Staff, the Attorney General and any member of the Appointed AG Staff to have access to any papers in his possession or under his control containing the Disclosed Information or any summary or record thereof

Financial Task Force

15.     Each member of the Financial Task Force undertakes that he will:­

(1)      take no further part in either the ACB investigation or the AG investigation;

(2)           not disclose any of the Disclosed Information to any of.

(a) the Deputy Director;

(b) any member of the Appointed ACB Staff,

(c) the Attorney General; and

(d) any member of the Appointed AG Staff,

(3)      not discuss Suit No 31 of 2000 with or in the presence of any of the following:

(a) the Deputy Director;

(b) any member of the Appointed ACB Staff,

(c) the Attorney General; and

(d) any member of the Appointed AG Staff,

(4)      not permit any of the Deputy Director, any member of the Appointed ACB Staff, the Attorney General and any member of the Appointed AG Staff to have access to any papers in their possession containing the Disclosed Information or any summary or record thereof

Arthur Andersen (AA)

16.     AA undertake that they will:

(1)           not disclose any of the Disclosed Information to any of

(a) the Deputy Director;

(b) any member of the Appointed ACB Staff,

(c) the Attorney General; and

(d) any member of the Appointed AG Staff,

Freshfields

17.          Freshfields undertake that they will:

(1)      not disclose any of the Disclosed Information to any of

(a) the Deputy Director.

(b) any member of the Appointed ACB Staff,

(c) the Attorney General; and

(d) any member of the Appointed AG Staff,

following:

(a) the Deputy Director;

(b) any member of the Appointed ACB Staff,

(c) the Attorney General; and

(d) any member of the Appointed AG Staff,

(3)      not permit any of the Deputy Director, any member of the Appointed ACB Staff, the Attorney General and any member of the Appointed AG Staff to have access to any papers in their possession containing the Disclosed Information or any summary or record thereof.

Further Undertakings

18.     The Plaintiffs undertake that any professional or other agent (other than Freshfields and AA) instructed to act on their behalf in relation to Suit No 31 of 2000 will be instructed that he must:

(1) not disclose any of the Disclosed Information to any of..

(b) any member of the Appointed ACB Staff,

(c) The Attorney General; and

(d) Any member of the Appointed AG Staff,

(2)      not discuss Suit No 31 of 2000 with or in the presence of any of the following:­

(a) the Deputy Director;

(b) any member of the Appointed ACB Staff,

(c) the Attorney General; and

(d) any member of the Appointed AG Staff,

(3)      not permit any of the Deputy Director, any member of the Appointed ACB Staff, the Attorney General and any member of the Appointed AG Staff to have access to any papers in his possession containing the Disclosed Information or any summary or record thereof.

19      (1) Each such professional or other agent will on appointment sign a copy of this Protocol to confirm that he has been instructed as set out in sub‑paragraphs (1) to (3) of paragraph 18 above and that he will comply with such instructions.

(2) The Plaintiffs further undertake that no such professional or other agent will be provided with any Disclosed Information unless he has been instructed in accordance with paragraph 18 and signed a copy of this Protocol in accordance with sub‑paragraph 19(1) above.

Variation and discharge of the undertakings set out above

19.     The undertakings set out above may be varied or discharged by the consent of the parties or order of the Court.

Courtesy of: