[1989] 3 All ER 466

The first defendant, H, an Iraqi citizen, was the first director general of the plaintiff organisation, which was set up by 22 Arab states in 1976. H's appointment ceased in 1982 and subsequent investigations by the plaintiff's internal auditor and a firm of chartered accountants into heavy losses appearing in a particular account led to the discovery of bank accounts in Luxembourg in the plaintiff's name which were not recorded in its books. The accountants reported that H had defrauded the plaintiff of about $US50m by various means, including unrecorded foreign transactions, false entries covering payments out and retention of interest paid to the plaintiff but not immediately entered into the plaintiff's books. In 1984 the plaintiff decided to prosecute H in the United Arab Emirates and to investigate bringing proceedings in other jurisdictions. In 1987 after a trial in his absence H was found guilty in Abu Dhabi of 47 charges of breach of trust and forgery and ordered to repay $US80m. No part of that sum was repaid. Further investigation of the Luxembourg accounts revealed transfers in excess of $US25m to Swiss bank accounts in the names of H and his wife, with the result that criminal proceedings were commenced against H in Switzerland. Those proceedings were dismissed in 1988 when H's objection to the Swiss court's jurisdiction was sustained on the grounds that he had transferred over $US25m out of the Swiss bank accounts and had no assets remaining in Switzerland at the time the complaint was filed. Parallel proceedings were commenced against H in Guernsey in 1986 but were later dismissed on the same ground. In 1988 the plaintiff's solicitors learnt that H was in London and applied for and obtained ex parte a three-part order against H, comprising a worldwide Mareva injunction preventing the dissipation of his assets, an order for disclosure of his assets within or without the jurisdiction to be verified by H and his wife on affidavit within seven days after service of the order, and an order not to leave the jurisdiction until 72 hours after service of the affidavit and to deliver up to the plaintiff's solicitors all his passports. H sought to set aside the order, contending that the plaintiff had failed to disclose material facts pertaining to the allegations of fraud and that, since s 14(1)^a of the Civil Evidence Act 1968 did not expressly rule out a discretionary privilege against self-incrimination and the incrimination of others in relation to criminal offences and penalties under foreign laws, the court should have exercised that discretion in his favour because, in view of the fact that it was a capital offence under Iraqi law for an Iraqi citizen to acquire or maintain assets outside Iraq without appropriate consent, if H were required to disclose details of assets held outside Iraq without consent, irrespective of whether such assets were within the jurisdiction and whether they were misappropriated, such disclosure would endanger not only the lives of H and his wife but also the lives of members of their family resident in Iraq.

466

Held - (1) Although on its true construction the purpose of s 14(1) of the 1968 Act was to remove any doubt whether an absolute or discretionary privilege against self-incrimination extended to criminal offences and penalties under foreign law, by limiting the privilege to criminal offences and penalties provided for by United Kingdom law, there was no reason why the possibility of self-incrimination or the incrimination of others should not be a factor to be taken into account by the court in deciding whether, and in what terms, a disclosure order should be made. In exceptional circumstances the court had a limited jurisdiction to order that facts required to be disclosed by one party should not be disclosed to the other party, provided that they were disclosed to someone on that party's side who could effectively deal with the matter. Accordingly, since the evidence did not show that H would risk criminal proceedings in Iraq if required to disclose details of his assets, there was no reason to discharge the disclosure order but it would be varied to limit disclosure to the plaintiff's solicitors of the identity of third parties who were resident in Iraq on the date when the court's order was first issued, in order to protect the identity of such parties who might otherwise be revealed as having committed offences in Iraq while at the same time enabling some investigation to be undertaken to ensure due verification of compliance with the court's order (see p 474 a to d and p 476 j to p 477 a d to f, post); Re Moritz (decd) [1959] 3 All ER 767 and Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354 applied; dicta of Lord Diplock in Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434 at 464, of Sir John Donaldson MR in WEA Records Ltd v Visions Channel 4 Ltd [1983] 2 All ER 589 at 591, 594 and of Sir Nicolas Browne-Wilkinson V-C in Dormeuil Fr�res SA v Nicolian International (Textiles) Inc [1988] 3 All ER 197 at 200-201 considered.
   (2) Since the allegations of material non-disclosure by the plaintiff had not been made out, the court's order would not be discharged; it would, however, be varied to limit the scope of disclosure and, additionally, to allow the time for service by H of his affidavit to be extended to 14 days provided that the restriction placed on his leaving the jurisdiction prior to service of the affidavit was similarly extended, and, further, to restrain H and his wife from leaving the jurisdiction until seven days after service of the affidavit (see p 472 b to d, p 475 h j and p 477 g h, post).

Notes
For privilege from production of documents exposing a party to penalties, see 13 Halsbury's Laws (4th edn) para 92, and for cases on the subject, see 18 Digest (2nd reissue) 223-229, 1925-1988.
   For the Civil Evidence Act 1968, s 14, see 17 Halsbury's Statutes (4th edn) 173.

467

Application
The first defendant, Jawad Mahoud Hashim, applied to discharge an order made by Morritt J on 5 December 1988, on an ex parte application by the plaintiff, the Arab Monetary Fund, granting (i) a worldwide Mareva injunction against the first defendant, the second defendant, Salwa Al Rufaiee (his wife), and two companies in which he had an interest, JOJ Anstalt and Rutland Holdings Ltd, largely in support of a tracing claim against all four defendants relating to a large-scale fraud allegedly engineered by the first defendant, (ii) an order that the first defendant should disclose forthwith to the plaintiff's solicitors all his assets within and without the jurisdiction to be verified by him and by the second defendant on affidavit within seven days after service of the order, the immediate disclosure requirement of which was subsequently suspended by Morritt J on 6 December to enable the first defendant to apply to have the order set aside, and (iii) an order that the first defendant should not leave the jurisdiction until 72 hours after service of such affidavit and should deliver up to the plaintiff's solicitors all his passports, on the ground of material non-disclosure by the plaintiff and also because the first defendant should not be required to incriminate himself, his wife and others. The hearing took place partly in camera but judgment was given by Morritt J in open court. The facts are set out in the judgment.

13 December 1988. The following judgment was delivered.

MORRITT J. This is an application by the first defendant to discharge an order I made on Monday, 5 December 1988. The order comprises three parts, namely (1) a worldwide Mareva injunction, largely in support of a tracing claim against all four defendants on 15 December 1988, (2) an order that the first defendant should disclose forthwith to the plaintiff's solicitors all his assets within and without the jurisdiction to be verified by him and the second defendant on affidavit within seven days after service of the order; and (3) a Bayer AG v Winter [1986] 1 All ER 733, [1986] 1 WLR 497 order that the first defendant should not leave the jurisdiction until 72 hours after service of such affidavit and should deliver up to the plaintiff's solicitors all his passports.
   The first defendant contends that the Mareva injunction should be discharged on the ground of material non-disclosure, that the disclosure order should be discharged on the same ground and also because the first defendant should not be required to incriminate himself, his wife, the second defendant, and others, and that, if this order is discharged, the Bayer AG v Winter order should be discharged also.
   The plaintiff is an organisation set up by 22 Arab states by a treaty made in 1976. The first defendant was its first director general. He is an Iraqi. He served from 1977 to 1982. When his appointment ceased in 1982, he did not return to Iraq and has not been there since 1979.
   In January 1983 Mr Salah Al Hafidh, the plaintiff's principal deponent, became the plaintiff's internal auditor. One of the first tasks set by the new director general was to examine heavy losses appearing in a certain 'Difference on Conversion Account No 444'. His investigation led him to an account with the Dresdner Bank AG in Luxembourg. 468Inquiries of that bank suggested that the account was in the name of the plaintiff, but not recorded in the plaintiff's books, and that certain journal vouchers of the plaintiff's were fictitious.
   In consequence, in May 1983 the plaintiff instructed a firm of chartered accountants, Messrs Ernst & Whinney, to carry out an investigation. Ernst & Whinney reported to the plaintiff on 16 September 1983. In their covering letter they stated:

A little further on they state:

   In their report Ernst & Whinney concluded that the plaintiff had been defrauded of some $US50m by, principally, three methods: firstly, unrecorded foreign exchange transactions which, if they turned out to be profitable, were never entered in the plaintiff's books although those resulting in losses were; secondly, direct payments out covered by false entries; thirdly, the retention of interest on sums paid to the plaintiff but not immediately credited to accounts of the plaintiff in the plaintiff's books.
   Ernst & Whinney indicated that the proceeds of such frauds had been withdrawn from the two accounts which had received them, namely Bank of Credit and Commerce International (the BCCI) and Dresdner Bank in Luxembourg.
   In April 1984 the plaintiff decided to prosecute in the United Arab Emirates and to investigate proceedings in other jurisdictions. In May 1984 a criminal complaint was lodged in Abu Dhabi. The prosecution authorities appointed a committee of experts to investigate. In 1985 the first defendant and others were prosecuted. On 10 October 1985 the first defendant was summoned to attend, but he did not appear. Apart from circulating what was described as a defence memorandum, he took no part and was tried in his absence. Between October 1985 and 14 February 1987 there were 53 sessions of the Abu Dhabi court. On 16 March 1987 the first defendant was found guilty of 47 charges of breach of trust and forgery. He was sentenced to lengthy terms of imprisonment and ordered to repay the plaintiff $US80m. No part of this sum has been paid.
   In the mean time, Messrs Shearman & Sterling were in April 1984 appointed by the plaintiff to investigate the possibility of proceedings in other jurisdictions. They investigated the two accounts in Luxembourg and discovered substantial transfers out of those accounts to two accounts in Switzerland. Accordingly, lawyers were instructed on behalf of the plaintiff in Switzerland and on 22 March 1985 a criminal complaint was filed against the first defendant and the two accounts were frozen by order of the Swiss court.
   On 27 June 1985 the Swiss court appointed two experts to investigate transfers into and out of the two Swiss accounts. On 15 January 1987 such experts reported to the Swiss court. That report showed a series of bank accounts in Switzerland in the names of the first and second defendants, to which transfers had been made from the two accounts in Luxembourg and otherwise from the plaintiff in excess of $US25m. It also showed the payment out from the account of the first and second defendants of sums also in excess of $US25m to other accounts of the first defendant and to other organisations controlled by him.
   The payments out had been completed by 1984, with the result that the first defendant had no assets in Switzerland at the time that the criminal complaint was filed. In consequence the first defendant's objection to the jurisdiction of the Swiss court was sustained, and those proceedings were finally dismissed on 25 May 1988.

469

   In February 1986 proceedings were also commenced against the first defendant in Guernsey and a freezing order obtained over certain accounts there. Those proceedings were also dismissed because, by the time the proceedings were commenced, the money had moved on. As a result the Guernsey court lacked jurisdiction.
   In April 1984 consideration was also given to proceedings in Canada and England. The former were deferred pending the outcome of the other proceedings to which I have referred. The latter were not commenced after inquiries as to where the first defendant was indicated that, whilst he might have assets here, the first defendant himself could not be found.
   In September or October 1988 Interpol told the plaintiff that the first defendant had recently entered England, and on 26 October 1988 the first defendant sent a telex to Ernst & Whinney in Abu Dhabi. He complained that Ernst & Whinney's report, to which I have referred, was submitted to the courts in Abu Dhabi, Switzerland and Guernsey as a final report, when, as he alleges, it was not, that a document submitted to the Swiss court was a forgery and that the plaintiff's accounts for 1984 and subsequent years contained no notes or adjustments such as would be expected if it had, indeed, been defrauded. The telex ended by giving an address in Knightsbridge to which Ernst & Whinney were invited to reply. This was an address of which the plaintiff had been aware in 1984, but the telex indicated that the first defendant was now physically present.
   On 21 November 1988 the plaintiff instructed its present solicitors, who in turn employed an inquiry agent. On Friday, 2 December 1988 the inquiry agent reported that the first defendant was in London. Application was made to me first thing on Monday, 5 December 1988, and I made the order that the first defendant now seeks to have set aside. On the afternoon of Tuesday, 6 December the first defendant applied for a variation of that part of my order requiring immediate disclosure, to which I acceded, so that he might have 48 hours in which to apply to set aside the order, if so advised. That is the application that is now before me. Evidence has been sworn by the first defendant and others on his behalf.
   The order for disclosure has not yet been complied with and the return date for the notice of motion to continue the Mareva injunction and, so far as necessary, the Bayer AG v Winter order has not yet arrived. In those respects the position is different from that confronting Sir Nicolas Browne-Wilkinson V-C in Dormeuil Freres SA v Nicolian International (Textiles) Ltd [1988] 3 All ER 197, [1988] 1 WLR 1362. In that case Sir Nicolas Browne-Wilkinson V-C stated ([1988] 3 All ER 197 at 200-201, [1988] 1 WLR 1362 at 1369-1370):

   In my judgment, the approach I should follow on this application is to consider whether on all the evidence now before me, including any deliberate non-disclosure of material facts, the order I made on 5 December 1988 would be made now. I propose, therefore, to consider the facts which it is alleged were not disclosed on 5 December 1988 from that point of view.
   Such alleged non-disclosure was helpfully summarised in seven points by counsel for the first defendant. The first, second and sixth dealt with the question of self-incrimination, to which I shall return later. The third point was that the Ernst & Whinney report was provisional and that the plaintiff's 1984 and subsequent accounts did not restate the figures for earlier years so as to take account of the alleged frauds. The consequence, as alleged, is that the plaintiff has tacitly recognised that there was no such fraud. The point was clearly raised in the first defendant's telex to Ernst & Whinney of 26 October 1988 and in the defence memorandum, both of which I read in full on the ex parte application. Moreover, this is not a dispute that I can resolve. Mr Murrie of Messrs Spicer & Oppenheim says that there is no adequate restatement in the 1984 accounts even though they show a difference on revaluation of opening balances as at 1 January 1983. Mr Al Hafidh disagrees. The Ernst & Whinney report shows that this revaluation may take account of the alleged frauds together with errors which understated material figures in earlier years. However, even if Mr Murrie is right, it does not lead to the alleged conclusion. I cannot believe that the plaintiff would have taken the steps it has in the United Arab Emirates, Switzerland and Guernsey if it had recognised since 1984 that there had been no fraud.
   The fourth point was that the plaintiff had given a false impression as to the shortage of time available to it to prepare its case and that it had only recently become aware of the first defendant's presence in England. The first defendant points to an exchange of telexes in April 1984 in which he gave two addresses in England at which he could be reached, and a letter sent to one of those addresses by the plaintiff in September 1984. That the addresses were already known to the plaintiff had been disclosed by the report of its inquiry agent made in 1984. It did not know that the first defendant was here himself until he was seen on 2 December 1988. In between those dates the first defendant had sworn an affidavit in proceedings in Illinois in June 1986 stating:

   The fifth and seventh points were that the plaintiff had produced to the Swiss courts a document which the first defendant contended had been forged and that the first defendant had filed a complaint in Geneva accordingly. The allegation of forgery was plainly made in the first defendant's telex of 26 October 1988. The document in question has now been identified as that relating to the opening of one of two accounts with the471 BCCI in Luxembourg. It is suggested that the document, which is a photocopy, has been tampered with so as to cut out the name of the account holder and leave the impression that the account was in the name of the plaintiff. This may or may not be the case, although the allegation is quite inconsistent with the letter from that bank. That is only one of three unrecorded bank accounts in Luxembourg through which the alleged frauds were perpetrated, and I cannot see how it would assist the first defendant to establish that such an account was in a name other than that of the plaintiff.
   Accordingly, I find that these allegedly undisclosed facts were disclosed and that they do not in any event indicate that my order would not now be made or, so far as is required, should not now be continued.
   The allegations against the first defendant have been investigated in great detail by Ernst & Whinney and the courts in Abu Dhabi and in Switzerland. The latter, in particular, did not merely accept Ernst & Whinney's report, but sought and obtained independent corroboration. The evidence as a whole demonstrates a strong case against the first defendant, a clear propensity to move assets around the world so as to avoid any judgment that the plaintiff might obtain and a remarkable ability to keep one step ahead of the plaintiff in whichever jurisdiction it chooses to institute proceedings.
   Accordingly, subject to the question of self-incrimination and certain points of detail, I would now make the order I made on 5 December 1988 or, so far as necessary, continue it, and, again, subject to those points, dismiss this application.
   The first defendant has referred to the report of the United States State Department, dated February 1986, and submitted to the Committee on Foreign Affairs of the House of Representatives and of the Senate. That report states (pp 1248, 1252):

   He also refers to the 1986 report of Amnesty International to the United Nations, which states (pp 6-7):

   In his affidavit, the first defendant states (para 15):

He then refers to the reports from which I have just quoted, and then continues: 'I verily believe that this state of affairs and these reports have at all times been known to the Plaintiffs.'
   Section 14(1) of the Civil Evidence Act 1968 provides:

   Counsel for the first defendant accepted before me that there was no privilege against self-incrimination in relation to possible criminal offences under the law of Iraq, but he reserved the point for argument in a higher court. Instead he argued that the court has a discretion, which has survived the enactment of s 14 of the 1968 Act. The basis of such a discretion was said to be twofold: (1) the cases which preceded s 14 and (2) s 37 of the Supreme Court Act 1981. The earlier cases to which I was referred were King of the Two Sicilies v Willcox (1851) 1 Sim NS 301, 61 ER 116, USA v McRae (1867) LR 3 Ch App 79 and Re Atherton [1912] 2 KB 251. The first two authorities led the Law Reform Committee in its 16th report, Privilege in Civil Proceedings (Cmnd 3472 (1967)) para 11, to state:

   Section 14 was enacted against that background. The point next arose in Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434, [1978] AC 547. The argument of counsel asserted a discretion as to privilege at common law which survived the 1968 Act (see [1978] AC 547 at 587). This part of counsel's submission was dealt with by Lord Diplock where, after quoting s 14, he said ([1978] 1 All ER 434 at 464, [1978] AC 547 at 636):

473

   In the light of the reported submissions of counsel, I can only regard this as the negation of any discretionary privilege. At the trial of a civil action, a judge does not normally have any discretion as to the admission of relevant and admissible evidence. If he has no discretion at that stage, I do not see how any discretionary privilege can exist at any earlier stage.
   However, the source of the jurisdiction to grant interlocutory injunctions is s 37 of the Supreme Court Act 1981. The jurisdiction is discretionary within the principles laid down in the decided cases. In the case of self-incrimination for offences under the law of any part of the United Kingdom, subject to, for example, s 31 of the Theft Act 1968 and s 72 of the 1981 Act, privilege exists. In the case of offences under the criminal law of a foreign state, there is no privilege, but I see no reason why the possibility of self-incrimination or the incrimination of others should not be a factor to be taken into account in deciding whether and, if so, in what terms a disclosure order should be made.
   Accordingly, I turn to consider the first defendant's case in this respect. I have already referred to the two reports on which he relies and the passage in his affidavit in which his fears are summarised. The plaintiff does not accept that any offence would be disclosed and alleges that the evidence as a whole shows that compliance with my order for disclosure would not give rise to any increased risk of what the first defendant fears actually occurring.
   First, the judgment of the court in Abu Dhabi contains plain findings that the first and second defendants, both Iraqis, have assets outside Iraq in accounts in Switzerland and elsewhere, derived from money of which that court found that the first defendant had defrauded the plaintiff. Second, the report of the experts appointed by the Swiss court, which confirmed, after cross-checking, substantial parts of the Ernst & Whinney report, also identified assets of the first defendant or of trusts and entities under his control held outside Iraq and derived from the plaintiff. The evidence in support of that report includes four documents bearing the first defendant's signature, which effected transfers of money from one account outside Iraq to another. Third, the evidence and judgment in the Guernsey proceedings clearly identified assets held outside Iraq by the first defendant or trusts or entities set up by him. Fourth, in proceedings in Illinois in the first defendant's complaint, which was not in any sense a private document, the first defendant positively asserted the existence of his substantial assets outside Iraq and of trusts and other entities created by him, holding substantial assets derived from him. Fifth, in proceedings in Ontario, Canada for the purpose of obtaining some form of licence as an investor, the first defendant again asserted the existence of substantial assets, owned or controlled by him outside Iraq.
   The first defendant or his wife have not returned to Iraq since 1979. In April 1988 the first defendant obtained an Iraqi passport from the Iraqi Embassy in London, and he claims to have been living openly in Canada or London ever since 1983. The documents relating to the five sets of proceedings to which I have referred are all now and have for some time been in the hands of the plaintiff.
   There is no evidence at all of any steps being taken by anyone against the first and second defendants so as to give credence to the fears which the first defendant expresses.
   I have been referred to Rank Film Distributors Ltd v Video Information Centre [1981] 2 All ER 76, [1982] AC 380. In that case Bridge LJ in the Court of Appeal referred to the information which might form a link in the chain or be corroborative of existing material as matter protected by the privilege against self-incrimination (see [1980] 2 All474 ER 273 at 283, [1982] AC 380 at 412). In the same case Lord Wilberforce did not think that the plaintiffs undertaking not to use the information obtained, except for the purposes of those civil proceedings, was an adequate substitute for the privilege itself (see [1981] 2 All ER 76 at 82, [1982] AC 380 at 443).
   In this case there is no privilege. The question is one of discretion in seeking to do what is just between the plaintiff and the defendants. In Republic of Haiti v Duvalier [1989] 1 All ER 456 at 467, [1989] 2 WLR 261 at 274 Staughton LJ stated in relation to undertakings from the plaintiff:

   In this case the plaintiff readily gives the normal undertakings (those are expressed in paras 6 and 7 of my order of 5 December), and I have no reason to believe that either the plaintiff or its constituent states would not observe it so as to give rise to any of the matters which the first defendant says that he fears.
   The first defendant alleges that the plaintiff should have disclosed the risk to which he deposes in the principal affidavit in support of the ex parte application. But the plaintiff does not accept that any offence under Iraqi law has been committed, nor does it accept that the risk that the first defendant deposes to is real. Moreover, the passage in the affidavit sworn by the first defendant in the Illinois proceedings was read to me in the ex parte application. In the circumstances of the evidence as a whole, which I have related, I see no reason on this ground to discharge the disclosure order that I have made and, indeed, every reason to continue it.
   There are, however, certain points of detail. First, para 2 required immediate disclosure of all assets, both within and without the jurisdiction. This was made on Monday, 5 December. The order was served on 6 December, and I extended the time first for 48 hours and then to the conclusion of the hearing of this application. The first defendant says that he should have more time to obtain proper advice and to ensure proper compliance. The plaintiff says that that is quite unnecessary with regard to sub-para (i), which requires disclosures of all bank accounts. The plaintiff agrees that the first defendant should have longer for the other assets and does not oppose the first defendant's application for 14 days for swearing the affidavit required by para 3 of my order, provided that the time referred to in para 4(a) is likewise extended. I agree. Paragraph 2 requiring immediate disclosure will be confined to sub-para (i). That information and the disclosure required by sub-paras (ii) to (v) inclusive of para 2 should be contained in the affidavit required by para 3, which must be sworn within 14 days from today. The time limited by para 4(a) will be extended to seven days after service of such affidavit. Such variations are to take effect with regard to both the first and the second defendants.
   The question has also been raised on this application whether the court has jurisdiction to direct that information supplied by the first defendant should not be communicated to the plaintiff by its solicitors. The point arose when on Tuesday, 6 December the first defendant applied to me to give him a 48-hour extension. His counsel was not prepared to disclose certain matters in the presence of the plaintiff's solicitors, unless they gave an475 undertaking not to communicate such information to the plaintiff. The plaintiff's solicitors were not prepared to do so and withdrew.
   In my judgment on that application I indicated that I was concerned at giving any judgment having heard matters from one side which would never be disclosed to the other. I said that I would, if necessary, order the plaintiff's solicitors not to disclose information to their client, so that at least the plaintiff's solicitors and counsel could address me on that material.
   When this application came to be made, the problem had been sensibly dealt with by an affidavit sworn by the first defendant's solicitor, which the plaintiff's solicitors undertook not to disclose to the plaintiff without further order of the court. They now say that they should be released from the undertaking.
   The same point also arises now in respect of third parties, whose identity may be revealed by disclosure in accordance with the terms of my order.
   I have been referred to the decision of the Court of Appeal in WEA Records Ltd v Visions Channel 4 Ltd [1983] 2 All ER 589, [1983] 1 WLR 721. In that case Sir John Donaldson MR said ([1983] 2 All ER 589 at 591, 594, [1983] 1 WLR 721 at 724, 728):

However, in that case the Court of Appeal did not, so far as the reports disclose, consider Re Moritz (decd), Midland Bank Exor and Trustee Co Ltd v Forbes [1959] 3 All ER 767, [1960] Ch 251 or Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354. In the first case Wynn-Parry J approved the procedure in the Chancery Division whereby, on an application by trustees for directions as to whether the trustees should bring proceedings against a beneficiary, that beneficiary is not shown the evidence that the trustees seek to rely on. But, of course, if proceedings are sanctioned, he will find out in the end because, so far as relevant, the evidence will be adduced at the trial. In the second case the Court of Appeal recognised a procedure in intellectual property cases whereby information as to a party's invention or process is disclosed to the other party's lawyers and experts only.
   In my judgment, the two earlier cases demonstrate a limited jurisdiction to be exercised only in exceptional circumstances, whereby the court can direct that facts disclosed by one party are not disclosed to the other party, provided, of course, that they are disclosed to someone on that party's side who can effectively deal with the matter. As476 I read the judgment of Sir John Donaldson MR in WEA Records Ltd v Visions Channel 4 Ltd [1983] 2 All ER 589 at 591, 594, [1983] 1 WLR 721 at 724, 728 which I have quoted, the Court of Appeal did not exclude altogether that possibility.
   Given that such jurisdiction exists, should it be exercised? In relation to the affidavit sworn by the first defendant's solicitor, with one exception, it says no more than what the first defendant states in his own affidavit or is implicit in that affidavit. The exception relates to para 7, which suggests where some of the money went. Accordingly, it is best dealt with after I have considered what, if any, limitation I should place on the disclosure order in relation to third parties.
   The plaintiff accepts that para 2(iv)(c) and (v)(a) and (d) and in those respects para 3(ii) might go further than is required and implicate third parties in offences under Iraqi law. In this respect, it submits that disclosure should be ordered, nevertheless, but in the first instance only to the plaintiff's solicitors so that the question of whether the information should be withheld from the plaintiff can be properly tested in court. To this extent, therefore, it accepts the jurisdiction of the court to order only limited disclosure.
   I am concerned that para 2(iv)(c) of my order in particular, which requires the disclosure of the identity of the beneficiaries under a trust, should not be capable of being used to the detriment of individuals now living in Iraq. I would propose therefore to insert a proviso that para 2(iv)(c) and (v)(a) and (d) and to the same extent para 3(ii) should not require the immediate disclosure to the plaintiff of the identity of individuals who were resident and ordinarily resident in Iraq on 5 December 1988.
   This can be achieved either by limiting disclosure to the plaintiff's solicitors only or by excluding any requirement to disclose at all. In the circumstances of this case, I believe that the former is the appropriate order. Such an order will enable some investigation to be undertaken so as to ensure due verification of compliance with my order. Whereas, if I delete to that extent any obligation to disclose at all, my order would be that much the less effective.
   By that means the identity of third parties in Iraq who might otherwise be revealed to have committed offences in Iraq will be protected. Once their position has been secured, I see no need for the embargo on the persons to whom para 7 of the first defendant's solicitor's affidavit may be communicated to be continued any longer, if, but only if, the sixth and seventh undertakings contained in my order and given by the plaintiff are extended to include information contained in that paragraph of that affidavit.
   Finally, the first defendant asked for his passport to be returned to his solicitors, so a missing entry stamp could be inserted. The plaintiff opposes this not in any sense as a reflection on the first defendant's solicitors, but because passports can and do get lost. I agree. I see no need to make any variation to my order in this respect.
   Accordingly, I do not accede to the application to discharge my order. I will vary the order as indicated. I will release the plaintiff's solicitors from their undertaking in respect of para 7 of the affidavit of the first defendant's solicitor, provided that the plaintiff's undertakings given in paras 6 and 7 are extended to cover it. I will hear counsel on any other points of detail that may arise on the form of my order.