Day 083 - 06 Feb 95 - Page 13
1 "The Rhodesian companies are therefore of the view that
2 even if they had in their possession or control any
3 documents relating to the issues in the arbitration they
4 would not be obliged to make such documents available to
5 you", and I stress the next words, my Lord, "for the
6 purpose of disclosing them to the claimants. In any event
7 they do not consider that it would be in the best interests
8 of the Rhodesian companies to make such documents (if any)
9 available to you for such purpose, and such disclosure
10 would therefore be improper ..."
11
12 My Lord, I am taking this as quickly as I can. I hope that
13 I am not missing out any helpful passages. Over the page
14 at 374, letter E, just below, the Master of the Rolls, in
15 effect, comes to his conclusion, he says:
16
17 "It seems to me that there is a complete answer to all
18 these suggestions", those were suggestions made by the
19 Plaintiffs, "namely, that the only documents which Shell
20 and BP have to disclose are those which are in their
21 immediate power. But, as I have shown, these documents are
22 not in their immediate power".
23
24 By that he means, as one sees if one reads the whole
25 report, that Shell and BP were not obliged to take any
26 steps to alter the legal framework as between themselves
27 and their subsidiaries so as to give themselves a legal
28 power which they did not presently have. They were not
29 obliged, for example, to take steps to alter the articles
30 of association; they were not obliged to sack the directors
31 and replace them with "yes men", matters of that kind, just
32 so that they could. It has to be, according to these
33 authorities, a presently enforceable legal right otherwise
34 it is not a power within the meaning of the rule.
35
36 My Lord, then finally in the judgment of Lord Justice Shaw
37 on page 375, the second paragraph in the judgment, he asked
38 the question: "When is a document in the power (as
39 distinct from the possession or control) of a party?" He
40 answers it in this way:
41
42 " The question seems elementary, but it poses for me at any
43 rate a difficult philosophical problem as to what
44 constitutes power, and I must confess to some vacillation
45 as the arguments on either side proceeded. In the end I
46 have come to the view that a document can be said to be in
47 the power of a party for the purpose of disclosure only if,
48 at the time and in the situation which obtains at the date
49 of discovery, that party is, on the factual realities of
50 the case virtually in possession (as with a one-man company
51 in relation to documents of the company) or otherwise has a
52 present indefeasible legal right to demand possession from
53 the person in whose possession or control it is at that
54 time".
55
56 My Lord, in our submission (and this is not a submission we
57 take credit for; it comes, in fact, from some Chancery
58 cases which we will show your Lordship in a moment) that
59 dictum of Lord Justice Shaw which was echoed, though not in
60 precisely the same tones by Lord Diplock in the House of
