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

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