Foreign Commercial Cases Come to London – But What About Witnesses?

Seventy per cent of cases that come before the Commercial Court in London have at least one overseas party and difficulties can arise when crucial witnesses who live abroad do not attend to give evidence. Exactly that happened in a shipping case in which a high value contract was alleged to have been procured by bribery.

A Chinese shipping company had launched proceedings in London against another Chinese company that had guaranteed performance of the contract. The guarantor defended the claim on the basis that the contract was the product of bribery. That allegation was supported by signed confessions that those who were said to have been involved in the bribery had provided to the Chinese Public Security Bureau.

Following a trial in London – which none of the individuals with first-hand knowledge of the events in question attended – a judge nevertheless found that no bribe had been paid and awarded the shipping company $68.6 million in damages. Whilst not making a firm finding that the confessions had been obtained by torture, the judge said that that possibility could not be ruled out.

In upholding the guarantor’s challenge to that ruling, the Court noted that the judge’s inability to find on the balance of probabilities that torture had taken place amounted, in law, to a ruling that there had been no such torture. That was the end of the matter and he was at that point obliged to put to one side any lingering doubts he had. By allowing those doubts to influence to some extent his conclusions on the bribery issue, the judge had erred in law.

That, taken together with other flaws in the judge’s reasoning, was sufficient to render his decision unsustainable. The Court directed that the matter should be re-tried before a different commercial judge. That re-hearing would be on the basis that the allegations of torture had already been considered and rejected.