The High Court refused an application by Daniel Boon to send affidavits and exhibits filed by two defendants to Monégasque authorities investigating alleged fraud. Mr Justice Rory Mulcahy ruled on 5 December 2023 that the plaintiff had not shown that providing the documents would be consistent with the due administration of justice or avoid unfair prejudice.
The application concerned affidavits and exhibits sworn by Xin Zhao on behalf of the ninth and tenth defendants, Asia Monaco Investments Limited and Asia Monaco SARL. The documents had not been opened in court. Mr Boon sought leave to provide them to his Monégasque lawyers, who would pass them to the investigating judge in Monaco.
Mr Boon alleges that he was defrauded of almost €7 million through yacht maintenance, insurance and investment arrangements involving the defendants, particularly the first and second defendants. Those claims were background to this application; the judgment did not decide whether fraud occurred. The ninth and tenth defendants deny liability.
The court had previously granted interim asset restraints against the ninth and tenth defendants. In February 2023, they consented to interlocutory relief restraining them from reducing their assets below €4,870,412.85 pending trial. Ms Zhao had filed affidavits in response to the orders, including material opposing continuation of the restraints and material intended to meet a disclosure order.
The plaintiff argued that the documents were relevant to the Monaco investigation and that their provision would not prejudice the defendants. The ninth and tenth defendants argued the court could not safely assume there was no risk of injustice, particularly because the plaintiff was also pursuing civil remedies connected with the Monaco proceedings.
Justice Mulcahy said the plaintiff bore the burden of showing that sharing the documents would not risk prejudice, be oppressive or undermine a claim of privilege. There was no order from a Monégasque court or request from Monégasque authorities setting out how the documents would be used. The lawyers’ letter acknowledged uncertainty about possible use, including that the documents might become public if the criminal case went to trial.
The judge distinguished the case from an English decision where investigators themselves had requested documents and their likely use was understood. He refused leave to use any of the affidavits or exhibits. Because the plaintiff had not met the burden for any document, he did not decide whether different considerations applied to affidavits filed voluntarily or under compulsion of the disclosure order.
The judge gave a provisional view that the ninth and tenth defendants were entitled to costs, with execution stayed until the proceedings were determined. He listed the case for mention on 12 December 2023 to make final orders.