Aabar Holdings S.À.R.L & Others v Glencore Plc

Hearing date: 2 October 2025

Approved Consequentials Judgment

A. INTRODUCTION

The parties appear before the Court on the hearing of matters consequential upon the Court's judgment dated 28 August 2025 (“Judgment”) in respect of the Disclosure Restriction Applications (“Applications”) made by the First and Second Defendants/Applicants (“Applicants”), and which is reported at [2025] EWHC 2243 (KB).

For the purposes of this Consequentials Judgment it is unnecessary to recount the factual background to the English Proceedings and the Applications, which are addressed at length in the Judgment, and to which reference can be made.

The following matters arise for determination on this consequentials hearing:

(1) The wording of the confidentiality ring order (“CRO”). The Claimants submit that the CRO should be made in the terms proposed by the Claimants, whilst Glencore and Mr Glasenberg submit (in particular) that it should be an “external eyes only” confidentiality club.

(2) The deadline for disclosure of the documents the subject of the Applications (the Claimants submit within 2 days, Glencore and Mr Glasenberg submit within 14 days).

(3) Who should bear (i) the costs of Glencore's Application which related to alleged restrictions under Dutch law, and (ii) the costs of Mr Glasenberg's Application. Glencore and Mr Glasenberg submit that they should each be costs in the case whilst the Claimants submit that Glencore and Mr Glasenberg should pay the Claimants' costs in relation to their respective Applications. It is agreed that in relation to the costs of Glencore's Application that, insofar as the costs related to alleged restrictions under Swiss law, they should be costs in the case; and in relation to Canadian law, they should be reserved.

(4) The amount of the payment on account, and when the detailed assessment should take place. For their part the Claimants submit that a payment on account of 70% should be ordered and that there should be detailed assessment forthwith.

B. THE WORDING OF THE CONFIDENTIALITY RING ORDER

I invited the parties to agree the wording of a confidentiality club in advance of Judgment. A draft CRO, which was annotated with the parties' respective competing suggestions, was supplied by the parties to the Court on 23 July 2025 (the “Draft DRA CRO”).

In circumstances in which I had not heard full argument on such matters, and in circumstances where I anticipated that the parties might be able to narrow the differences between them on the wording of the DRA CRO, having had sight of the contents of the Judgment and the findings made therein, I deferred the resolution of the differences between the parties on the precise wording to the present hearing (as identified at [204] of the Judgment). In the event the parties did not engage in any further correspondence in relation to the terms of the Draft DRA CRO following the receipt and hand-down of the Judgment.

The essential scheme of the DRA CRO has been agreed. Broadly:

(1) The DRA CRO relates to the “DRA CRO Documents” (i.e., the FIOD Documents and MLAT Request) and the information contained in them (“Confidential Information”).

(2) Paragraph 2 provides that:

(i) If and when those documents are produced for disclosure, they are to be provided subject to the terms of the DRA CRO and made available solely to the DRA CRO Members.

(ii) No DRA CRO Document, or Confidential Information, is to be made available to any other person or party, save in accordance with the terms of the DRA CRO.

(3) There is a dispute as to who should be the members of the CRO. Subject to the resolution of that dispute, each eligible person is required to sign an Undertaking before becoming a DRA CRO Member (see the definition of “DRA CRO Member” at paragraph 1(e)). The solicitors for each of the parties shall maintain a register of the DRA CRO Members for that party (paragraph 6), and there are provisions for the addition and removal of Members.

(4) There are provisions in relation to the destruction of Confidential Information (paragraphs 11 to 12), and for the confidentiality obligations to continue following the conclusion of the Proceedings (paragraph 13).

The points of difference between the parties are as follows:

(1) The Applicants seek a CRO on “external eyes only” (“EEO”) terms, whereas the Claimants propose what they characterise as a “conventional” (i.e. not an EEO) CRO. This explains the differences in the parties' rival drafting at paragraphs 1(c)(ii), 1(k), 8 and 9 of the Draft CRO.

(2) The “exceptions”, which it is submitted are needed to allow the Claimants' lawyers to make use of the confidential documents in order to (i) provide information and advice to their clients, so long as that advice does not enclose or convey the gist of the documents (paragraph 3(a)) and (ii) instruct experts (paragraph 3(b)).

(3) Minor points of difference, concerning paragraph 4 of the Draft CRO and paragraph 8 of Schedule A to the Draft CRO.

Other points of difference (paragraph 8, 9, 11–13 and paragraph 3 of Schedule A to the Draft CRO) are consequential on the issues above.

B.1 Relevant principles

The relevant principles were common ground between the parties. In this regard the question of whether a CRO should be granted on EEO terms was recently considered in Persons Identified in Schedule 1 v Standard Chartered plc [2025] EWHC 2136 (Ch) (“ Standard Chartered”). It is accepted by Glencore and Mr Glasenberg that an EEO confidentiality ring is exceptional, and that it is for them to justify why it is necessary in the particular case.

As Michael Green J noted in Standard Chartered, while the parties were agreed on the relevant legal principles, “it is as well to remind ourselves of them, in particular the exceptional nature of any form of CRO and especially an EEO CRO” (see at [117]). The principles were stated by Cockerill J in Cavallari v Mercedes-Benz Group AG & Ors [2024] EWHC 190 (KB) at [20]–[33] (“ Cavallari”) and cited in Standard Chartered at [118].

In summary:

(1) The starting point is the principle of open justice ( Cavallari at [22]).

(2) It follows that each party should generally have unrestricted access to the other's disclosure, protected by the collateral undertaking at CPR r. 31.22, which in the vast majority of cases will be sufficient ( Cavallari, at [24]).

(3) Confidentiality orders offering enhanced protection beyond the collateral undertaking are therefore “the exception rather than the rule” ( Cavallari, at [25]).

(4) A confidentiality ring involves a departure from the open justice principle which must be justified ( Cavallari, [at 26]). Accordingly:

(i) As Hamblen J made clear in Libyan Investment Authority v Société Générale SA [2015] EWHC 550 (QB) (“ LIA”) at [21]: “It is for the person seeking the imposition of a confidentiality club to justify any departure from the norm”.

(ii) Further, any restriction should “go no further than is necessary for the protection of the right in question” ( LIA, at [21]–[22]).

(iii) As Roth J explained in Infederation Limited v Google LLC [2020] EWHC 657 (Ch) at [42]:

“… the important points to emerge from the authorities are that: (i) such arrangements are exceptional; (ii) they must be limited to the narrowest extent possible; and (iii) they require careful scrutiny by the court to ensure that there is no resulting unfairness”.

(5) Accordingly, in Cavallari, Cockerill J held at [27]:

“With that scrutiny in mind, the burden lies on those seeking to displace the application of the open justice principle to produce clear and cogent evidence to explain why that departure is justified: the “real risk” of the right of inspection being used for a collateral purpose. It must be shown that “by nothing short of the exclusion of the public can justice be done” ( Scott v Scott [1913] AC 417, per Viscount Haldane at page 438, and per Earl Loreburn at page 446). The question is not one of convenience, but of necessity ( Al Rawi v Security Service [2011] UKSC 34…)”.

(6) In Cavallari, Cockerill J observed at [31] that the imposition of a confidentiality club and, if so, its terms, generally involves a balancing exercise, and referred to the “inherent desirability of including at least one duly appointed representative of each party within a confidentiality club”.

In Standard Chartered, Michael Green J therefore proceeded on the basis that “it is, therefore, for the Defendant to demonstrate why such exceptional orders in exceptional EEO terms should be made in this case” (at [119]), explaining that (at [120]):

“A CRO on EEO terms is wholly exceptional. It prevents the lawyers for that receiving party from discussing the documents and giving advice on them. If that party wished to rely on those documents for the purpose of amending their pleadings, there would be difficulties in taking instructions to such effect and providing a statement of truth, although Mr Handyside did suggest a way round that. Furthermore, the Claimants in this case have obligations towards their funders to keep...