Abdourahman Mohamed Mahmoud Boreh (Applicant/First Defendant) v Republic of Djibouti and Others (Respondents/Claimants Additional Respondent)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Flaux,Mr Justice Flaux |
| Judgment Date | 23 March 2015 |
| Neutral Citation | [2015] EWHC 769 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2012 FOLIO 1333 |
| Date | 23 March 2015 |
[2015] EWHC 769 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Flaux
Case No: 2012 FOLIO 1333
Dominic Kendrick QC, James WillanandKeir Howie (instructed by Byrne & Partners LLP) for the Applicant
Lord Falconer of Thoroton, Deepak Nambisan, Jennifer HaywoodandDaniel Edmonds (instructed by Gibson, Dunn & Crutcher LLP) for the First to Third Respondents
Timothy Dutton QC (on 2–5 March 2015) andPhilip Ahlquist (on 9 March 2015) for Gibson, Dunn & Crutcher LLP
Mark Simpson QC, Nico LeslieandJames Hart for Peter Gray
Hearing dates: 2–5 March and 9 March 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
By Application Notice dated 9 January 2015 the applicant, who is the defendant to the proceedings and to whom I will refer as "Mr Boreh", applies to set aside the freezing injunction and proprietary injunction and other relief which I granted in favour of the respondents who are the claimants in the proceedings (to whom I will refer compendiously as "Djibouti" save where the context requires otherwise) on 11 September 2013. The basis for the application is that Djibouti and its legal representatives deliberately and/or recklessly misled the court in the application for the Freezing Order and subsequently. Although the Application Notice is framed in those wide terms, at the hearing of this application, Mr Dominic Kendrick QC who appears for Mr Boreh has made it very clear that, so far as the legal representatives are concerned, the allegation of deliberate misleading of the court is made only against Mr Peter Gray, the partner at Djibouti's solicitors, Gibson, Dunn & Crutcher LLP ("Gibson Dunn") who had the conduct of the case on their behalf.
In particular, Mr Kendrick QC made it clear that, whilst his client's rights were reserved, no allegation of professional misconduct or impropriety was being made against any other solicitor or lawyer at Gibson Dunn or against leading or junior counsel who acted for Djibouti at the hearing of the application for the freezing injunction and subsequently, Mr Khawar Qureshi QC and Miss Jennifer Haywood.
By a judgment dated 13 November 2014, I have already determined that I was misled at the time of the application for the freezing injunction. The issues for determination at the hearing which took place over five days on 2 to 5 March and 9 March 2015 were thus (i) whether Mr Gray had deliberately and/or recklessly misled the court and (ii) whether the freezing injunction, proprietary injunction and other relief granted on 11 September 2013 should be set aside or some other order made by the court.
Given the seriousness of the allegations made against Mr Gray and the implications for him of a finding that he had deliberately misled the court, the hearing was conducted on a fully robed basis. In that context, it is important at the outset of this judgment to set out the legal test which the court has to apply in determining whether a solicitor has deliberately misled the court and thus been guilty not just of professional misconduct but of dishonesty. As Mr Timothy Dutton QC submitted in his helpful and measured oral submissions on behalf of Gibson Dunn, the test has been clarified in the context of hearings before the Solicitors Disciplinary Tribunal where there are allegations of dishonesty by the Divisional Court (Richards LJ and Aikens J) in Bryant v Law Society [2007] EWHC 3043 (Admin); [2009] 1 WLR 163. Having reviewed the earlier authorities, including the decision of the Court of Appeal in Law Society v Bultitude [2004] EWCA Civ 1853, the Divisional Court said at [153] and [155]:
"153. In our judgment, the decision of the Court of Appeal in Bultitude stands as binding authority that the test to be applied in the context of solicitors' disciplinary proceedings is the Twinsectra test as it was widely understood before Barlow Clowes, that is a test that includes the separate subjective element. The fact that the Privy Council in Barlow Clowes has subsequently placed a different interpretation on Twinsectra for the purposes of the accessory liability principle does not alter the substance of the test accepted in Bultitude and does not call for any departure from that test.
….
155. Accordingly, the tribunal in the present case should, in our judgment, have asked itself two questions when deciding the issue of dishonesty: first, whether Mr Bryant acted dishonestly by the ordinary standards of reasonable and honest people; and, secondly, whether he was aware that by those standards he was acting dishonestly."
It seems to me that in a case involving allegations that Mr Gray deliberately misled the court, that is an allegation of dishonesty and that, although the allegation is being made and determined in civil proceedings, given the gravity of the allegation, the appropriate test for the court to apply is the two stage test set out by the Divisional Court and Mr Kendrick QC has not sought to argue otherwise.
Two other aspects of the approach which should be adopted by the court in cases of this seriousness were highlighted by Mr Dutton QC in his submissions. First, that in considering whether Mr Gray deliberately misled the court, it is important to judge his conduct by reference to the circumstances as they were at the time of the conduct in question and not with the application of hindsight. As Laddie J said in Re Living Images Limited [1996] BCC 112 at 116H:
"I should add that the Court should be alert to the dangers of hindsight……
The court must be careful not to fall into the trap of being too wise after the event."
Second, since the proceedings are civil proceedings, the standard of proof remains the civil standard of the balance of probabilities, but where an allegation is made of deliberate misconduct or dishonesty, the court will only conclude that the allegation is made out if there is cogent evidence to that effect: see the well-known passage in the speech of Lord Nicholls of Birkenhead in In re H (Minors) [1996] AC 563 at 586:
"Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception. By family proceedings I mean proceedings so described in the Act of 1989, sections 105 and 8(3). Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow's Will Trusts [1964] 1 W.L.R. 451, 455: 'The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.'"
Mr Peter Gray is now 39 years old. He was called to the Bar in 1999 and requalified as a solicitor in 2002. He has worked in Dubai for a number of years and was a partner in Dewey & LeBoeuf before joining Gibson Dunn as a partner in 2012. He remained based in Dubai and had the conduct of this litigation on behalf of Djibouti.
He has sworn no fewer than seven affidavits in this matter and gave evidence before me, being cross-examined by Mr Kendrick QC for the best part of two days and then recalled for further cross-examination on the fourth day of the hearing, when further disclosure was made by Djibouti and Gibson Dunn. In his evidence at the hearing he accepted, as he had done in his sixth affidavit, that he had been guilty of serious errors of judgment, but he maintained throughout his evidence that he had not intended to mislead the...
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