Petr Aven v Orbis Business Intelligence Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Warby
Judgment Date08 Jul 2020
Neutral Citation[2020] EWHC 1812 (QB)
Docket NumberCase No: QB-2018-006349

[2020] EWHC 1812 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MEDIA AND COMMUNICATIONS LIST

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Warby

Case No: QB-2018-006349

Between:
(1) Petr Aven
(2) Mikhail Fridman
(3) German Khan
Claimants
and
Orbis Business Intelligence Limited
Defendant

Hugh Tomlinson QC and Kirsten Sjøvoll (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Claimants

Gavin Millar QC and Robin Hopkins (instructed by Reynolds Porter Chamberlain LLP) for the Defendant

Hearing dates: 16 – 19 March 2020

Approved Judgment

INDEX

Section

Paragraphs

Introduction

1–9

The Trial

10–11

The overall legal framework

12–17

Issues on liability

18–19

The Personal Data Issue

20–45

A narrative

46–62

The Legal Purposes Issue

The relevant provisions

63–73

The parties' contentions

74–78

Assessment

79–104

The National Security Issue

The law

105–112

The facts

113–118

Submissions

119–122

Assessment

123–129

The Fairness Issue

Conclusions

130

Reasons

131–144

The Accuracy Issue

The issues in dispute

145–149

Fact or opinion?

150–151

Inaccurate or misleading?

152–174

Accurate recording?

175–176

Reasonable steps?

177–187

Remedies

188–203

Summary of Conclusions

204

Mr Justice Warby

Introduction

1

This is a claim for the correction of the record and other remedies in relation to one component of the so-called “Steele Dossier”. That is the name that has been given to a set of memoranda produced by the defendant (“Orbis”) in 2016, on the instructions of a Washington DC consultancy. Orbis' instructions were to provide intelligence memoranda concerning any links which might exist between Russia, its President, Vladimir Putin, and Donald Trump.

2

The claimants are three businessmen of Russian or Ukrainian origin. They are all among the ultimate beneficial owners of the Alfa Group Consortium (“Alfa Group”), a Russian financial-investment conglomerate which includes Alfa Bank JSC (“Alfa Bank”). (These are Anglicisations of the Russian, Альфа. Although Alfa Bank itself favours this spelling, the name sometimes appears in English as “Alpha”).

3

Orbis is an English company, incorporated in 2009, which holds itself out as providing strategic insight, intelligence and investigative services to clients around the world. Orbis was established by two British former public officials, Christopher Steele and Christopher Burrows. Mr Steele is a director and principal of Orbis, and in that capacity he was the main if not sole author of the “Steele Dossier”.

4

On 10 January 2017, BuzzFeed News published an online article headed “These Reports Allege Trump Has Deep Ties to Russia” (“the Buzzfeed Article”). It described “A dossier, compiled by a person who has claimed to be a former British intelligence official” which contained,

“… explosive — but unverified — allegations that the Russian government has been “cultivating, supporting and assisting” President-elect Donald Trump for years and gained compromising information about him.”

5

The Buzzfeed Article went on:-

“Now BuzzFeed News is publishing the full document so that Americans can make up their own minds about allegations about the president-elect that have circulated at the highest levels of the US government.”

6

Sixteen memoranda were made accessible via a link in the article. This is how the claimants came to know about “Memorandum 112”, a document contained in the Dossier, which made reference to the claimants.

7

Memorandum 112 is dated 14 September 2016. Its full title is “COMPANY INTELLIGENCE REPORT 2016/112 — RUSSIA/US PRESIDENTIAL ELECTION: KREMLIN-ALPHA GROUP COOPERATION”. Its full text is as follows: -

Summary

— Top level Russian official confirms current closeness of Alpha Group-PUTIN relationship. Significant favours continue to be done in both directions and FRIDMAN and AVEN still giving informal advice to PUTIN, especially on the US

— Key intermediary in PUTIN-Alpha relationship identified as Oleg GOVORUN, currently Head of a Presidential Administration department but throughout the 1990s, the Alpha executive who delivered illicit cash directly to PUTIN

— PUTIN personally unbothered about Alpha's current lack of investment in Russia but under pressure from colleagues over this and able to exploit it as lever over Alpha interlocutors

Detail

1. Speaking to a trusted compatriot in mid-September 2016, a top level Russian government official commented on the history and current state of relations between President PUTIN and the Alpha Group of businesses led by oligarchs Mikhail FRIDMAN, Petr AVEN and German KHAN. The Russian government figure reported that although they had had their ups and downs, the leading figures in Alpha currently were on very good terms with PUTIN. Significant favours continued to be done in both directions, primarily political ones for PUTIN and business/legal ones for Alpha. Also, FRIDMAN and AVEN continued to give informal advice to PUTIN on foreign policy, and especially about the US where he distrusted advice being given to him by officials.

2. Although FRIDMAN recently had met directly with PUTIN in Russia, much of the dialogue and business between them was mediated through a senior Presidential Administration official, Oleg GOVORUN, who currently headed the department therein responsible for Social Co-operation With the CIS. GOVORUN was trusted by PUTIN and recently had accompanied him to Uzbekistan to pay respects at the tomb of former president KARIMOV. However according to the top level Russian government official, during the 1990s GOVORUN had been Head of Government Relations at Alpha Group and in reality, the “driver” and “bag carrier” used by FRIDMAN and AVEN to deliver large amounts of illicit cash to the Russian president, at that time deputy Mayor of St Petersburg. Given that and the continuing sensitivity of the PUTIN-Alpha relationship, and need for plausible deniability, much of the contact between them was now indirect and entrusted to the relatively low profile GOVORUN.

3. The top level Russian government official described the PUTIN-Alpha relationship as both carrot and stick. Alpha held ‘kompromat’ on PUTIN and his corrupt business activities from the 1990s whilst although not personally overly bothered by Alpha's failure to reinvest the proceeds of its TNK oil company sale into the Russian economy since, the Russian president was able to use pressure on this count from senior Kremlin colleagues as a lever on FRIDMAN and AVEN to make them do his political bidding.

8

On 4 May 2018, the claimants began this action seeking remedies under the Data Protection Act 1998 (“the DPA”). The claimants' case is that Orbis has acted in breach of its duties under s 4(4) of the DPA, in that Memorandum 112 contains personal data relating to the claimants, some of it sensitive personal data, which are inaccurate, contrary to the Fourth Data Protection Principle (“the Fourth Principle”), and which have been processed by Orbis in ways that are unfair, unlawful or otherwise non-compliant with the First Data Protection Principle (“the First Principle”). The claim form seeks four remedies: a declaration that the personal data are inaccurate; an order for blocking, erasure, destruction and rectification of the personal data; an order that the defendant inform those to whom it disclosed Memorandum 112 of the inaccuracies; and compensation.

9

Orbis denies liability. It has not disputed the applicability of the DPA to the activities that are the subject of the claim. It does not dispute that it processed information relating to the first and second claimants. But its case is that not all of the information in Memorandum 112 is personal data, and none of it relates to the third claimant; the personal data do not include any that are sensitive personal data; the data are not inaccurate; and there is no breach of the Fourth Principle. Orbis further maintains that its processing of the data complied with the First Principle. Further and alternatively, Orbis relies on provisions that exempt processing where the processing is necessary for the purpose of prospective legal proceedings, or obtaining legal advice, or establishing, exercising or defending legal rights ( DPA s 35(2) (“the Legal Purposes Exemption”)), and where exemption that is required to safeguard national security ( DPA s 28(1) (“the National Security Exemption”)). If liability is established, Orbis denies that the claimants are entitled to compensation or any other remedy, disputing that any of them have suffered any damage or distress.

The trial

10

I heard evidence and argument over four days in March 2020. This was the week before the Prime Minister's announcement on 23 March 2020 of what has become known as “lockdown” and the enactment, on 25 March 2020, of the Coronavirus Act 2020 and, on 26 March 2020, of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350), known to some as the “stay-at-home” regulations. The trial documents were all provided in electronic form, but the hearing was held in an appropriately large Court, with all the claimants and Mr Steele present for most of the time.

11

Each of the claimants made a witness statement, gave oral evidence and was cross-examined by Mr Millar QC, on behalf of Orbis. The claimants also relied on a written expert report from Eleonora Sergeeva, a partner in the Russian law firm of Padva and Partners, who specialises in criminal law relating to business offences, and anti-corruption regulations. The only witness for Orbis was Mr Steele, who made three witness statements, gave oral evidence and was cross-examined by Mr Tomlinson QC.

The overall...

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6 cases
  • Aleksej Gubarev v Orbis Business Intelligence Ltd
    • United Kingdom
    • Queen's Bench Division
    • 30 October 2020
    ...Aven case”), where the claims were for inaccuracy, under data protection law. I gave judgment on those claims earlier this year: [2020] EWHC 1812 (QB). The case I am dealing with now is a claim for 2 The first claimant (“Mr Gubarev”) is a businessman and entrepreneur, born and brought up i......
  • Alaedeen Sicri v Associated Newspapers Ltd
    • United Kingdom
    • Queen's Bench Division
    • 21 December 2020
    ...which compensation has been awarded for reputational harm in a tort other than defamation. In Aven v Orbis Business Intelligence Ltd [2020] EWHC 1812 (QB), it was conceded that such an award could be made under DPA s 13, and I made one, in respect of processing of information about two cla......
  • Tony Greenstein v Campaign Against Antisemitism
    • United Kingdom
    • Queen's Bench Division
    • 6 November 2020
    ...he is entitled to recover damages for the reputational harm and damage he has suffered (see Aven v Orbis Business Intelligence Ltd [2020] EWHC 1812 (QB), Warby J at [197]), the claim under the 1998 Act is not an abuse of process, and should be allowed to proceed to trial. Further, the clai......
  • HRH the Duchess of Sussex v Associated Newspapers Ltd
    • United Kingdom
    • Chancery Division
    • 5 March 2021
    ...that allow the court to grant similar relief, where appropriate: see the discussion in Aven and ors v Orbis Business Intelligence Ltd [2020] EWHC 1812 (QB) [188–190]. It would seem anomalous if claims for misuse of private information should be the exception to the 61 The different nature ......
  • Request a trial to view additional results

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