Petr Aven v Orbis Business Intelligence Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 08 July 2020 |
| Neutral Citation | [2020] EWHC 1812 (QB) |
| Date | 08 July 2020 |
| Docket Number | Case No: QB-2018-006349 |
| Court | Queen's Bench Division |
[2020] EWHC 1812 (QB)
Mr Justice Warby
Case No: QB-2018-006349
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
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 |
Introduction
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.
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”).
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”.
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.”
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.”
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.
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.
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.
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
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.
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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