Stokoe Partnership Solicitors v Dechert LLP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 21 December 2023 |
| Neutral Citation | [2023] EWHC 3273 (KB) |
| Year | 2023 |
| Court | King's Bench Division |
| Docket Number | Claim No. QB-2020-002492 |
and
[2023] EWHC 3273 (KB)
THE HONOURABLE Mr Justice Murray
Claim No. QB-2020-002492
Claim No. QB-2020-000322
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sara Mansoori KC and Guy Olliff-Cooper (instructed by Stokoe Partnership Solicitors) for the Claimants
Ben Gallop (instructed by RPC) for the Third Party Respondents
The Defendants did not attend and were not represented.
Hearing date: 8 December 2023
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down are deemed to be 21 December 2023 at 10:30 am.
I have before me two applications dated 21 December 2022, each for a non-party disclosure order against the third party respondents, Mr Franz Wild, the Bureau of Investigative Journalism, and Times Media Limited (formerly known as Times Newspapers Limited). Times Media Limited is the owner of the Sunday Times.
One application is made by Stokoe Partnership Solicitors (“SPS”) in the context of its claim against Dechert LLP and Mr Neil Gerrard (Claim No. QB-2020-002492) (“the SPS Proceedings”). The other application is made by Mr Karam Al Sadeq in the context of his claim against Dechert LLP, Mr Gerrard, Mr David Hughes, and Ms Caroline Black (Claim No. QB-2020-000322) (“the Al Sadeq Proceedings”). These sets of proceedings are being case-managed together. The applications are in identical terms and seek a single order in favour of each applicant. For convenience of reference, therefore, I will refer to them collectively in this judgment as “the December Application”.
Terms of the order sought under the December Application
The applicants seek an order under CPR r 31.17 that the respondents disclose to, and permit the applicants to inspect, documents within their possession, custody, or power that led the first respondent to conclude that:
i) a private investigator hired by Dechert LLP to assist with its investigation, undertaken for Ras Al Khaimah (“RAK”), of Dr Khater Massaad instructed Mr Aditya Jain to hack three of Dr Massaad's email accounts in April 2015;
ii) Mr Jain successfully hacked all three email accounts;
iii) in April 2016 the same private investigator commissioned Mr Jain “to hack Mr Adrian Flook” [sic], a public relations adviser to Dr Massaad; and
iv) Bell Pottinger, a public relations firm advising RAK, subsequently came into the possession of a confidential business proposal that Mr Flook had sent to Dr Massaad by email.
The reference in the draft order to the first respondent being “led to conclude” refers to the contents of an email sent on 6 October 2022 by the first respondent to Dr Khater Massaad, another client of SPS, in which the first respondent sets out a number of propositions, including propositions that are summarised by (i) to (iv) at [3] above. In that email, the first respondent invited Dr Massaad to comment on those and certain other propositions, in connection with a story that the first respondent and colleagues were preparing. The background to and context for this is discussed further below.
The applicants also seek an additional or alternative order that any documents relating to any of the above propositions that are contained in a specified .zip file should be disclosed and offered for inspection to the applicants. The specified .zip file is one referred to in an article dated 26 October 2022 headed “Legal battle draws hackers-for-hire and private investigators out of the woodwork”, which was posted on the Intelligence Online website (intelligenceonline.com) (“the Intelligence Online Article”).
The other issue that I am asked to decide is which party should bear the costs of applications made by SPS and Mr Al Sadeq on 14 October 2022, under which the applicants applied for an order under CPR r 31.17 that the respondents disclose to, and permit the applicants to inspect, documents within their possession, custody, or power that led the first respondent to conclude that “six days after Stokoe Partnership filed its lawsuit, an Indian hacker was instructed to hack British barrister and High Court judge Philip Marshall KC who was poised to become a legal adviser to your lawyers Stokoe Partnership in the case”. The source of the quoted language, which appears in quotation marks in the draft order submitted by the applicants, is discussed further below.
As in the case of the December Application, the applications of 14 October 2022 are made in identical terms, one in the SPS Proceedings and one in the Al Sadeq Proceedings, and they seek a single order in favour of the applicants. For convenience of reference, therefore, I will refer to them collectively in this judgment as “the October Application”.
After correspondence, as further described below, the October Application was withdrawn by the applicants, who submit that, for reasons I will summarise in due course, the respondents behaved unreasonably in responding to the October Application and therefore, under CPR r 46.1(3), the court should decline to make a costs order in favour of the respondents.
Evidence
The Application is supported by the 12 th/16 th witness statement dated 21 December 2022 of Mr Haralambos Tsiattalou, the Founding Partner of the first applicant, which firm represents the second applicant in the Al Sadeq Proceedings. In response to the Application and Mr Tsiattalou's evidence, the respondents have provided the 2 nd witness statement dated 6 July 2023 of Mr George Arbuthnott, Deputy Insight Editor at the Sunday Times. In response to Mr Arbuthnott's witness statement, the applicants have provided the 15 th/20 th witness statement dated 20 July 2023 of Mr Tsiattalou. Relevant documents are exhibited to each of these witness statements.
Background to the underlying proceedings
I briefly summarise the background to the underlying proceedings, drawing on the succinct summary in the applicants' skeleton argument. These proceedings arise out of a dispute between the ruler of RAK, Sheikh Saud bin Saqr al Qasimi (the “Ruler”), and his former confidant, Dr Massaad. The Ruler and Dr Massaad were founding shareholders of RAK Ceramics, a global ceramics brand. In 2005, the Ruler appointed Dr Massaad as the chief executive officer (CEO) of the newly formed Ras Al Khaimah Investment Authority (“RAKIA”). In 2008, Mr Al Sadeq was appointed as a legal adviser to RAKIA. In 2010, he was promoted to Group Legal Director. In 2011, Dr Massaad made Mr Al Sadeq his Deputy CEO.
In 2012, Dr Massaad's relationship with the Ruler began to sour. According to Mr Al Sadeq, this was due to the influence of the Ruler's son, Sheikh Mohammed. In June 2012, Dr Massaad resigned his position as CEO of RAKIA. When it became apparent that the role of CEO, which Mr Al Sadeq had hoped to inherit, was going to be significantly reduced in scope, Mr Al Sadeq also resigned.
Following his departure from RAKIA, Dr Massaad founded a new ceramics business. According to Mr Al Sadeq, these actions caused the Ruler to turn against Dr Massaad, as he viewed the new business as a competitor to RAK Ceramics. The Ruler's animus towards Dr Massaad and the new ceramics business was strengthened by the fact that one of the investors in it was the Ruler's brother, Sheikh Faisal, whom the Ruler viewed as a political rival.
In 2013, the Ruler commenced an investigation into Dr Massaad and those perceived to be associated with him, including Mr Al Sadeq and a US businessman named Farhad Azima (the “Investigation”). The Ruler instructed Dechert LLP to advise and assist him in relation to the Investigation. Mr Gerrard was then a partner at Dechert LLP and was the lead partner in relation to the Investigation.
The applicants' position is that, as part of the Investigation, Dechert LLP and Mr Gerrard instructed various private investigators, namely, Mr Stuart Page, Mr Amit Forlit, and Mr Nicholas Del Rosso, to obtain information about Dr Massaad, Mr Al Sadeq, and other people and entities associated with them, such as their legal advisers, which included SPS and counsel instructed by SPS. The applicants allege that the private investigators used unlawful hacking as one means of obtaining information and that this was done either on the instruction, or at any rate with the approval, of Dechert LLP and Mr Gerrard (the “Hacking Campaign”).
It is the applicants' case that on 4 September 2014 Mr Al Sadeq was kidnapped from his home in Dubai by RAK State Security and taken to RAK. There he was kept in solitary confinement for around 560 days, first at the General Headquarters of State Security in RAK and subsequently in a camp run by the Ruler's private militia. All of this took place without due process. Mr Al Sadeq was denied access to legal representation. During this time, Mr Al Sadeq was kept in unsanitary and inhumane conditions whilst being interrogated by Mr Gerrard and other agents of the Ruler in an effort to force him to provide false confessions implicating Dr Massaad. Mr Al Sadeq was ultimately convicted in what he maintains were unfair and politically motivated criminal proceedings. His position is that he was wrongfully convicted and is being unlawfully held in prison in...
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