The Republic of Mozambique v Credit Suisse International and Others
| Jurisdiction | England & Wales |
| Judge | Robin Knowles J |
| Judgment Date | 30 November 2022 |
| Neutral Citation | [2022] EWHC 3054 (Comm) |
| Docket Number | Case No: CL-2019-000127 and others |
| Court | Queen's Bench Division (Commercial Court) |
[2022] EWHC 3054 (Comm)
THE HON Mr Justice Robin Knowles CBE
Case No: CL-2019-000127 and others
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Adkin QC, Charlotte Tan, Ryan Ferro, Akash Sonecha and Edward Gilmore (instructed by Peters & Peters Solicitors LLP) for the Republic of Mozambique
Andrew Hunter QC, Sharif Shivji QC, Andrew Scott and Tom Gentleman (instructed by Slaughter and May) for Credit Suisse
Rupert Butler and Natasha Jackson (instructed by Leverets Group) for the CS Deal Team
Duncan Matthews QC (instructed by Signature Litigation LLP) for the Privinvest Defendants and Mr Iskandar Safa
Duncan Bagshaw and Luke Barden Delacroix (instructed by Howard Kennedy LLP) for Ms Maria Isaltina Lucas
David Railton QC, Timothy Howe QC, Adam Sher and Ian Bergson (instructed by Freshfields Bruckhaus Deringer LLP) for VTB Capital Plc and VTB Bank (Europe) SE
Laura Newton (instructed by Enyo Law LLP) for BCP, UBA and BIM
Timothy Lau (instructed by Boies Schiller Flexner) for Beauregarde Holdings LLP and Orobica Holdings LLP
Hearing dates: 3 March 2022
Judgment 4
Introduction
At times material to the issues in this litigation, a number of individuals with a position of employment or responsibility in the government or administration of the claimant state (“the Republic”) used personal email accounts and devices routinely to receive and send electronic communications for the Republic.
The Republic's position, as summarised by Mr Jonathan Adkin QC, is that the system for correspondence within the Republic's organs involves written, hard copy, documents recorded in log books. The position of Credit Suisse as one of the Defendant groups, as summarised by Mr Andrew Hunter QC, is that the Republic's arrangements include a large proportion of its electronic communications through its officials, being conducted using devices or email accounts in personal names.
The Disclosure Review Document (“the DRD”) in this litigation indicates where some individuals have agreed to give some access to the Republic to electronic communications. Indeed, part of the approach commended in Mr Adkin QC's argument was that the process of developing this area of the DRD should continue before the Court considers whether further steps should be taken.
For its part, Credit Suisse has listed 33 names of individuals said to have a position of employment or responsibility in the government or administration of the Republic. It seeks several orders. First, an order that the Republic identify each individual from that list from whom the Republic has already sought consent to search and give disclosure in this litigation of relevant documents on that individual's personal email accounts or devices. Credit Suisse then seeks a second order, that the Republic identify the response of each such individual to the request where made.
The litigation is of major scale and involves very serious allegations on all sides. As CPR PD51U para 2.1 records, “[d]isclosure is important in achieving the fair resolution of civil proceedings”. Disclosure exists as a feature of litigation because “there is a public interest in ensuring that all relevant evidence is provided to the court” in litigation: Tchenguiz v SFO [2014] EWCA 1409 at [56] per Jackson LJ, with whom Sharp and Vos LJJ (as they then were) agreed.
In the present litigation, on all sides, a number of potential sources of disclosure have met with challenges which are still being worked on. In the result, each source of disclosure that is available has particular value.
The list of names prepared by Credit Suisse comprises present and past employees or holders of office in the government or administration of the Republic. It includes very senior figures.
Some of those listed are parties to the litigation in their own right. Mr Adkin QC said that some were employees of the Bank of Mozambique rather than the Republic, and some were dead. Others, he said, were being prosecuted, and some were in prison. Mr Adkin QC urged that these points undermined the value of the list.
In my view some of these points may reduce its value but others do not. I add that there is nothing disproportionate about the length of the list in the context of this litigation. Overall, the list may not be perfect but it is designed to tackle the use of personal email accounts and devices routinely employed to receive and send electronic communications for the Republic.
If the two orders presently sought are made, Credit Suisse has already indicated that it would then go on to seek a further (third) order that the Republic should request consent (to secure access to relevant documents on that individual's personal email accounts or devices) from individuals from whom it has not previously sought consent. Of course, and materially, Credit Suisse might in addition seek orders against the Republic where consent has been sought from and given by the individual. And it will be able to consider its position where consent has been sought and refused or not given. If the two orders presently sought are made the Court and the parties would be able to see first how many, and which, individuals would be involved in any further order, if made, and how many, and which, should be involved.
But the Republic's position is that there is no jurisdiction to make either of the two orders sought by Credit Suisse. The Republic argue that this is the effect of a recent and reported decision of Mr Peter Macdonald-Eggers QC, sitting as a Deputy Judge of the High Court, in Various Airfinance Leasing Companies v Saudi Arabian Airlines [2021] EWHC 2904 (Comm); [2022] 1 WLR 1027.
It is important to be clear that the orders sought are sought against a party to the litigation, although they concern what that party should do towards persons who are not parties to the litigation. The orders are not sought against those other persons, and do not concern the areas of the Court's jurisdiction that allow, in certain circumstances, orders to be made directly against persons who are not parties to the litigation.
“Control”
The litigation is litigation to which Practice Direction 51U to the Civil Procedure Rules applies. The definition of “control” in Appendix 1 to Practice Direction 51U is in these terms:
“Control” in the context of disclosure includes documents: (a) which are or were in a party's physical possession; (b) in respect of which a party has or has had a right to possession; or (c) in respect of which a party has or has had a right to inspect or take copies.”
“[T]he concept of “control”, as defined, fixes the universe of documents from which, by one or other or a combination of means, a party's Extended Disclosure is to be generated”: Andrew Baker J in Pipia v BGEO Group Ltd [2020] EWHC 402 (Comm); [2020] 1 WLR 2582 at [13].
In Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 the House of Lords considered the meaning of the words “possession, custody or power” which determined the scope of discovery under Order 24 of the then Rules of the Supreme Court (the predecessor to disclosure under the Civil Procedure Rules). At pages 635–636, Lord Diplock said:
“… in the context of the phrase “possession, custody or power” the expression “power” must, in my view, mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; but in the absence of a presently enforceable right there is, in my view, nothing in Order 24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future …”.
Although concerned with the then Rules of the Supreme Court, the passage informs the definition of “control” in Practice Direction 51U to the Civil Procedure Rules. It makes it clear that the fact that for physical reasons it may not be possible for the person entitled to a document to obtain immediate inspection of it does not mean that there is no right to possession (or inspection) of the document. What is required is that the right to possession (or inspection) is enforceable without the need to obtain the consent of anyone else.
“Control”: the relationship between a party and a non-party
In North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11 at [40], Toulson LJ (with whom Pill and Arden LJJ agreed) said this in relation to CPR 31.8, in a passage equally applicable to PD 51U:
“In determining whether documents in the physical possession of a third party are in a litigant's control …, the court must have regard to the true nature of the relationship between the third party and the litigant. The concept of “right to possession” … covers a situation where a third party is in possession of documents as agent for a litigant. … But even if there were on a strict legal view no “right to possession”, for example, because the parties to the arrangement caused the documents to be held in a jurisdiction whose laws would preclude the physical possessor from handing them over to the party at whose behest he was truly acting, it would be open to the English court in such circumstances to find that as a matter of fact the documents were nevertheless within the control of that party …”.
The passage shows that in the context of disclosure a right to possession is not confined to the situation where the right exists on a...
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The Republic of Mozambique v Credit Suisse International and Others
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