The Republic of Mozambique (acting through its Attorney General) v Credit Suisse International and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Robin Knowles CBE |
| Judgment Date | 03 March 2023 |
| Neutral Citation | [2023] EWHC 514 (Comm) |
| Docket Number | Case No: CL-2019-000127 |
| Court | Queen's Bench Division (Commercial Court) |
[2023] EWHC 514 (Comm)
Mr Justice Robin Knowles CBE
Case No: CL-2019-000127
IN THE HIGH COURT OF JUSTICE
THE BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Jonathan Adkin KC, Jeremy Brier KC, Edward Gilmore and Akash Sonesha (instructed by Peters & Peters Solicitors LLP) for the Republic
Andrew Hunter KC, Sharif Shivji KC, Andrew Scott KC, Tom Gentleman and Emma Horner (instructed by Slaughter and May) for Credit Suisse
Timothy Howe KC and Natasha Bennett (instructed by Rosenblatt) for the VTB Capital and VTB Bank
Richard Hill KC and Gregory Denton-Cox (instructed by Macfarlanes LLP) for the VTB Bank (Europe) SE
Peter Knox KC, Ian Smith and Rupert Butler (instructed by Leverets Group) for the 3rd, 4th and 5th Defendants (the CS Deal Team)
Duncan Matthews KC, Ben Woolgar and Matthew Chan (instructed by Signature Litigation LLP) for the 6th to 10th and 12th Defendant (Privinvest and Mr Safa)
Stephen Midwinter KC and Tom Wood (instructed by Enyo Law LLP) for the Banco Comercial Portugues (BCP), Banco Internacional de Mocambique (BIM), United Bank for Africa (UBA)
James MacDonald KC and Timothy Lau (instructed by Pallas Partners LLP) for Beauregarde Holdings LLP, Orobica Holdings LLC and VR Global Partners LP
Sophia Hurst and Duncan Bagshaw (instructed by Howard Kennedy LLP) for Ms Isaltina Lucas
Hearing dates: 28 th February; 1 st, 2 nd March 2023
JUDGMENT 7
Friday, 3 March 2023
( 10:49 am)
Judgment by Mr Justice Robin Knowles CBE
Introduction
This is my judgment on applications that have centred on the Republic's disclosure of documents. The applications seek a range of orders. The application by Credit Suisse includes a request for “unless” orders, with the sanction of striking out where there is a failure to comply. It also includes requests for declarations that there have been defaults.
The parties who have made applications criticise the Republic's disclosure generally. However, and sensibly, there has been focus at this hearing on what the parties contend to be the most important and significant areas.
The trial
The trial of this multi-party litigation will commence in October with 12 weeks allowed.
The trial date is variously in the interests of all parties, as many recognise for differing reasons. Mr Lau, for the Pallas Parties, puts any adjournment of the trial in terms of unfairness; and I understand that characterisation. That the trial will commence in October and not later is also in the interests of the overriding objective, including the court's consideration of the position of other litigants in other cases.
The litigation is of enormous importance to all parties. It is complex, high value litigation, with issues that ask not just what happened and why but who knew what when and also where there was honesty and where there was not. The exercise of all parties giving disclosure of relevant documents was always going to be vast. The deadline for disclosure has now passed after earlier extensions. Witness statements and expert reports are under preparation. Each team of solicitors and counsel is working hard, none more than the Republic's.
Disclosure
The deadline for disclosure has been an important discipline, but the complexity of the case and some of its international aspects has meant that disclosure has had to be taken in stages.
This has involved addressing some challenges as they have arisen and where they were not expected. It is one of the aspects of the case that has required more time to case management than in many cases. I wish to acknowledge the professionalism of all firms of solicitors who have been involved.
More disclosure may yet be required from any party; and the fact that the duties to give disclosure are continuing duties, continuing up to and through trial, is of particular relevance in this case.
The Court's concern, front and centre, is that any trial is a fair trial. This is what the parties and the public are entitled to; and it is what the rule of law requires.
The Court is pleased to be trusted with the resolution of important international disputes such as the present. These disputes can involve States, companies and individuals. Trust in the Court is earned and, in every case, the Court must continue to earn it. It is a trust based on the delivery of a fair, independent hearing and decision. And one of the things that the Court insists on to achieve a fair decision is disclosure of relevant documents.
Disclosure by the Republic
The Republic of Mozambique, as a State, has a structure of Ministries, Offices and Councils. These have been termed State entities for convenience. The issues in this litigation touch or are alleged to touch a large number of those State entities. Individual officials and office holders were involved at material times and some are the subject of allegations. The current President, President Nyusi, is also a party to this litigation personally. Some of the individuals, including the current President held different relevant positions at different times.
Among the State entities within the Republic are these five: the Office of the President, the Office of the Prime Minister, SISE (which deals with State security), the Council of State, and the Ministry of the Interior.
Credit Suisse accepts that the Ministry of the Interior is not as central to the issues in the litigation as others. By contrast, SISE is alleged to have a central role. Ms Sophia Hurst illustrated, for Ms Lucas (a former senior Treasury official at the Republic and a party to the litigation), that there is material to show connection of relevant payments with SISE. Mr do Rosario and Mr Leao (the latter a former Director General of SISE) are names that feature prominently in the litigation. The litigation includes allegations of bribery and five officials or office holders that are alleged to have been bribed are from SISE or from the Office of the President. In addition to the current President, the actions and knowledge of the former President are relevant as are those of holders of the office of Prime Minister.
The five State entities that I have mentioned were among those expected to hold relevant documents. The Republic itself said as much in its disclosure review document at section 2. So too the Navy and PGR (the Republic's internal legal function) could be expected to hold relevant documents. All are required to archive documents under Mozambican law and, in that process, to decide a classification of documents from a list of four levels of classification described in Republic of Mozambique v Credit Suisse and Others (Judgment 6) [2023] EWHC 91 (Comm).
Most of the searches for relevant documents required of the Republic were searches at Model D under the rules governing disclosure.
Peters & Peters and PGR
The solicitors to the Republic are Peters & Peters. They, as with other solicitors for other parties, have been working as best they can. There have been times when I have wondered if the leadership at the Republic fully realises quite how valuable the experience and expertise of Peters & Peters is and the importance of heeding that experience and expertise.
A word about PGR. As Mr Tim Howe KC pointed out, PGR, unlike Peters & Peters, are not solicitors owing obligations to this Court as its officers. It may owe obligations to the President in his official capacity for the Republic. However, as a party to this litigation the Republic does owe duties to this Court, in particular in relation to disclosure, and PGR has a professional function within this. It has also been involved in aspects of the history of the matter, including relevant asset confiscation.
Results and current position
I have been provided with extensive information, in a number of witness statements, but, in particular, a witness statement of Mr Keith Oliver of Peters & Peters, his nineteenth. Mr Jonathan Adkin KC for the Republic has added to that information in the course of this hearing on instructions and that has been helpful.
The exercise to date has clearly been one of scale and challenge. I take close account of the differences there will be between the systems available to the Republic for the purposes of public administration, including information retention and record keeping and retrieval, and those available in other States enjoying the good fortune of greater resources or more developed arrangements.
Peters & Peters has been permitted to participate in or undertake searches at some State entities for relevant documents; and this has led to disclosure of relevant documents. Important searches have been undertaken, for example at the Ministry of Finance and Economy.
It is, as this Court has found (see Judgment 6), lawful under Mozambican law to designate individual lawyers at Peters & Peters “need to know”, so as to allow their participation in searches for relevant documents at State entities. However the Republic refuses to exercise that lawful power at any of the five State entities that I have particularly identified. That refusal has been in relation to any level or grade of classification from the four levels or grades available (these range from “state secret” to “restricted”). Those with relevant authority to designate “need to know” at these entities include (as the case may be) the President or the Prime Minister.
Whilst it is also lawful under Mozambican law to designate PGR “need to know”, and PGR has been so designated at the Ministry of the Interior and the Office of the Prime...
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The Republic of Mozambique v Credit Suisse International and Others
...ordered to give extended disclosure on Model D across a range of issues set out in the List of Issues for Disclosure. In Judgment 7 [2023] EWHC 514 (Comm) I addressed the relevance of disclosure from these State entities, describing them at [28] as of “real relevance across the 11 I said i......
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The Republic of Mozambique (acting through its Attorney General) v Credit Suisse International and Others
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