The Republic of Mozambique v Credit Suisse International and Others
| Jurisdiction | England & Wales |
| Judge | Robin Knowles J |
| Judgment Date | 20 January 2023 |
| Neutral Citation | [2023] EWHC 91 (Comm) |
| Docket Number | Case No: CL-2019-000127 and others |
| Court | King's Bench Division (Commercial Court) |
[2023] EWHC 91 (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
KING'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Adkin KC and Jeremy Brier KC (instructed by Peters & Peters Solicitors LLP) for the Republic of Mozambique
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 VTBC
Philip Riches KC (instructed by Signature Litigation LLP) for the Privinvest Defendants
Hearing dates: 19–20 December 2022
Judgment 6
Disclosure in litigation
Disclosure is the procedure by which parties to litigation before the English Court identify and make available to each other the documents that they have that are relevant to the issues in the litigation. The procedure is “important in achieving the fair resolution of civil proceedings” ( Civil Procedure Rules; Practice Directions 51U and 57AD paragraph 2, although the origins of the statement are much longer established). A procedure of disclosure or discovery of relevant documents is adopted in the Courts of other, but not all, parts of the world.
The Republic is a party to the present proceedings before the English Court. This Judgment addresses questions of Mozambican law that are said to limit the involvement that the Republic's solicitors may have in the Republic's carrying out disclosure in the proceedings.
The Republic acts in the proceedings through its Attorney General. In his sixth witness statement dated 19 April 2022 Deputy Attorney General Matusse assured this Court that the Attorney General “is fully aware of and committed to ensuring compliance with the Republic's disclosure obligations”. The Deputy Attorney General however explained, for the Republic:
“2. Civil litigation in Mozambique does not provide for disclosure to be given. Prior to these proceedings, the concept of disclosure as it operates in English litigation was generally unknown within the Republic. The Republic has never before been involved in international litigation that involves the extensive disclosure obligations imposed by the English courts. As a result of this, there is no prior experience in the Republic in dealing with these matters. This disclosure exercise as a whole is novel and unprecedented.”
As a party to proceedings before this Court the Republic is under a number of duties to this Court in relation to disclosure. These include (PD51U/ PD57AD paragraph 3.1):
“(1) to take reasonable steps to preserve documents in its control that may be relevant to any issue in the proceedings;
(2) … to disclose known adverse documents, unless they are privileged. This duty exists regardless of whether or not any order for disclosure is made;
(3) to comply with any order for disclosure made by the court;
(4) to undertake any search for documents in a responsible and conscientious manner to fulfil the stated purpose of the search;
(5) to act honestly in relation to the process of giving disclosure …”
The Republic's solicitors are the law firm Peters & Peters LLP (“Peters & Peters”). As its legal representatives with the conduct of litigation on its behalf, Peters & Peters are under duties to this Court that include the following (PD51U/ PD57AD paragraph 3.2):
“…
(2) to take reasonable steps to advise and assist the party to comply with its Disclosure Duties;
(3) to liaise and cooperate with the legal representatives of the other parties to the proceedings (or the other parties where they do not have legal representatives) so as to promote the reliable, efficient and cost-effective conduct of disclosure, including through the use of technology;
…
(5) to undertake a review to satisfy themselves that any claim by the party to privilege from disclosing a document is properly made and the reason for the claim to privilege is sufficiently explained.”
These duties, of client and of legal representatives, are continuing duties that last until the conclusion of the proceedings (PD51U/ PD57AD paragraph 3.3).
Among other things, law firms acting in accordance with their duties as legal representatives bring knowledge, independence and objectivity to the procedure. In the present proceedings, each of the law firms instructed by the parties also have great experience and expertise.
The Court is pleased to trust the individual lawyers — solicitors, barristers and Chartered Legal Executives — at the law firms. They are individually officers of the Court. It is relevant to emphasise this trust. The lawyers are the lawyers to a party but their duties to assist on disclosure are there to help ensure that the disclosure procedure has integrity and is not simply performed as a service to the party.
The need for this involvement, on all sides, is reinforced by the nature of the issues in the present proceedings, which include alleged bribery in connection with major transactions involving or affecting the Republic. Serious allegations are made against parties to the proceedings, and in the case of the Republic, against some of the Republic's present and past most senior officials and office holders.
The Republic's disclosure obligations require a search for relevant documents at a number of state entities, largely comprising ministries, councils and offices. This of course presents challenges because classified documents will be involved, with associated confidentiality or secrecy.
A related, important and relevant point is that, where appropriate, this Court is able to adopt procedures that assist in respecting confidentiality (including secrecy) in various forms, whilst ensuring that documents are nonetheless available to the Court to assist in achieving a fair resolution of the proceedings. These procedures can variously limit review of, access to and use of documents. All the law firms involved in these proceedings, specifically including Peters & Peters, have experience of dealing with material of the highest confidentiality.
“State secrecy” under Mozambican Law
The term “state secrecy” has been used in two senses in the exchanges of correspondence, evidence and argument to date in these proceedings and on the current issue.
First, it is the term given to a whole process of classification of documents or information by the Mozambican state into one of four grades: “state secret”, “secret”, “confidential” and “restricted”. Second, state secrecy is sometimes the term used to refer solely to documents classified into the first of those four grades.
“Need-to-know” designation
In a letter dated 17 December 2021 Peters & Peters explained that they would not be undertaking the search and collection of documents in relation to certain of the Republic's ministries, councils and offices where “state secrecy” issues were said to be “pervasive”. However, they advised that the Attorney General would ask the Republic's Commission for the Implementation of State Secrecy (“CPISE”):
“… for a direction that certain named solicitors of this firm receive special designation which would allow them to participate in the initial [internal] review for relevance”.
This form of “designation” has been described by the Republic as a “need-to-know” (“necessidade de conhecer”) designation. The letter also stated that the Attorney General would seek from CPISE declassification of documents subject to “state secrecy”.
A letter dated 23 February 2022 from Peters & Peters then explained that certain “practical challenges” had arisen since certain ministries, councils and offices had “expressed concern” as to the involvement of individuals from outside those entities participating in the initial document gathering. Nevertheless, the Republic confirmed that its disclosure process would be “supervised by [Peters & Peters] in the ordinary way as appropriate in each instance”.
In a witness statement of 19 April 2022 Deputy Attorney General Matusse explained that “[g]enerally, the “Need to Know” principle has always been understood to be restricted to individuals within the apparatus of the Republic”. However, he went on to say that he was informed by the Attorney General that “she intends to continue her discussions with the relevant decision makers in an effort to persuade them to permit a designation” of Peters & Peters “to review documents subject to state secrecy”.
On 26 July 2022, the Republic informed this Court that the designation of Peters & Peters:
“cannot be done as a matter of Mozambican law and/or policy”.
Other parties to these proceedings, including Credit Suisse, do not accept that that is Mozambican law. Addressing the consequences, and expressing a concern shared by other parties to the proceedings, Credit Suisse went on to state:
“… [it] would be inimical to basic fairness, and rob the disclosure exercise of any integrity, if the search and review processes were undertaken without direct solicitor involvement by the very [ministries, councils and offices] whose senior officials are implicated in wrongdoing”.
This is a concern to which this Court must have serious regard. Even had a party not expressed the concern, the Court itself is concerned, as a matter of the administration of justice, to ensure that the disclosure procedure has integrity.
This hearing
Given the potential importance to these particular proceedings, and the importance that all parties should as far as possible know where they stood, in September 2022 I gave directions towards a concise substantive hearing to determine two questions.
The first, and main question, was...
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