The Republic of Mozambique v Credit Suisse International and Others
| Jurisdiction | England & Wales |
| Judge | Robin Knowles J CBE |
| Judgment Date | 03 July 2023 |
| Neutral Citation | [2023] EWHC 1650 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Claim No: CL-2019-000127 and Others |
[2023] EWHC 1650 (Comm)
THE HON Mr Justice Robin Knowles CBE
Claim No: CL-2019-000127 and Others
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
COMMERCIAL COURT
(KING'S BENCH DIVISION)
Royal Courts of Justice,
Rolls Building,
London
Sharif A Shivji KC, Andrew Scott KC, Tom Gentleman, Emma Horner and Andrew McLeod, and with Laurence Rabinowitz KC and Kenneth Maclean KC (instructed by Slaughter May) for Credit Suisse International and Others
Peter Knox KC, Ian Smith, Rupert Butler and Daniel Goldblatt (instructed by Leverets) for the CS Deal Team
Frederick Wilmot-Smith (instructed by Signature Litigation) for the Privinvest Defendants and Mr Safa
Duncan Bagshaw (instructed by Howard Kennedy) for Ms Lucas
Timothy Howe KC, Rupert Allen, Daniel Edmonds and Orestis Sherman (instructed by Weil) for VTBC
Richard Hill KC and Gregory Denton-Cox (instructed by Macfarlanes) for VTBE
James Macdonald KC and Timothy Lau (instructed by Pallas Partners) for Beauregarde Holdings LLP, Orobica Holdings LLC and VR Global Partners LP
Stephen Midwinter KC and Tom Wood (instructed by Enyo) for Banco Comercial Portugues SA, United Bank for Africa plc
Jonathan Adkin KC, Jeremy Brier KC, Richard Blakeley and Ryan Ferro (instructed by Peters & Peters Solicitors) for the Republic of Mozambique
Hearing dates: 13–15 June 2023
JUDGMENT (No. 9)
(approved, with editorial corrections made)
This judgment is handed down in public on Monday 3 July 2023 at 1030 (London time) by email to all parties and transmission to the National Archives.
Introduction
This litigation comprises 11 sets of proceedings. There are related arbitrations. In the main set of proceedings the Republic of Mozambique is Claimant (“the Republic Proceedings”). In a number of other sets of proceedings that include questions of state immunity and have become known as “the Immunity Proceedings” the Republic is Defendant.
Two years ago on 21 July 2021 I ordered that there be a combined trial, of the Republic Proceedings, of Preliminary Issues that had been ordered in the Immunity Proceedings, and of all issues that remained under a number of applications brought for stays under section 9 of the Arbitration Act 1996 (save one, which is before the Supreme Court). I ordered that the trial length was to be limited to 13 Commercial Court weeks and that the trial be listed from October 2023 to December 2023,
My reasons were given in my ruling of 21 July 2021 ( [2021] EWHC 2749 (Comm)). Broadly, I sought to bring together as many of the disputes between the many parties as possible, so that as much could be decided as was necessary and possible, and within as definite a time frame as possible. There was otherwise a real danger of the litigation, and the disputes it was intended to decide, simply losing coherence and at the same time taking many years. The issues are of potentially great significance, financially and reputationally, to the state, the financial and other institutions, the businesses and the individuals involved. The allegations are of great seriousness and the sums at issue are enormous.
As well as the arbitral proceedings already mentioned there have been criminal proceedings and arbitral proceedings in other parts of the world, but this litigation is of central importance to all parties. In setting the limit to the hearing length and in fixing the dates for trial I had regard to the parties and to the proportionate requirements of this litigation between them, but also to the interests of other users of the Court.
The trial is scheduled to commence on 2 October this year, in 3 months' time. Over the last two yearstime and resources have been dedicated to case management and preparation towards trial, working through many difficulties. The time and resources have been considerable but not disproportionate to this litigation and to the end of resolving it fairly. Witness statements for trial have been exchanged. Expert evidence across a number of fields has been exchanged and, with very limited exceptions, is to be complete by the end of July. A pre-trial review and certain further interim matters are scheduled to be heard at the end of this month and beginning of August 2023.
In litigation with many challenging areas, an especially challenging area has been disclosure. The overall endeavour here has been vast, but again not disproportionate to the issues in the litigation and to the end of resolving them at a fair trial. A number of parties are still in the final stages of providing further disclosure, although what each still has to do has been defined, and as all parties understand their disclosure obligations are continuing obligations.
I have given a number of judgments and rulings in relation to disclosure. Most have concerned the Republic's disclosure. I have had to emphasise at several points to the Republic specifically the importance of disclosure and its particular importance in this litigation. As appears below, on 3 March 2023 I had to declare that the Republic was not complying with its disclosure duties, specifically in relation to documents held at three parts of the administration of the Republic.
Between 13 and 15 June 2023 I heard applications by a number of parties to strike out the Republic's claims in the Republic Proceedings and to debar the Republic from defending the Preliminary Issues in the Immunity Proceedings (“the Applications to Strike Out”). These applications were based on failures, or alleged failures, by the Republic in giving disclosure, and in addressing related orders of the Court.
Disclosure from the Office of the President and SISE
Although there are additional criticisms of disclosure and these are referred to below, at the centre of the Applications to Strike Out is disclosure by the Republic from two parts of the administration of the Republic (referred to for convenience as “State entities” in the litigation). The first is the Office of the President (“OOP”). The second is the Serviço de Informação e Segurança do Estado (“SISE”), the state security service. Disclosure has been given by the Republic from many other State entities.
The Republic itself properly acknowledged in its Disclosure Review Document that the OOP and SISE were likely to hold documents relevant to the Issues for Disclosure. The Republic has been 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 piece”.
I said in Judgment 7 at [19]:
“The exercise to date has clearly been one of scale and challenge. I take close account of the difference 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.”
I have also made clear throughout (including at [30] and following in Judgment 7) that I fully understand that the Republic is concerned about security, particularly where these State entities are involved. The security of a foreign friendly state is a matter of great importance. I have made decisions, provided explanations and offered guidance relevant to this aspect at various stages in the litigation.
The Declaration
In the result, on 3 March 2023, on applications by various parties, I concluded that the point had been reached at which it was appropriate to make a declaration (“the Declaration”) that the Republic was not complying with its disclosure duties, specifically in relation to documents held at the OOP and SISE. (I reached the same conclusion in relation to another State entity, the Council of State, but that is not at the centre of the Applications to Strike Out.)
My reasons were given in Judgment 7. Broadly I focused on the lack of evidence of challenge to the quality of the disclosure exercise where almost no documents had been found by the Republic. This was also in circumstances where Peters & Peters, and even the PGR (the state legal service), were not being allowed to participate in searches at the OOP and SISE.
The Plan
I accompanied the Declaration with Orders in these terms:
“2. The Republic, by Peters & Peters Solicitors LLP (“Peters & Peters”) (in its capacity as the Republic's solicitors and as officers of the Court), shall by 31 March 2023 prepare and file with the Court a plan addressed to the Court (the “Plan”), and copied to the Participating Parties, for giving disclosure of relevant documents from the OOP, SISE, the Council of State and the Republic's Navy.
3. The Plan shall be prepared on the basis that the approach to disclosure contained therein will be a fresh exercise, as though the Republic were starting its disclosure exercise at the entities listed in Paragraph 1 and 2 from the beginning.
4. The Plan may include any request to the Court to preserve the confidentiality of any disclosable document, or for the Court to consider exempting a document from disclosure including where it is not of central relevance to the Proceedings but is categorised as State Secret.
5. Where a request in accordance with paragraph 4 above is made, the Court shall discuss with the Participating Parties how to determine such a request.
6. The Plan, and any disclosure provided by the Republic in accordance with it, shall be considered at the April 2023 CMC.”
On 31 March 2023 Peters & Peters filed a Plan.
In relation to the OOP specifically, this was stated in the Plan:
“22...
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