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 | 27 April 2023 |
| Neutral Citation | [2023] EWHC 1148 (Comm) |
| Court | King's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2019-000127 and Others |
[2023] EWHC 1148 (Comm)
Mr Justice Robin Knowles CBE
Case No: CL-2019-000127 and Others
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, Richard Blakeley, Ryan Ferro and Akesh Sonecha (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 International and Others
Timothy Howe KC, Rupert Allen, Daniel Edmonds and Orestis Sherman (instructed by Weil Gotshal & Manges LLP) for the VTB Capital and VTB Bank
Ian Smith, Rupert Butler and Daniel Goldblatt (instructed by Leverets Advocacy Limited) for the 3rd, 4th and 5th Defendants
The 6 th to 10 th and 12 th Defendants did not appear but did provide draft written submissions of Frederick Wilmot-Smith, instructed by Signature Litigation LLP
Steohen Midwinter KC and Tom Wood (instructed by Enyo Law) for the Banco Comercial
Portugues, Banco Internacional de Mocambique and United Bank for Africa Katherine Ratcliffe (instructed by Howard Kennedy LLP) for Ms Isaltina Lucas (9th third party)
James MacDonald KC and Timothy Lau (instructed by Pallas Partners LLP) for Beauregarde Holdings LLP, Orobica Holdings and VR Capital Partners LP
Richard Hill KC and Gregory Denton-Cox (instructed by Macfarlanes) for the VTB Bank (Europe) SE
Hearing dates: 26 and 27 April 2023
JUDGMENT (No. 8)
Thursday, 27 April 2023
( 14:44pm)
Judgment by Mr Justice Robin Knowles CBE
First of all, I record my thanks to all parties who have had an involvement on this application for their written and oral submissions, and to the experts for their written contribution.
This judgment should be read together with my judgments previously given in this litigation, including in particular Judgment 4 ( [2022] EWHC 3054 (Comm)) (the Personal Email Accounts and Devices Judgment as it has become known), Judgment 6 ( [2023] EWHC 91 (Comm)) (the Designation Judgment as it has become known), and Judgment 7 ( [2023] EWHC 514 (Comm)).
On 3 March 2023, in the context of disclosure in this litigation, I ordered the determination of the issue of the Republic's control of former and current office holders', state agents' or employees' work-related communications and other documents held on their personal email accounts or devices, and the steps that the Republic ought to take as a result. The determination was specifically to include ministers, prime ministers and presidents of the Republic.
In summary, the Republic adopted a practice whereby it was common for its officials and office holders at all levels to use their own e-mail accounts and devices for the Republic's communications. This has been described and amplified in various materials.
It is clear that in the context of disclosure, within legal proceedings in this jurisdiction, “control” of documents may take various forms. One of those forms is practical control, as it may be conveniently termed.
Mr Jonathan Adkin KC, for the Republic, correctly emphasises that the search for an answer to the question whether there is or is not practical control is a search that needs to be approached with reference to principle.
As in my Judgment 4, I have regard in particular to the decision of Males J (as he then was) in Ardila Investments v ENRC [2015] EWHC 3761 (Comm) and to the Court of Appeal's decision in North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11. These decisions have been cited in other more recent cases before this court, the Commercial Court.
In my judgment, practical control in the present case accompanies the very practice that, as I have summarised, was adopted. It did so unless there was a law preventing the presence of practical control, or there was compelling evidence to the contrary. It is only with the presence of an arrangement or understanding whereby access to documents to which the practice applied would be granted to the Republic that the practice could work.
There is no law of Mozambique to which I have been referred that prevents the conclusion just mentioned. There is no compelling evidence to the contrary.
The conclusion is far more than simply a conclusion as to close legal or commercial relationship. It even goes well beyond the relationship simply between employer and employee, official and government, or office holder and government. It is the practice itself that holds the key.
I have taken account, in addition, the insight that evidence from Ms Lucas, a former official, has given to the matter. I do not lose sight of Mr Adkin KC's point, on behalf of the Republic, that we are dealing here with a range of different people in different positions. However the practice is one that, doing the best one can with the evidence, was relevant to all, and the conclusion is, I think, as a result, relevant to all.
I hope it may be of assistance in this context if I refer back to a specific passage in Judgment 4. Paragraph [68] was in these terms:
“Although they may not be described in the same way where the jurisdiction is not a common law jurisdiction, employees of foreign companies will have duties which are materially of the same content as those found in English law. For all sorts of reasons, from tax to contract and recordkeeping, from sustainability to training and succession planning, and from regulation to governance and more, where personal email accounts or devices are used to undertake work in employment then the employer will need access to the documents and data and that will be well understood and agreed by employer and employee. Business could be unworkable otherwise. More still where the working method used by the employee is a principal method. This is “control”. The more so when account is taken of the fact that control in the North Shore sense of “sufficient practical control” (to use Males J's term) is sufficient.”
That passage, framed in terms of companies as employers and their employees, has obvious translation across when one is dealing, as here, with the government of a state, its officials and office holders.
The conclusion that there is here practical control is supported further by, but not does depend upon, the availability of disciplinary procedures against current officials who have a person who is senior to them within a hierarchy. The expert evidence of Mozambican Law refers to this.
For all officials and office holders, not only those within a hierarchy, the conclusion is also supported by the legal requirements under Mozambican Law that the documents be archived and categorised. Again however, it does not depend on that. I am here grateful for Professor Duarte's analysis of the legislation relating to archiving.
As Mr Andrew Scott KC argued, for the Credit Suisse parties, Professor Duarte is well placed to give expert evidence in public law, but save in relation to enforcement, on this point Professor Pinto, called by the Republic, did not materially disagree or engage. On the material I have, I consider archiving is better seen as a factor pointing to practical control, rather than as a complete answer in favour of the form of control that is termed “legal control”.
In these circumstances, it is not necessary to reach a conclusion on the question of legal control under Mozambican law. Even then, the search for the conclusion would not have been confined to a search for a property right, as in part the Republic argued.
As to that, the question, whether electronic documents or electronic data held on personal accounts or devices can be property under Mozambican Law, is an important one for Mozambican Law generally.
The Republic argued, through Mr Adkin KC, that the answer is, no, they cannot. Article 1302 of the Mozambican Civil Code relied on by the Credit Suisse parties...
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