BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
COMMERCIAL COURT
(KING'S BENCH DIVISION)
Royal Courts of Justice, Rolls Building, London |
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B e f o r e :
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The Republic of Mozambique |
Claimant/Respondent |
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- and – |
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Credit Suisse International and Others |
Defendants/Applicants |
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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
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Crown Copyright ©
Robin Knowles J CBE:
Introduction
Disclosure from the Office of the President and SISE
"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."
The Declaration
The Plan
"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."
"22. The Republic and Peters & Peters are not able to put forward a disclosure plan for the OOP.
23. The PGR, represented by Deputy Attorney General Vasco Matusse, has met with both … the Minister for the Presidency, as well as … the Director of the OOP. The judgment and order … were explained to them. The importance of a further disclosure exercise involving Peters & Peters as much as possible was communicated to the OOP. The OOP indicated that it would consider this request.
24. Thereafter, it was communicated to the PGR that following the meeting referred to in paragraph 23 above, the OOP had, again, searched for relevant hard copy and electronic documents, strictly following the guidance by the PGR. The search benefited from IT technical staff and specialised officials responsible for the Office's archives and classified material. As a result of this new search no additional documents were found. As a result, it is the position of the OOP that there is no need for further searches to be carried out."
"15. Deputy Attorney General Vasco Matusse has met representatives of SISE. The judgment and order … were explained to them. The importance of a further disclosure exercise involving Peters & Peters as much as possible was communicated to SISE. SISE indicated that it would consider this request.
16. In responding, SISE indicated that it had to take into account the fact that:
a. SISE is an institution definitionally subject to State Secrecy. This means that all documents produced by SISE are subject to State Secrecy.
b. SISE, given its role as the Republic's intelligence service, has particular policy and operational reasons for restricting access to its files.
17. In light of this, and following further meetings between the PGR and SISE, SISE agreed to certain searches being undertaken. SISE will not permit a search for hard copy documents in its archives. SISE has explained to Deputy Attorney General Vasco Matusse that (a) it has already undertaken searches of its hard copy documents and not found relevant documents; and (b) SISE believes that it does not hold hard copy documents relevant to the Proceedings because the relevant SISE individuals engaged in the criminal conspiracy either did not use SISE to store documents or had removed them by the time the conspiracy was uncovered. Moreover, the hard copy documents it does hold are subject to State Secrecy and are operationally sensitive.
18. The further searches at SISE will, therefore, be limited to electronic searches of:
a. All institutional e-mail accounts held on SISE's server, being 39 e-mail accounts. The server has been in operation since 2018. No accounts for Mr Leão, Mr do Rosario and Mr Mutota are on the server.
b. Four desktop computers – These computers have been identified by SISE as the appropriate computers given the topics which SISE have been told are relevant. Specifically: i. Two of these computers originate from the Office of the Director General. They were used by secretaries to the Director General, as Directors General do not generally use computers themselves. One dates from the period that Mr Leão was Director General. The other dates from 2018. ii. The other two of these computers originate from the General Secretariat of SISE which is responsible for receiving, transmitting and managing correspondence. The two computers date from 2018.
19. Supervision and Training of the PGR disclosure team: Peters & Peters has provided training to the PGR disclosure team over a period of years. That training has continued in advance of the SISE disclosure process and has included tailored training and supervision from Peters & Peters in relation to this entity. In light of the focus on electronic documents, consideration has also been given to the appropriate keywords to be used.
20. The search of the identified electronic repositories at SISE is being conducted by the IT professionals from the PGR disclosure team, attended by SISE. The method being used is applying the attached keywords, with responsive documents being isolated and saved for consideration by the PGR. The PGR will seek the declassification of any potentially relevant documents from SISE. Once documents have been declassified, Peters & Peters will review material on its disclosure platform and consider it for relevance. Relevant material will thereafter be disclosed.
21. The search has started. To date, no decisions on declassification have been made. The Republic intends to complete the aspect of the Disclosure Plan relating to SISE by 28 April 2023."
The List
"The plan itself, which I read the moment I received it, was, again, I will be completely open, fully disappointing in relation to the Office of the President, and I wasn't impressed with the treatment in relation to SISE."
In Ruling 30 made at the April CMC I stated:
"1. … On the face of things and as I see it at the moment - which means I am open to further understanding and also matters may develop - although I required a plan there is no plan for the OOP. Further, on the face of things, although I required a plan, there is no plan in relation to SISE that would achieve compliance with the objectives that the plan was designed to serve.
2. I am asked to make a declaration of breach or continuing breach in relation to disclosure duties and in relation to the order for a plan. I am not going to take that formal step. I have said what I have said just now and that is sufficient for the moment. Credit Suisse and others couple a request for declarations with a request to move on to a full hearing about strike-out. That hearing I will make arrangements to enable.
3. I need to say something to each of the two sides about such a hearing.
4. To the Republic, the importance of every day from here to the hearing should be evident. Every day is an opportunity to try and achieve a position in which the Republic can say that matters have moved on and the application is no longer needed, or is less powerfully needed.
5. On the other hand, I need to say to the Credit Suisse team and others that, as I know that they too will have in mind, amongst the points the court will consider at such a hearing is the question whether, even if some aspect of sanction is or may be necessary, that is the right point in time or whether a point in time that is closer to or at trial is more appropriate. Those points may come into the equation if one reaches a question of consequence or sanction or possible consequence or sanction. And strike-out is not the only matter that would fall for consideration, all other things being equal.
6. That said, I am persuaded that further court time should be allowed for the hearing and in reasonably short order. I adhere to that view, notwithstanding the further work it is going to put onto all sides when there is a lot else to be done as well."
What the Republic has gone on to do
a. The OOP has now gone on to conduct further searches targeted on particular offices within the OOP, namely (i) The President's Office (ii) Offices of the Advisors to the President (iii) the General Secretariat and (iv) the Office of the Chief of Staff.
b. A search of computers from the General Secretariat, the Office of the Chief of Staff and from what is called the "Sessions Room" has been conducted by staff from the OOP. The OOP does not have a server or centralised facility for storing documents, and these computers were chosen "because it is thought they are likely to be the electronic repositories where potentially relevant material (other than emails) would be found".
c. Institutional email accounts of the OOP are held by the agency INAGE and "OOP has confirmed that it will authorise INAGE to carry out certain searches of emails" but "the details of the email accounts to be searched and the keywords to be used have yet to be confirmed" although Mr Oliver hoped (as at 26 May) "to address this at a further meeting with the OOP as soon as possible".
d. The OOP has reviewed the List and "responded separately to each of the 70 items of the List" and has searched for them. Documents were found under 5 items.
e. OOP has found 20 documents (a letter of 12 June 2023 from Peters & Peters to all parties explained these comprised 59 individual documents when separated for review, of which 8 were determined by a solicitor at Peters & Peters to be relevant), including 2 of a total of 3 previously identified by OOP as being potentially relevant (the third "cannot now be located").
A footnote to the Republic's skeleton argument reports a further meeting with the OOP attended by Mr Oliver on the day of the skeleton argument (8 June 2023) "at which the OOP was challenged by Mr Oliver in relation to its disclosure".
a. On 10 May 2023, SISE provided its response to each entry in the List. "SISE's responses were independently arrived at and did not take account of the Republic's response to the List prepared by its legal team" but were also, for one reason or another, incomplete as regards some 24 entries. There were 20 entries in respect of which SISE said there were, or they had, no documents, 16 entries in respect of which SISE said any documents would be in the form of personal correspondence and would therefore not be held by SISE, and 10 entries in respect of which SISE said that any documents would be held elsewhere in the Republic.
b. Through a series of meetings with SISE in Maputo, on 16, 24, 25 and 26 May in Maputo, Mr Oliver and others from Peters & Peters challenged representatives of the PGR, and from SISE. SISE attended by a senior individual responsible for legal affairs, a senior individual responsible for archiving and a member of SISE's IT team. The challenge was to SISE's responses to the entries in the List in detail and explanations were sought for those responses. Examples are given in Mr Oliver's statement but included pushing SISE to confirm, in relation to each of the items in the List where they said there were no documents or the documents were elsewhere, how they had arrived at their conclusions that the institution held no documents and whether searches had taken place in response to their receipt of the List, including further detail as to who had carried out searches, where such searches had been carried out, what SISE had looked for and how searches had been undertaken. Mr Oliver and colleagues asked specifically about letters which had been produced by way of disclosure, on SISE letterhead, which appeared to have been authored by the former Director General of SISE, General Lidimu, in 2017. Mr Oliver and colleagues showed SISE a translation of the Second Witness Statement of Luke Barden de Lacroix and asked specifically about those categories of document that Ms Lucas (a former Director of Treasury of the Republic) had identified should be held by SISE.
c. SISE confirmed that searches for documents, whether they bore a reference or not, had been carried out in its electronic and hard copy archives. Such searches included searches for meeting notes, minutes, agendas and other similar documentation.
d. The SISE representative with responsibility for legal affairs stated that he, along with 5 other individuals in his team, had carried out searches of SISE's hard copy and electronic archives on 4 occasions including specifically in response to receipt of the List. They had looked for documents, including each of the items set out in the List, in the places where they would have expected them to be, but they had not found anything and, in respect of certain categories of documents, they confirmed they would not have expected them to be anywhere other than in their archives if they still existed. For reasons of national security, SISE were neither willing to confirm the categories of documents that should be in its archives nor the structure of its archives. However, Mr Oliver states it was apparent that, in respect of referenced letters, these were organised chronologically and the representatives of SISE were not able to find a document bearing the relevant reference in the chronological run of documents.
e. SISE confirmed that it was and still is rare for individuals working within the institution to use institutional email accounts. They had checked whether any of Mr Leão, Mr Mutota or Mr do Rosario had SISE institutional email accounts, which they confirmed have the domain "@sise.org.mz" and established they had not. The SISE representative with responsibility for legal affairs relayed that few people in SISE had credentials to log in to the institutional IT system and even fewer people had an institutional email account. He made clear it was not surprising to him that none of Mr Leão, Mr Mutota or Mr do Rosario had email accounts, including because those working within SISE are strongly discouraged from using electronic means of communication. Members of the Peters & Peters team have carried out searches of the disclosure to see what evidence could be located of the use of institutional email. The results were that the only domain name that could be located in documents including "SISE" is "@sise.org.mz". The Republic has collected under 100 documents sent to email addresses including the domain "@sise.org.mz". Peters & Peters has reviewed these documents and they are not relevant to the Proceedings. In addition both Mr Leão and Mr Mutota, who are incarcerated in separate institutions, separately informed an associate at Peters & Peters that they did not use SISE institutional email accounts.
f. No letters purportedly written by General Lidimu in 2017 could be located. The SISE representative with responsibility for legal affairs could provide no explanation for the absence of these letters in SISE's archives. He accepted that it may be that the institution produced these letters, but they had been searched for and were not in SISE's records.
g. SISE's IT professional confirmed that he and 2 representatives from the PGR had carried out searches of the 4 computers within SISE identified in the Plan. He had applied the 454 keywords appended to the Plan and reviewed responsive documents for relevance to the Proceedings. SISE has identified no relevant documents, but searches of the 4 computers within SISE had (despite the terms of the Plan) not extended to 39 institutional email accounts. Deputy Attorney General Matusse is taking urgent steps enable PGR to review documents that responded to keyword searches.
h. Entry 74 in the List concerns studies carried out by SISE in 2010/2011 to identify threats and concerns regarding Mozambique's coastline. SISE has accepted that studies were carried out. SISE representatives were able to say that the documents concerned would contain an analysis of the threat faced by the Republic and how the Republic could address that threat (and that even studies prepared in 2011 would likely contain information relevant to current actual or potential threats to the Republic). The SISE representative with responsibility for legal affairs was aware that reference had been made during a criminal trial in Mozambique to a study concerning the Republic's EEZ and reportedly created by SISE. He stated to Peters & Peters that he and his colleagues had carried out searches for it and they had not been able to locate it. It is clear that had it been located, SISE would resist production. The underlying reason would be national security but the Republic makes clear that it would also maintain a challenge to relevance. It adds that related documents would be likely to have been held by the Ministry of National Defence and the Ministry of Interior, from which disclosure has been given (the adequacy of disclosure from these Ministries is not at the heart of the Applications to Strike Out).
Striking out in the context of disclosure and non-compliance
"9. The Court's concern, front and centre, is that any trial is a fair trial. That is what the parties and the public are entitled to; and it is what the rule of law requires.
10. 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.
…
38. Non-compliance with the court's orders or with the disclosure process is an important matter in its own right. Here of course the importance is, again, in the context of fairness of trial. …".
"… The importance of litigants obeying orders of court is self-evident. Once a court order is disobeyed, the imposition of a sanction is almost always inevitable if court orders are to continue to enjoy the respect which they ought to have. And, if persistence in the disobedience would lead to an unfair trial, it seems, at least in the absence of special circumstances, hard to quarrel with a sanction which prevents the party in breach from presenting (in the case of a claimant) or resisting (in the case of a defendant) the claim. And, if the disobedience continues notwithstanding the imposition of a sanction, the enforcement of the sanction is almost inevitable, essentially for the same reasons…"
"… The authorities demonstrate that it is vital for the court, in the interests of justice, to have effective powers, and effective sanctions. Without these, it would be possible for a defendant (or, in a different situation, a claimant) to flout the orders of the court, which are the court's considered means by which to keep the scales of justice for the parties even. If once it became known that the court was unable or unwilling to maintain the effectiveness of its orders, then it would lose all control over litigation of this kind, with terrible consequences for the administration of justice. …"
"… leaving aside instances of flagrant abuse of process, the touchstone for relief will usually be whether the conduct of the defaulting party has jeopardised a fair trial or prevented the court from doing justice …".
"… the test in every case must be what is just and proportionate".
As Credit Suisse highlight, he went on to note at [62] that:
"one of the objects to be achieved by striking out a claim is to stop proceedings and prevent further waste of precious resources on proceedings which the claimant has forfeited the right to have determined".
"54. … I adopt, as a general principle, the observations of Mr Justice Millett in Logicrose Ltd v Southend United Football Club Limited (The Times, 5 March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules - even if such disobedience amounts to contempt for or defiance of the court - if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled - indeed, I would hold bound - to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke.
55. Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself. That, as it seems to me, is what happened in the present case. The trial was "hijacked" by the need to investigate what documents were false and what documents had been destroyed. The need to do that arose from the facts (i) that the petitioners had sought to rely on documents which Nigel Tobias had forged with the object of frustrating a fair trial and (ii) that, as the judge found, Nigel Tobias was unwilling to make a frank disclosure of the extent of his fraudulent conduct, but persisted in his attempts to deceive. The result was that the petitioners' case occupied far more of the court's time than was necessary for the purpose of deciding the real points in issue on the petition. That was unfair to the Blackledge respondents; and it was unfair to other litigants who needed to have their disputes tried by the court.
56. In my view, having heard and disbelieved the evidence of Nigel Tobias as to the extent of his fraudulent conduct, and having reached the conclusion (as he did) that Nigel Tobias was persisting in his object of frustrating a fair trial, the judge ought to have considered whether it was fair to the respondents - and in the interests of the administration of justice generally - to allow the trial to continue. If he had considered that question, then - as it seems to me - he should have come to the conclusion that it must be answered in the negative. A decision to stop the trial in those circumstances is not based on the court's desire (or any perceived need) to punish the party concerned; rather, it is a proper and necessary response where a party has shown that his object is
not to have the fair trial which it is the court's function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise."
"120. An order striking out a defence and debarring a defendant from defending (or striking out a claim) is the ultimate sanction that the court can impose for a breach of its order that does not amount to a contempt of court. It therefore must be a sanction of last resort and is likely only to be imposed for a serious and deliberate breach. The sanction must be necessary and proportionate in the circumstances. Lord Clarke said in Summers v Fairclough Homes Ltd [2012] UKSC 26; [2012] 1 WLR 2004 at [61], giving the judgment of the Supreme Court that: "the test in every case must be what is just and proportionate", and he emphasised the draconian nature of the strike out sanction and the flexibility of remedies available to the court to fashion a proportionate remedy. Rix LJ similarly emphasised in Aktas v Adepta [2010] EWCA Civ 1170; [2011] QB 894 at [92] the flexible remedies that the court had at its disposal to make the sanction fit the breach. If a breach, though serious, is excusable, an order striking out a party's case and debarring it from proceeding further may well be disproportionate, at least if another sanction is sufficient to achieve the ends of justice notwithstanding the breach.
121. I have refused to vary or revoke the order for standard disclosure. I did so on the basis that the Bank's disclosure was and remains necessary for a fair trial of the action, and because the importance of disclosure substantially outweighs the existence of a risk to the Bank in complying with the order. The Bank is now in serious breach of the order and will remain in breach: I have formed the view that the Bank will not give disclosure while SAMA's ruling remains in place and that it is unwilling to approach SAMA to change it. In those circumstances, there is little real alternative available to the court but to strike out the Defence and debar it from defending at the very least those issues that are fact sensitive and to which the Defendant's disclosure documents could be relevant. The question that I have to decide is whether the breach is so serious and inexcusable that the Bank must be taken to have forfeited its right to a trial even of issues of law or foreign law, where documents of the Bank will be irrelevant to the outcome of those issues.
122. There was an interesting argument at the Bar as to whether a full debarring order is a "normal" or "usual" response of the court to serious non-compliance with its orders. The Claimants relied on Caven-Atack v Church of Scientology Religious Education College Inc (unrep, 31.10.94, C.A.), cited in Matthews and Malek on Disclosure (5th ed., 2016), the dicta of Christopher Clarke J in JSC BTA Bank v Ablyazov (No.3) [2010] EWHC 2219 (QB); [2011] 1 All ER (Comm) 1093 at [38] and the dicta of Soole J in Michael v Phillips [2017] EWHC 1084 (QB) in support of that proposition. I do not consider that those decisions establish that under the Civil Procedure Rules an order striking out the whole of a claim or defence, as the case may be, is the standard or expected order in the case of a serious breach of a court's order. In many cases of serious breach such an order may be the only effective and proportionate sanction, but – at least where the breach is not contumacious – it would be surprising if there were a standard approach under the flexible approach mandated by the Civil Procedure Rules.
123. I prefer the approach described by Lord Clarke and Rix LJ to which I have referred. The court must have regard to the circumstances of the individual case and do what is necessary and proportionate to mark the seriousness of the breach of its order in a way that is consistent with the interests of justice and the overriding objective. The seriousness of the breach, the extent if at all to which it is excusable and the consequences of the breach will be very important factors, but the overriding criterion is the requirement for the sanction to be proportionate and just.
124. The choice for the Court now is to strike out the Defence and debar the Bank entirely from defending the claim, or to strike out and debar save as regards those issues that can fairly be tried without disclosure by the Bank. It clearly would not be just to allow the Bank to defend any factual issue where it might have relevant documents that it should have disclosed. The risk of whether the Bank's documents might be relevant to such issues would clearly have to fall on the side of the Bank. In my judgment, the Court can properly except certain issues from a debarring order if it is satisfied, first, that such issues can fairly be tried without the Bank's disclosure; second, that such an exception would be in the interests of justice and fair to both parties; third that the conduct of the Bank is not so inexcusable that a full debarring order is deserved and is proportionate, and fourth that making exceptions from the debarring order in that way does not undermine the authority of the Court. There must clearly also be some sensible purpose served by having a trial of certain issues only."
"As PIFSS points out, whilst the court is empowered to strike out a defence, the case law indicates that responses to non-compliance can be carefully calibrated to do justice in the case (an example being Fancourt J's decision in Byers v Samba [2020] EWHC 853 (Ch) §§ 120-123 and 129-130, where he disbarred the defaulting party from defending only on the particular issues where disclosure was required for a fair trial). …"
"No penalty by way of committal or fine shall be imposed in respect of any failure or refusal by or on behalf of a State to disclose or produce any document or other information for the purposes of proceedings to which it is a party."
The Republic's argument that this had application here was rightly robustly answered by Mr Howe KC. The section, in my judgment, does not assist the Republic; striking out is not a "penalty by way of committal or fine".
The argument of the applicants for striking out, and now, and in full
"… [i]n some cases the trial itself, rather than a point before trial, will be the point at which there is greatest clarity and where precision is possible…".
Mr Adkin KC relied on this for the Republic, saying that this was just such a case. Credit Suisse disagreed and its submissions may be summarised as follows:
(1) The Court's duty is engaged whenever the fairness of the trial is jeopardised. If the Court is satisfied that the Republic's breaches create a substantial risk of an unfair trial, the Court's duty is to protect against that risk. It would be wrong in principle to allow the litigation to proceed any further.
(2) The need to conserve the resources of the Court and the Parties also cautions against deferring determination of the issue. That is one of the facets of the overriding objective under CPR r.1.1(2)(e). Very substantial resources have already been expended in addressing compliance by the Republic with its disclosure duties.
(3) The disclosure failures are not discrete and have not been remedied and the Court cannot be satisfied that there is any real prospect that they will be remedied by the time of trial. The Republic's conduct has put the fairness of the trial in jeopardy.
(4) A fair trial is one at which the issues in the litigation are determined based on the disclosure that the Court has required. It is unfair for a trial to be hijacked by the need to deal with disclosure failings; the more so where they are serious and wilful ones which are identified ahead of the trial, and which jeopardise the fairness of the trial itself and where the failings arise notwithstanding a lengthy and intensive process of case management in which the Republic has had ample opportunity to comply but has chosen not to do so.
The Court's assessment and decision
(a) SISE has provided an answer (albeit the answer is open to dispute) to the question why material connected with dishonest activities would not come into, or remain at, SISE, even were reference numbers or SISE letterheads to be involved.
(b) The Republic has explained that SISE does not hold personal correspondence.
(c) More has become known (as has been the subject of correspondence and case management discussion) about damage to or deletion of some electronic documents that cannot or cannot yet be accessed.
(d) SISE has also provided a confirmation that Mr Leão, Mr Mutota or Mr do Rosario did not have institutional email accounts at SISE and an explanation why that would be the case.
(e) In the Republic, office holders and officials used personal email accounts and personal devices for their work-related correspondence.
(f) The Republic has made the point that documents might, if they existed, be held elsewhere in the Republic (for example at the Ministry of Finance and Economy where as I said in Judgment 7 at [20] important searches had been undertaken by the Republic, and where at material times Mr Chang was Minister of Finance).
(a) with the benefit of close study of the transcript at the hearing of the Applications to Strike Out, the review by Mr Hill KC and the discussions that followed at that hearing of the position with electronic documents, archives and databases, and transfers;
(b) the points made by Mr Clark in his 14th and 15th witness statements, to establish where searches or further searches might be undertaken at the OOP for the period before 2018 (the date from which most of the electronic searches are directed);
(c) the points made in oral argument on the hearing of the Applications to Strike Out by Mr Duncan Bagshaw for Ms Lucas in relation to the Central Bank.
"A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial …" or
"… where a party has shown that his object is not to have the fair trial which it is the court's function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise."
(1) The position has developed since Judgment 7 was given and the Declaration was made. The Republic has further work to do to achieve compliance with its disclosure duties, which are continuing.
(2) The Republic is in breach of the order made at the March hearing requiring a remedial disclosure plan for the OOP and SISE but a number of things have since occurred that are material and which serve the ends to which that order was directed. The fact that the Plan in relation to SISE was not good enough does not mean that steps taken pursuant to it do not count; it means that more was required.
(3) The Republic's breaches of its disclosure duties and of the Court's orders in relation to the OOP and SISE were serious, but the position is improved. Nonetheless the nature and importance of the obligations in issue, both the disclosure duties and the orders made to enforce them, do remain fundamental to core aspects of the overriding objective and of the Court's paramount duty to ensure fairness.
(4) The Republic's breaches declared by the Declaration were in some particulars wilful in that the Republic was choosing not to comply with its obligations, and this despite them having been made clear to the Republic by this Court and by Peters & Peters. However the Republic has reconsidered its choices in material, but not all, respects, with the result that further work has been done. The continued failure to produce a plan for the OOP despite being ordered to do so is an example where the Republic has not reconsidered its choices. The Court expects the Republic to reflect further on what to do about this continued failure.
(5) As things now stand the Court does not accept that the fairness of the proceedings and the possibility of a fair trial are jeopardised. The Republic's choices are not now "to withhold the disclosure required of it", but there is still work to be done to achieve the disclosure required of it. The Court does accept that it will be necessary to keep under review whether there is any unfairness on any issue. The Court also accepts that enforcing compliance with rules, practice directions and orders is important in and of itself, as a matter of the administration of justice and the rule of law. What can be said in the present litigation is that compliance by the Republic with its disclosure duties is improving, and orders of the Court have helped achieve that. The position is not a satisfactory position, but it is not as acute as some positions. The consequences may yet be very serious for the Republic, and in a number of ways, but striking out its statements of case now is not required in the administration of justice or by the rule of law.
(6) Striking out, now, the Republic's statements of case and its claims, and debarring it from defending, is not the only principled, proportionate and just sanction in response to what the Republic has done, and where things currently stand. The Court accepts that what is involved is what Mr Scott KC terms the Court's "paramount duty of fairness and ensuring compliance", but the Court is quite clear that it can honour that duty as things proceed to trial and at trial, and it is of course committed and determined to do so. The Court does not rule out striking out, including of all but perhaps especially of particular allegations (of claim or defence), at trial, or the deployment of inferences adverse to the Republic. Nor does the Court rule out other alternatives.
Conclusions