“The judge is content for Mr Andrew to show the confidential draft judgment to Mr Treverton-Jones KC on the same basis of confidentiality. This is not however to be taken as any indication that an application on behalf of Mr Andrew in relation to the confidential draft judgment would be appropriate.”
“I am going to require a formal application supported so far as possible by evidence, if this is even to begin. That is a matter for you and your client as to how quickly that is done, if it is to be done. I will reserve the matter to myself. The first thing I shall do is, if there is such an application, is to give it consideration. And there is a whole range of things that I could do at that point.”
“Further to your attendance at the hearing on8 December 2023 , the judge would be pleased to know for administrative reasons if an application is to be issued and, if so, when.”
“Mr Andrew will not now be making an application for permission to appeal to the judge. He has instead filed an appellant’s notice seeking permission to appeal directly from the Court of Appeal. No disrespect is intended by seeking permission directly from the Court of Appeal. The reason for this choice is that, given that Mr Andrew’s application was not considered and determined at the consequentials hearing, and no extension of time was granted, the lower court is now functus officio and no longer has jurisdiction to determine an application for permission to appeal.”
“P&ID was represented in the arbitration initially by Harcus Sinclair LLP, a London based law firm, Mr Seamus Andrew had conduct. The representation of P&ID would move from Harcus Sinclair LLP to Mr Andrew's firm SC Andrew LLP in September 2014, as Mr Andrew became a partner there. On11 December 2012 Mr Trevor Burke QC (now KC) was sent a file of documents to read into P&ID's claim. Mr Burke KC was a nephew of Mr Michael Quinn.”
“Mr Andrew and Mr Burke KC, among others, have very significant personal interests in this matter. They may have a claim to what were described by Mr Howard KC as "life-changing sums of money", contingent upon success for P&ID in this matter. The figures are up to£850 million in the case of Mr Burke KC and up to£3 billion in the case of Mr Andrew. Each gave written and oral evidence at the trial. Mr Andrew tried his best to answer questions carefully and accurately. Mr Burke KC gave answers in a way that appeared business-like and direct at first, but became increasingly exercised as he was taken through more documents.”
“493. There remain three things that bring the case within section 68(2)(g), in my judgment, as an "irregularity" (to use the language of the section). Each amounted to fraud by which the Awards were obtained, and by reason of them the Awards or the way in which the Awards were procured was contrary to public policy. 494. The first is P&ID's providing to the Tribunal and relying on evidence before the Tribunal that was material but was evidence that P&ID knew to be false. Specifically, this was the evidence of Mr Michael Quinn in his witness statement of14 February 2014 that he was "explain[ing] how the GSPA came about" when he did not do that because he did not mention that Mrs Grace Taiga had been paid a US$5,000 bribe at the end of December 2009 and a£5,000 bribe on29 March 2010 : see [168]-177], [247]-[254] and [417] above). 495. The second is P&ID's continued bribery or corrupt payment of Mrs Grace Taiga directed to the arbitration period in order to suppress from the Tribunal and Nigeria the fact that she had been bribed when the GSPA came about. This continued bribery or corrupt payment is fairly described by Nigeria as bribery "to keep her 'on-side', and to buy her silence about the earlier bribery". Specifically, these were bribes or corrupt payments on 14 July, 14 August and30 September 2015 totalling NGN 220,000 (then equivalent to US$900 ), a bribe or corrupt payment on14 September 2015 of US$1,000 and a bribe or corrupt payment on14 June 2016 of US$3,000 (sent to Vera Taiga): see [401]-[405] above. 496. The third is P&ID's improper retention of Nigeria's Internal Legal Documents that it had received during the Arbitration. It retained these (rather than returned them unread) so as to monitor Nigeria's position and awareness as the Arbitration continued. This included monitoring whether Nigeria had become aware of the deception being practised by P&ID on the Tribunal and on Nigeria as a party before the Tribunal. Specifically, there was a flow of over 40 of Nigeria's Internal Legal Documents to P&ID during the period of the Arbitration from commencement on22 August 2012 to Final Award on31 January 2017 . The detail of the contents of a number of them is discussed above. All are material, including for the fact that they showed to P&ID that Nigeria had no awareness that Mrs Grace Taiga had been bribed when the GSPA came about and that bribery or corrupt payments continued to buy her silence. 497. These three things do not represent the full extent of the fraud and conduct contrary to public policy on the part of P&ID that was shown at the trial. But it is these three things that are central to Nigeria's challenge under section 68. They do not, it will be noted, include separately Mr Quinn's evidence about finance and engineering, but that is because those areas face the difficulty (brought out by Lord Wolfson KC particularly in his argument under section 73, made at the trial) that Mr Quinn's evidence on them was, to some extent, already challenged or the subject of attempts at challenge in the Arbitration, including by Mr Shasore SAN at the hearing on liability. It was Nigeria's own case in the Arbitration, including at the hearing on quantum, that P&ID had done nothing under the GSPA.”
“592. This case has also, sadly, brought together a combination of examples of what some individuals will do for money. Driven by greed and prepared to use corruption; giving no thought to what their enrichment would mean in terms of harm for others. Others that in the present case include the people of Nigeria, already let down in so many ways over the history of this matter by a number of individuals in politics and administration whose duty it was to serve them and protect them. 593. I will be referring a copy of this judgment to the Bar Standards Board in the case of Mr Trevor Burke KC and to both the Solicitors Regulation Authority and the Bar Standards Board in the case of Mr Seamus Andrew. I trust that these two regulators of the legal profession in England & Wales will consider the professional consequences of the conduct of Mr Burke KC and Mr Andrew in relation to Nigeria's Internal Legal Documents. As a separate matter, although there was argument before me about the acceptability of the remuneration arrangements for Mr Burke KC, that would be a satellite point for the issues I have the responsibility to decide and is best left for the regulator for whom it will be a central point.”
“It would be surprising if the effect of the CPR were that a person affected by a decision could not in any circumstances seek permission to appeal unless he was a party to the proceedings below. Such a rule could work a real injustice, particularly in a case where a person who was not a party to the proceedings at first instance, but who has a real interest in their outcome, wishes to appeal, the losing party does not wish to appeal and an appeal would have real prospects of success.”
“if the decision when properly analysed and if it were to be recorded in a formal order would be one that the would-be appellant would not be seeking to challenge or vary, then there is no jurisdiction to entertain an appeal.”
“Pausing there, a court is a public authority for the purposes of HRA 1998, s 6 (see s 6(3)(a)) and, by s 6(1), it is 'unlawful for a public authority to act in a way which is incompatible with a Convention right'. In the present case I have, unfortunately, concluded that the High Court has acted in a way which is incompatible, that is in breach of, the Convention rights of PO, SW and the local authority to a fair trial in relation to the adverse findings that were made against them. It is therefore open to the appellants to 'rely' on their assertion that the High Court has acted unlawfully in 'any legal proceedings' which expressly include 'an appeal against the decision of a court or tribunal' (s 7(1) and (6)). Indeed, s 9(1) is explicit in providing that proceedings in respect of an assertion that a judicial act is unlawful under s 7(1)(a) may only be brought by exercising a right of appeal.”
“An attack on an individual’s reputation which obstructs his or her ability to pursue a chosen professional activity may therefore have consequential effects on the enjoyment of the right to respect for his or her “private life” within the meaning of Article 8 (see, for example, Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 5930/00, § 50, ECHR 2004-VIII). Consequently, the Court has accepted that the adverse portrayal of an applicant’s conduct in an authoritative judicial ruling could, by the way it stigmatised him, have a major impact on his personal and professional situation, as well as his honour and reputation (Vicent Del Campo v. Spain, no. 25527/13, § 48,6 November 2018 ).”
“What the Strasbourg court requires is that the decision-making process involved in measures of interference, when considered as a whole, must be fair and such as to afford due respect to the interests safeguarded by article 8.”
“Second, it is not necessary to deal expressly with every point, but a judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered. Which points need to be dealt with and which can be omitted itself requires an exercise of judgment. Third, the best way to demonstrate the exercise of the necessary care is to make use of “the building blocks of the reasoned judicial process” by identifying the issues which need to be decided, marshalling (however briefly and without needing to recite every point) the evidence which bears on those issues, and giving reasons why the principally relevant evidence is either accepted or rejected as unreliable. Fourth, and in particular, fairness requires that a judge should deal with apparently compelling evidence, where it exists, which is contrary to the conclusion which he proposes to reach and explain why he does not accept it.”
“We make the following general comments on the duty to give reasons. “(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know…whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.”
“34. Importantly, Article 8 private life rights include procedural rights to fair process in addition to the protection of substantive rights. Thus in Turek v Slovakia (Application No 57986/00)(2007) 44 EHRR 43 , at [111], the European Court said that “whilstArt.8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Art.8”… 53. While I accept that in different circumstances a finding that a non-party has funded a purchase, or has funded litigation (where such finding may properly be said to arise in the context of dealing with an evidential issue that is before the court) may very well not be objectionable or capable of engaging Article 8 or Article 6 rights, I do not consider that it is possible on the exceptional facts of this case to “salami slice” the Adverse Findings in the manner suggested by Mr Evans. I consider that the Adverse Findings must be viewed as a whole; taken together they add up to a complete narrative which is both extremely serious and clearly capable of engaging Article 8 and Article 6 rights, together with the entitlement to common law protections.”
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”
“The Court has stressed that the question of the applicability of Article 6 cannot depend on the recognition of the formal status of “party” by national law (see Arnoldi v. Italy, no. 35637/04, § 28,7 December 2017 ).”
“…it is averred that Messrs Burke QC and Andrew were under a professional and/or a legal duty under English law, as soon as they became aware that the FRN Privileged Documents contained privileged and/or confidential information belonging to FRN, and in any event as soon as it became apparent (or ought reasonably to have become apparent) that the FRN Privileged Documents had been obtained improperly and/or through collusion (i) not to read any further FRN Privileged Documents; (ii) to return the FRN Privileged Documents to FRN and/or to instruct P&ID to do so (and to stop acting for P&ID (to the extent that Mr Burke QC was acting for P&ID at all) if it refused); and (iii) to notify FRN and the Tribunal that they had received the FRN Privileged Documents, and that those Documents appeared to have been obtained improperly and/or through collusion.”
“Mrs White’s communication of that confidential/private information to her solicitors for their use in the litigation could never be characterised as misuse of it.”
“Hildebrand v Hildebrand itself is accordingly no authority for the proposition that a spouse may, in circumstances that would otherwise be unlawful, take, copy and retain copies of confidential documents. In other words, it is no authority for the so-called Hildebrand rules. Wilson LJ, who as counsel had successfully argued in Hildebrand v Hildebrand that the court should not act in a way which might appear to condone such conduct, at p 253D, later acknowledged judicially in White v Withers LLP that the Hildebrand rules “can hardly be accounted robust” and that they needed to be tested for compatibility with principles in other areas of law[2010] 1 FLR 859 , para 83. As he said, at para 79: “The ratio decidendi of Hildebrand, important though it has proved to be, relates only to the time at which copy documents thus obtained should be disclosed to the other spouse, namely no later than at the normal disclosure stage and thus in effect (albeit now subject to the prohibition against disclosure prior to the first appointment contained in rule 2.61B(6) of theFamily Proceedings Rules 1991 ) at the time of service upon that spouse of the first questionnaire (or as soon after service of the questionnaire as that rule permits and in any event before service of answers to it).”” “The ratio decidendi of Hildebrand, important though it has proved to be, relates only to the time at which copy documents thus obtained should be disclosed to the other spouse, namely no later than at the normal disclosure stage and thus in effect (albeit now subject to the prohibition against disclosure prior to the first appointment contained in rule 2.61B(6) of theFamily Proceedings Rules 1991 ) at the time of service upon that spouse of the first questionnaire (or as soon after service of the questionnaire as that rule permits and in any event before service of answers to it).””
“…we were taken to the observation of Eady J in White v Withers LLP[2009] 1 FLR 383 , para 8, that the mere receipt of documents by the solicitors from their client, and their continued retention in connection with the matrimonial proceedings, simply cannot give rise to a cause of action. In our view, that observation (which may in any event have been limited to a cause of action in damages) should be taken as applying only to the receipt of documents by solicitors from their client; further, it should not be taken as suggesting that the claimant could not recover the documents from the solicitors.”
“If a wife supplies such documents to her solicitor then the solicitor must not read them but must immediately seek to obtain all of them from the wife and must return them, and all copies (both hard and soft), to the husband's solicitor (if he has one). The husband's solicitor, who owes a high duty to the court, will read them and disclose those of them that are both admissible and relevant to the wife's claim, pursuant to the husband's duty of full and frank disclosure. If before that exercise has taken place the husband's solicitor is dis-instructed the solicitor must retain those documents pending a further order of the court.”
“I recognise the professional difficulties for any legal representative informed of the existence of illicitly obtained materials, as did His Honour Judge Horowitz QC, but this particular topic has been traversed at some length in Imerman v Tchenguiz and others[2010] EWCA Civ 908 sufficiently to give an adequate indication of the steps to be taken. The unlawfully obtained materials must be returned. The recipient’s duty to make any relevant disclosure arising from them within the proceedings is triggered. The ability of the wrongdoer, or their principal, to challenge the sufficiency of the disclosure, is confined to evidence of their memory of the contents of the materials but is admissible.”
“The leave of the court is required for any appeal from a decision of the court under this section.”
“39. Citation of [certain] cases provoked a debate between counsel and the court as to where the line was to be drawn between decisions which would be caught by the limitation on the right of appeal in the relevant section of the 1996 Act and decisions which would not. Males LJ posited the example of a case management decision about how a section 68 application should be dealt with. As I said at the time, that would seem to be an example of something which is part of the process of reaching a decision under section 68, so would be caught by the limitation on the right of appeal. Sir Geoffrey Vos MR suggested to Lord Pannick [counsel for the club] that a consequential decision on a section 68 application, for example as to costs, would also be caught by the limitation. 40. Lord Pannick made it clear that he was not inviting this court to lay down any general principles applicable in every case, but only to determine that this court had jurisdiction to hear the appeal from the publication judgment. I agree that it is not necessary for present purposes to determine the more difficult question whether case management decisions either side of the substantive decision under, say, section 67 or 68, for example as to how a hearing is to be conducted or as to costs, would be caught by the limitation in subsection (4) of each section. Whilst such case management decisions may be said to be part of the process of reaching the substantive decision, the question whether the substantive decision should be published is a distinct question separate from the decision itself. In the present case, the judge’s decision that the merits judgment and the publication judgment should be published was an application of common law principles as set out in the decision of this court in Department of Economic Policy and Development of the City of Moscow v Bankers Trust Co[2005] QB 207 . It was not a decision of the court under sections 24, 67 or 68 and was, therefore, not caught by the limitation on the right of appeal. In those circumstances, I am satisfied that this court has jurisdiction to hear this appeal . . .”
“Once the dust had settled, and following short written submissions on the issue from both parties, on10 April 2018 Sir David emailed the parties to make plain that he understood his authority to do anything further in the case expired at midnight on 23 March, which was why he had acted as he had done. He said that the fact that the defendant's advisers had been wholly unaware of the application was unfortunate. He went on to say that, although he could not give a ruling on the matter, it seemed to him thatCPR 52.3 (2) and paragraph 4.1 ofPractice Direction 52A meant that a judge could only grant permission at a hearing, and had no jurisdiction to do so after the hearing had concluded. He said that if this was right, his grant of permission was invalid, and that it would then be for the claimant to apply to the Court of Appeal for such permission.”
“21. In the present case, no element of the usual or proper practice was followed by the claimant's solicitors. An application for permission to appeal was not made at the handing down of the judgment. An application to adjourn that part of the hearing, so that the making of an application for permission could be considered, was also not made. When the application was made to the court it was made unilaterally, and the defendant had no idea at all that it had even been made. The defendant was never given the opportunity of making any submissions at all on the application for permission to appeal. 22. For all these reasons, as Sir David Eady himself suggested in his email of 10 April, his grant of permission to appeal was invalid. Accordingly, it is for this court to consider afresh whether or not permission to appeal should be granted.”
“In summary, my reasons for such a conclusion are: i) Contrary to the position of the appellant in MA Holdings [i.e. the George Wimpey case]…, Mr Gray was not a person who was substantively affected by Flaux J’s decision to set aside the freezing order or who had any substantive interest in it being set aside, such as to confer on him a right of appeal. Mr Gray had no personal, in the sense of financial or proprietary, interest in the freezing order remaining in place, or being set aside. He had no legal or equitable rights which were affected in any way by the decision. His only interest in the outcome of the set aside application was reputational. The fact that, pursuant to Flaux J’s order dated31 March 2015 , he was joined as a respondent to the proceedings “solely for the purposes of applying for permission to appeal” cannot per se confer on him “party” or “appellant” status. If McFarlane LJ was deciding at paragraph 41 of his judgment in Re W (a child) that, even in the absence of (a) a substantive interest in the outcome of an appeal and (b) an allegation that a court, in coming to a decision, had acted in breach of a witness’ article 8 private life rights or article 6 rights, a witness had sufficient status to appeal, I would, with respect, disagree with him. ii) The decisions in Cie-Noga SA and Re M (Children) (Judge's findings of fact: jurisdiction to appeal) supra clearly demonstrate that, normally, this court does not have jurisdiction to entertain an appeal against findings of fact which do not amount to a determination, order or judgment, unless they concern the issue upon which the determination of the whole case ultimately turns or are otherwise subject of a declaration within the order. Although this court (or indeed the first instance court) may have power to amend an order to include a declaration, since “clearly, such a declaration carries significant import in relation to finality of proceedings which should render them the rare exception rather than the rule. They should not be incorporated without the most careful judicial consideration as to consequences and effect.” see per Macur LJ in Re M (Children) (Judge's findings of fact: jurisdiction to appeal) at para 21. In the present case there is no justification for this court to permit the amendment of the order to include such a declaration at the suit of a non-party, in circumstances where neither of the actual parties to the litigation have sought to appeal. Nor is Mr Gray seeking to challenge the judge’s decision in its result, viz. whether the freezing order should be set aside and costs orders made against the claimants and Gibson Dunn. His only interest is in challenging findings of fact and reasons which led to those orders. iii) Nothing in Re W (a child) provides a route of appeal in respect of such matters. As Mr Kendrick submitted, article 8 provides procedural safeguards in terms of the right to a fair process: it does not provide a guarantee that a judge, having operated a fair process, will reach the correct conclusion on the substance of the case. The right to a fair process does not require that a litigant, let alone a witness, be afforded a right of appeal against a decision with which he disagrees on the substance. A court does not act unlawfully by getting the wrong answer on the merits. Such a conclusion is sensible: it is one thing to say that a witness whose professional reputation is at stake should not be criticised without warning and a fair opportunity to respond, but it would be quite another to allow a professional witness to appeal simply because he or she disagreed with a judge’s criticism of his or her evidence, professionalism or conduct. iv) I reject Mr Gray’s argument that he stands in some sort of special position because he was not a mere witness or third party, but was called by Flaux J in his supervisory capacity over officers of the court and that the judge made “final determinations” against Mr Gray as part of an inquisitorial process that the judge set in train and conducted. That mischaracterises the nature of the proceedings and Mr Gray’s involvement as a witness. As Mr Kendrick submitted, the proceedings were, and were only, the hearing of an application by Mr Boreh for particular relief against the claimants and Gibson Dunn. There was no inquiry or exercise of disciplinary jurisdiction against Mr Gray and no judgment or order was made in the exercise of the Court’s supervisory jurisdiction, as is apparent from the face of the Order appealed against.”
“But I accept Mr Kendrick’s submission that, in the circumstances, Mr Gray was not entitled to be told in advance precisely what the lines of cross-examination against him would be, or how every point would be argued. The gravamen of the allegations against him and the type of arguments which were being deployed by Mr Boreh to set aside the freezing order, moreover, were clearly spelt out in Mr Boreh’s skeleton argument dated and served on26 February 2015 shortly before the hearing began on2 March 2015 .”
“Nor am I impressed by the argument that Flaux J “made numerous findings of fact which were not pleaded or put to Mr Gray, in relation to which disclosure was not given, witnesses were not called and which Mr Gray had no adequate opportunity to meet”
“as a matter of discretion it would, in my judgment, be wholly inappropriate in the circumstances of this case to afford Mr Gray, who was not a party to the proceedings, a remedy by way of an appeal to this court to challenge the decision reached by Flaux J, after a full evidentiary hearing, that Mr Gray had been dishonest. Not only has no actual party to the proceedings any interest whatsoever in such an issue being litigated, since neither the claimants nor Gibson Dunn have sought to appeal Flaux J's interlocutory decision that the freezing order should be set aside, but, most importantly, the trial of the main action itself has concluded with the claimants' claim against Mr Boreh being dismissed. The litigation as between the claimants and Mr Boreh is over, the claimants having failed to obtain permission to appeal.”
“In short. it cannot be said that the Inspectors' inquiry "determined" the applicants' civil right to a good reputation, for the purposes of Article 6(1). or that its result was directly decisive for that right.”
“The court reiterates that article 6(1) obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision.”
“The Strasbourg court, when considering article 6, is not concerned with the merits of the decision of the domestic court that is under attack. It is concerned to see that the procedure has been fair. It requires that a judgment contains reasons that are sufficient to demonstrate that the essential issues that have been raised by the parties have been addressed by the domestic court and how those issues have been resolved. It does not seem to us that the Strasbourg jurisprudence goes further and requires a judgment to explain why one contention, or piece of evidence, has been preferred to another.”
“The Court also reiterates that art.8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence. The Court is of the opinion that in the instant case it can reasonably be supposed that the applicant could not have foreseen the consequences that the judgment of the High Court of Justice entailed for him. On the one hand, he was reportedly unaware of the proceedings. He had not been summoned to appear and was not a party to the proceedings, which in addition were solely aimed at determining the strict liability of the public administration concerned as a result of professional acts and omissions by public officials in the exercise of their duties. Furthermore, the complaint lodged against him by his colleague for psychological harassment in the workplace had been previously dismissed, and the colleague concerned had not taken further action against him. The Court also lays emphasis on the fact that the applicant was never charged with or proved to have committed any criminal offence. It follows that the disclosure of the applicant’s identity in the reasoning of the judgment of the High Court of Justice cannot be considered to be a foreseeable consequence of the applicant’s own doing.”
“Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following: a) Ensuring that the case in support of such adverse findings is adequately 'put' to the relevant witness(es), if necessary by recalling them to give further evidence; b) Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material; c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness.”
“This judgment should be seen by the profession and the family judiciary to be a particular, bespoke, response to a highly unusual combination of the following factors: a) a judge considering himself or herself to be driven to make highly critical findings against professional witnesses, where b) such findings have played no part in the case presented by any party during the proceedings, and where c) the judge has chosen not to raise the matters of criticism him/herself at any stage prior to judgment.”
“the strong caveat that I am attempting to attach to this judgment as to the highly unusual circumstances of this case and absence of any need, as I see it, for the profession and the judges to do anything to alter the approach to witnesses in general, and expert witnesses in particular.”
“It is obvious from the face of the FRN Privileged Documents that they are privileged and/or confidential in nature” and at (5) that: “Moreover, a substantial number of the FRN Privileged Documents were sent to Mr Andrew and Mr Burke QC, who are (and were at the time) experienced lawyers. It would have been obvious to any reasonable lawyer that the FRN Privileged Documents were privileged and/or confidential and that they had been improperly obtained.”
“Contrary to their professional and/or legal duties, Messrs Andrew and Burke QC made positive use of FRN Privileged Documents and, on occasion, distributed them to further persons.”
“Messrs Burke QC and Andrew were under a professional and/or a legal duty under English law, as soon as they became aware that the FRN Privileged Documents contained privileged and/or confidential information belonging to FRN, and in any event as soon as it became apparent (or ought reasonably to have become apparent) that the FRN Privileged Documents had been obtained improperly and/or through collusion (i) not to read any further FRN Privileged Documents; (ii) to return the FRN Privileged Documents to FRN and/or to instruct P&ID to do so (and to stop acting for P&ID (to the extent that Mr Burke QC was acting for P&ID at all) if it refused); and (iii) to notify FRN and the Tribunal that they had received the FRN Privileged Documents, and that those Documents appeared to have been obtained improperly and/or through collusion.”
“I do not agree that I was either entitled or obliged to take any of these steps, given the context in which I received the internal FRN documents referred to above. I did not believe (let alone know) that the documents had been obtained unlawfully. Rather, I understood that there was a practice within the Nigerian Government of sharing internal FRN documents voluntarily for innocent reasons and that the documents in question had been provided to P&ID in accordance with that practice. In those circumstances, I did not (and do not) consider that I was obliged, or even entitled, to reveal to the opposition in commercial arbitral proceedings documents that had been sent to me by my client. Nor did I consider myself obliged to enquire into and try to determine precisely how such documents had in fact come to be provided to P&ID, with a view to returning them to the other side.”
“The second sorry part of the story is P&ID’s own lawyers. As with the corrupted officials and legal advisors of FRN, so too was the integrity of Mr Andrew and Mr Burke compromised. They were offered life-changing sums of money, contingent upon success in the claim, which induced them to look past evidence of blatant corruption (most obviously in the form of the FRN Privileged Documents) in the hope of reaching their promised pots of gold. They did so at the expense of their professional obligations. It is a cautionary tale of why lawyers are not, subject to tightly-defined exceptions, permitted to take personal stakes in their own cases: their judgment was blinded by the prospect of riches beyond the dreams of avarice.”
“Mr Andrew was presented by P&ID to Sir Ross Cranston as a “thoroughly respectable, highly regarded and senior lawyer both solicitor and barrister”
“It follows that (i) P&ID has not put forward any actual first-hand evidence about why it came into possession of the FRN Privileged Documents; and (ii) Mr Andrew’s “best speculations” about why they might have done so must be rejected. They are nothing more than that and do not make sense on their own terms in any event: they are contrived and are falsely intended to mask the reality that it would have been obvious to those involved at the time that the Documents were being obtained as a result of corruption.”
“As a final point, FRN cross-examined Mr Andrew and Mr Burke at great length on the extent to which they did or did not investigate the provenance of the FRN PDs and what they did or did not know about them. It is accepted that they could have done more to investigate, and that questions may be asked as to whether they complied with their respective professional duties (although the Court may consider that this is not the right forum in which to make definitive findings in that regard).”
“[The parties] are entitled to finality in their litigation, within a reasonable time, and not to be subjected to further appeals at the suit of a non-party, with the consequent risk as to costs, merely on the basis of Mr Gray’s contention that the process was unfair to him as a witness and that the judge came to the wrong conclusion on the totality of the evidence.”
“In my judgment [the SDT] is the appropriate forum for Mr Gray to defend his professional reputation; a non-party appeal to this court is not an appropriate forum.”
“Finally, although every case depends on its own facts, I express my concern that to permit a non-party witness in a commercial case of this type to exercise an independent right of appeal, in which he is free to challenge adverse factual findings made against him by a first instance judge, merely on the grounds that such findings have reputational consequences for him, has the potential to lead to highly undesirable satellite litigation. That in my judgment would be likely to waste court resources contrary to the interests of other litigants and to bring the administration of justice into disrepute.”
“First, it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge’s reasoning process.”
“60. First, the policy underlying section 67(4) and other equivalent provisions has consistently been stated as being to avoid delay and expense… 62. Second, there are statements which suggest that a decision which is part of the process of reaching a final decision on a challenge to an award is a decision under section 67 or 68, as the case may be… 63. Third, there is no support in these cases for the view that only a decision finally disposing of a challenge to an award is capable of being a decision under section 67 or section 68. Nor is any distinction drawn between a decision that a party has lost the right to object and a decision that it has not done so.”
“30 …the question of whether an appeal against the Judge’s decision on the currency of the Costs Order falls within section 68(4) is a matter of statutory interpretation. This requires the court to identify the meaning of the words used in section 68(4) in context, having regard to the purpose and scheme of the Arbitration Act. 31. Applying that approach, there are a number of factors that point to a conclusion that the restriction in section 68(4) is not meant to apply to the Judge’s decision to make the Costs Order in sterling. 32 First, as explained in NIOC at para 60, the policy underlying section 67(4) and section 68(4) is to limit the potential for appeals to cause delay and expense in the resolution of disputes that have been referred to arbitration.”
“The Court also reiterates that art.8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions…”