“153. In our judgment, the decision of the Court of Appeal in Bultitude stands as binding authority that the test to be applied in the context of solicitors' disciplinary proceedings is the Twinsectra test as it was widely understood before Barlow Clowes, that is a test that includes the separate subjective element. The fact that the Privy Council in Barlow Clowes has subsequently placed a different interpretation on Twinsectra for the purposes of the accessory liability principle does not alter the substance of the test accepted in Bultitude and does not call for any departure from that test. …. 155. Accordingly, the tribunal in the present case should, in our judgment, have asked itself two questions when deciding the issue of dishonesty: first, whether Mr Bryant acted dishonestly by the ordinary standards of reasonable and honest people; and, secondly, whether he was aware that by those standards he was acting dishonestly.”
“I should add that the Court should be alert to the dangers of hindsight…… The court must be careful not to fall into the trap of being too wise after the event.”
“Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception. By family proceedings I mean proceedings so described in the Act of 1989, sections 105 and 8(3). Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings. The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow's Will Trusts [1964] 1 W.L.R. 451, 455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.’”
“I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities.”
“on 05/03/09 the investigators… intercepted an initial call… reporting on the criminal grenade tossing operation they had perpetrated the day before in the proximity of the 1st District”
“I withdraw my previous depositions and I admit that during the telephone conversation with [Mr Boreh] the subject of the recording you sent me, I did in fact report on the grenade attack we carried out on NOUGAPRIX camouflaging it through the 1st district…This was a first warning.”
“…the way in which the matter was presented in terms of the undertaking the defendant has given to the Commercial Court, at least before Hamblen J at the hearing on23 April 2013 was not entirely satisfactory. It is true that Hamblen J appears to have been told, and to have appreciated, that Mr Boreh was not accepting that he had any beneficial interest in the chateau in France or in the flat in Eaton Square, but it is the case that he was not told that in fact what had happened was that the defendant had divested himself of the interest that he had in Net Support, which in turn owned a substantial part of HDHL. I have considerable doubts as to whether if Hamblen J had been told what the true position was about the shareholding he would have regarded the undertaking being proffered as adequate.”
“one would expect such a conviction [for terrorism] to be relied upon as evidence of dishonesty and likely dissipation of assets, but no such conclusion can be drawn here, because the proceedings were such an obvious travesty of justice.”
“Including, for example, the mystifying observation that a given telephone conversation: ‘removed any shadow of a doubt’ about Mr Boreh and others being involved in a terrorist attack ‘because they discussed the purchase of scrap metal (meaning grenades).’”
“there is more than reasonable doubt regarding the absence of political or ideological motivations in the request.”
“…even if the Claimants do not wish to rely upon the convictions, they know that Mr Boreh challenges them as being obviously deficient on their face, and that he relies upon them as important evidence of a politically motivated campaign against him.”
“On the strength of the evidence, including recorded phone conversations, Mr Boreh was found guilty in absentia and given a prison term”
“…although the Spanish Court refused to extradite Mr Boreh, that does not mean that his conviction is unsound. Indeed, given that Mr Boreh has admitted to supporting at least one Somali warlord, one Mohammed Deylaf and has therefore supported violent acts in Somalia, it cannot be said to be inconceivable that he would not do the same in Djibouti, particularly given his stated animosity towards the Government there.”
“...it contains a number of notes and comments. We will of course work on reviewing issues such as date/time inconsistencies.”
“it appears that the conversations (between the brothers and Boreh) took place before the grenade attacks. Unless I am missing something, this would be a very large discrepancy”
“Many people would not have checked and disaster would most certainly have followed.”
“I’ve spoken with Khawar [Qureshi] and we agree that having reviewed the evidence, we can get away with the date error. It is only in the judgment, which is awful anyway, and not in the evidence.”
“Aurelie, Debbie, we also need one of you to work with the security guy-we need a statement about the people’s palace attack. I think it is the Presidential Palace.”
“It turned out we didn’t really need to say much. The extradition request did not labour the point, so changing the date by one date was all I had to do.”
“Avoid at all costs for Boreh to be released and passport given back”
“On the assumption that all the documents are consistent then the change of date hopefully will not stir matters up too much-however this is highly likely.”
“Why don’t we make this the first thing we say in the Interpol letter? That’s the real audience.”
“Going to fudge the error of the date, it doesn’t affect the underlying evidence”
“if that is the case, then we would need to resubmit it and ask for a retrial and that would be a long winded process. Avoid at all costs for Boreh to be released and passport given back. PG has been discussing the backups with QC i.e. tax case and potential retrial as a back up in the event that the first request goes wrong”
“What we can do is amend our extradition request to say that the judgment is good but that we are seeking his return for a retrial. That will then get rid of any issues with fairness over the trial.”
“PG notes that we want to refer to the same documents in the UK case. We are going to put the extradition request in the English proceedings.”
“the severity of his crimes” because he had said the terrorism offences would lead to a sentence of 6 months to 2 years, possibly suspended and were based on mere suspicions that he had instigated the terrorist acts. Mr Gray stated that this was: “wrong, in Djibouti acts of terrorism are punishable by way of imprisonment. Mr Boreh was convicted on23 June 2010 and sentenced to 15 years imprisonment.”
“although the Spanish Court refused to extradite Mr Boreh, that does not mean that his conviction is unsound.”
“not least in the face of the evidence which led to Mr Boreh’s conviction in Djibouti”
“Mindful of the serious nature of these matters, I have provided an English language version of the extradition request submitted by the Djibouti Authorities to the UAE [which he then exhibits]. This evidence in support is at the very least reflective of a case to be answered by Mr Boreh.”
“It is Djibouti’s case that these conversations refer to the successful attack on4 March 2009 ”
“was reporting on the grenade attack at Nougaprix supermarket”
“The charges against [Mr Boreh] are not trumped up. [Mr Boreh] was convicted in absentia because he refused to attend court. The attempt to extradite [Mr Boreh] was not misconceived and [Mr Boreh’s] Spanish lawyers seriously misled the court, as explained in paras 163 of Peter Gray’s Third Affidavit. [Mr Boreh] has been arrested in Dubai and the Djibouti authorities have applied for his extradition. Such a request does not require supporting evidence. Exceptionally, because of the serious allegations that have been made against Djibouti the Djibouti authorities have submitted supporting evidence”
“MR QURESHI But what we have is Mohamed Abdillahi saying, and Mohammed is the cousin of Mr Boreh: "Boss, last night the act was completed in the first district. In the upcoming days similar acts will be intensified and other acts will be performed.” “Was the act heard by the people or have you done nothing concrete?” “Of course people heard it and there was a deep resonance. I assure up the same act will occur tonight, God willing.”
"We're doing well, our activities are running smoothly. Last night we bought the scrap metal at Mahamoud Harbi Square, and the first district, the matter was concluded, went well. Tonight we're counting on concluding the same act.” “Did the people hear our action?” “Yes, indeed a judicial inquiry has been initiated."
“MR JUSTICE FLAUX: It's a bit difficult, assuming it was Mr Boreh, why on earth would he be interested in the --because he's obviously not in Djibouti, he's presumably in Dubai, so doesn't know what's going on, so he's asking these two brothers effectively what has been the reaction to what has happened, and have the public reacted and comments about how is it going to effect the westerners and so forth, and Place Menelik is presumably where the president's palace is. MR QURESHI: It's where westerners congregate. MR JUSTICE FLAUX: But it's difficult to see how the gates of a villa have anything to do with that, really. Unless we're all going to go and admire the gates or something. MR QURESHI: My Lord, a common sense meeting of the minds might take that view…”
“MR JUSTICE FLAUX: I don't have to decide today whether Mr Boreh has participated in terrorist acts. All you're saying is that you at least have an arguable case that part of your case against Mr Boreh is that he has participated in terrorist acts. MR QURESHI: My Lord, I go further than that. I say it's simply outrageous for the defendant to maintain a position which of course suits him, and he articulates this through those he has instructed, that somehow the Djiboutian government is pursuing a vendetta against him which is reflected in trumped up charges. I say it's outrageous, because the persistent position adopted by the defendant to criticise a foreign friendly state, which I hasten to add in May was being told that English business, by a minister for Africa, here in London, was being encouraged to do business with Djibouti because of the importance of the port, that somehow this foreign state has taken it upon itself to pursue a vendetta against Mr Boreh, who was just going about his ordinary business, pursuing his commercial interests, and the fact that he was placed in a position to pursue his commercial interests didn't create any form of conflict of interest, and so the terrorism charge is trumped up. The pursuit of his companies which never paid any tax, and he never paid any tax, is trumped up, even though that started in 2005, is simply, with respect untenable. It can work up to a point as a smokescreen and as a diversion, but we take strong objection, because to impugn a foreign state in the way that Mr Boreh has done without any evidence whatsoever is a matter than we say, it's incumbent on us to ensure that this court is fully aware of the fallacy of the defendant's position, and that's why we put the evidence in, my Lord.”
“MR BUTCHER It starts in circumstances where it has been decided that Mr Boreh is going to be tried in absentia, and that he will not be permitted the representation of his choice, because he had chosen a French advocate to represent him, who had been refused a visa, effectively. MR JUSTICE FLAUX: But he did have a local lawyer, though; didn't he? MR BUTCHER: Yes, but he hadn't actually been instructed. Then what one sees is at page -- and I'm going to come to the material which we have now seen very belatedly which underlies this, which only increases the problems, the concerns about this. Your Lordship sees on page 1288 that, six paragraphs down, I think: “the national police detectives that took over the judicial investigation already launched into the attack, tapped at first, a telephone call, and that was from Mohamed, alias "the boss," to Mr Boreh, who was escaping abroad, during which it is said he summarised a criminal act. In the first call, he told the persons he was speaking to, Mr Boreh, that a similar action would be carried out that evening and that it is a success by indicating to Mahdi, his brothers and others, wanted to talk to him to provide the details. On the same day, 5 March, there were conversations Mohamed Abdillahi and Mr Boreh. “This telephone conversation, tapped by the police, removed any shadow of doubt about the involvement of Mr Mohamed and his brother Mahdi in a operation orchestrated from the outside, consisting of a terrorist act because they discussed the purchase of scrap metal meaning grenade and the commission of a similar act this evening during the conversation." Then it's said that that was on the 5th, then it's said: "On the evening of 8 March at about 7 pm, another grenade explosion went off at the national police station." So that's not on the same day. It says that the explosive device that was launched over the police wall was caused by a detonation. Then it says that there was a search of the home of Mr Mahdi Abdillahi, which led to the discovery of important political documents including pamphlets intended to incite tribal hatred distributed in the town by the members of the ARCHE…”
“MR BUTCHER Now if you would now look at the -- well, your Lordship has seen the telephone tap. MR JUSTICE FLAUX: Yes, and that's where? MR BUTCHER: Which is at 5169 and 5172 in the translation. MR JUSTICE FLAUX: 5169 in the French that is, yes. MR BUTCHER: There's this talk about – MR JUSTICE FLAUX: In Somalian, yes. MR BUTCHER: Yes. It was translated into French and then into this. Your Lordship will have seen that. There is talk about acts, "a similar act is expected tonight," that's how it's translated, and there is at the end towards the end of 5173, there's talk about: "Let the struggle continue. As soon as the people have heard the acts well I will increase the gestures on my side." That is all that there is in relation to that telephone tap, nothing which identifies this as being a grenade attack or anything of the sort. MR JUSTICE FLAUX: But this is Mr Mahdi, right? This is the conversation between Mr Boreh and Mr Mahdi? MR BUTCHER: Yes. MR JUSTICE FLAUX: And what is being said by the claimants in their extradition documents is that although there is a reference to ferraille, to scrap metal, that that clearly means grenades, because if you simply read it through on the basis it's scrap metal, and there's been an affair which has been executed and tonight we're going to execute the same act, did the westerners hear it, the reverberations and the echos and so forth, it's clearly a reference to the explosions. That's what's said. MR BUTCHER: That's what's said. If your Lordship then sees the – MR JUSTICE FLAUX: One has to inject a modicum of common sense into interpreting what's being discussed. MR BUTCHER: Indeed, one does. MR JUSTICE FLAUX: Leaving to one side whether your client's involved in this or not, whoever these people were who were speaking to one another, even if they think the line's not being tapped, it's extremely unlikely they're going to admit directly over the telephone, "Well actually I bought a hand grenade last night and set it off in the square", much more likely to say, "I bought some scrap metal, and the act we were going to do, we did that act and we're going to do another one tonight," and the response comes back, "Well that's all very interesting, but has it had an effect on the westerners, because that's what we really want to do, is to make the westerners understand, by having explosions in Djibouti that perhaps, you know, the United States and the French and so forth will do more to bring pressure to bear on the government."”
“Mr Butcher, I can't decide these things, but the fact of the matter is that I am not the slightest surprised that police in Djibouti were sceptical of this explanation. When you look at the telephone -- if you were looking at it from the point of view of an English criminal trial, which obviously is a very different creature from civil law systems, wherever they are, but the fact of the matter is if there were the evidence of that telephone tap, the relevant defendant, be it Mr Boreh or anybody else, would be cross-examined up hill and down dale about the fact that what was really being talked about was grenades. It had nothing to do with scrap metal, it's complete nonsense. You don't have resonating acts with scrap metal unless you are hurling it around the square or something. No doubt that point might have been taken. It's nothing to do with distribution of political tracts. That sort of evidence would be challenged over and over again. The defendant could say, as they very often do, as you know, maintain the story till the bitter end, but at the end of the day it would be a matter for the jury as to whether they believed it or not. I suspect they wouldn't believe it.”
“Fourth, it seems to me that there is, on the basis of the telephone transcript of conversations between Mr Boreh and the Abdillahi brothers, an arguable case that the defendant was involved in and directing terrorist acts in Djibouti. Whilst it is undoubtedly right that somebody who has acted as a terrorist would not necessarily be somebody who would dissipate his assets, in view of all the other evidence, it does seem to me the court is entitled to take a common sense view, and to take the view that somebody who is at least arguably engaged in terrorism is well able and likely to divert his assets to make himself judgment-proof. So it does seem to me that there is a real risk of dissipation here.”
“Please send this to Djama [Ali] and make sure it goes out. Make sure in addition it quotes the judge yesterday on the terrorism in which he says there is a good arguable case on this.”
“10. Of course if the calls took place on 4 March then a completely different complexion could be placed upon those calls. The point that was being made by Mr Boreh that the only judicial inquiry that had ever taken place was in relation to leaflets would have considerable force. Although a rather half-hearted attempt has been made by the claimants to suggest that there may have been a grenade attack on 3 March, the fact of the matter is that at the time when the police questioned the Abdillahi brothers later in March 2009 it was only ever suggested by the police that there had been two grenade and terrorist attacks, one on the 4 March, that is to say the Nougaprix one, and one on the 8 March which was the attack, I think, on the police station. It follows that whatever it was that was being referred to as having taken place "last night" in a call that took place at lunchtime on 4 March cannot have been the Nougaprix attack; and there is no or no satisfactory evidence that it was some unknown grenade attack which had taken place on 3 March. 11. So it would appear, on the basis of that material, that this court was misled on the occasion of granting the freezing injunction… 14. I am quite satisfied that I was misled as to the dating of the telephone transcripts; and the paragraph in my judgment that I read out could not have been said unless I had thought that the calls had taken place on 5 March following the Nougaprix attack rather than on 4 March before the Nougaprix attack. So that my judgment cannot and should not be used to support a case that Mr Boreh had arguably taken part in terrorist activities.”
“MR JUSTICE FLAUX: I'm sorry, Mr Gray, I want to give you a chance because this is very, very serious, but the thing I do not understand about your evidence is what on earth you were doing. What were you doing, doing your emails on your Blackberry or something? You are a partner in a city firm. You sat through a hearing in front of me for two days, during the course of which this was raised by both counsel, and it went to the risk of dissipation, because that is the point that I made to Mr Qureshi, and he said "Well, it goes further than that, because it showed how outrageous it was to suggest that this was all politically motivated". I just wonder what on earth you were doing while all this was happening? A. Well, my Lord, I can't remember exactly what I was doing. I did send -- I know I did send a few emails in the afternoon. I possibly shouldn't have done that. It seemed to me early on in the hearing that it was going the right way, and there were numerous things that a favourable judgment would have meant we had to do very quickly, such as taking steps in other jurisdictions, and I know that my thoughts turned to that early and I know that -- as I say, I did send a few emails, and my understanding -- I appreciate what's said about leading counsel and I don't say that -- and I don't make any allegation against him, but my understanding of this whole extradition process was that he did understand what was going on. He said to me, when -- before we even embarked upon this exercise, when we were thinking who should do it, because, as counsel for Mr Boreh has said, I have never done an extradition request. He put it to me. I have never done an extradition request, I don't really know what one looks like; and leading counsel said to me that he was familiar with these, that this was something that we should play a role in and not just leave it with Al Tamimi. So from that period onwards to the hearing, I understood -- I may have been wrong, but I understood that he believed that this date change was significant. I had a long conversation with him about it. He had all the material. The only thing I changed was the date, and I thought he agreed with me that there was still an arguable case and that this really wasn't as important as we had first thought. I fully appreciate the effect it has on the conviction, but this is, as it were, taking the case and looking at it afresh, and its importance diminished in my mind. The date issue diminished in my mind. I was thinking far more of the suspicious language. To me, that was the real thing. What was "scrap metal" about? There was just no -- it didn't seem to me to be an innocent explanation I had heard for that. It has been said, well, that meant leaflets, but that's not what the Somali says, the two are not the same. And why not talk about leaflets if that's what you are talking about? Well, they are inciting…genocide.”
“An English Court has already held that there is at least a good arguable case that Mr Boreh committed the crimes of which he is accused. In particular it noted the contents of the recorded telephone transcripts…”
“an English judge…concluded…that there is a good arguable case against Mr Boreh…In the circumstances, it would be a matter of great concern for Interpol to reach a decision that appeared to contradict a ruling of the English courts.”
“This is v good. See comments”
“yes-important to set out that they were misleading and that this fact was noted by the judge.”
“An English judge reviewed the evidence as part of an injunction application, after it was raised by the defendant, who claimed the whole thing was fabricated/politically motivated. The judge concluded there was indeed a good arguable case against Mr Boreh. … It is therefore a matter of great surprise that Interpol have decided to act in this way, given that a) a court has already determined there is a case to answer and b) it is before the courts of another country. … In all the circumstances, I find it surprising that Interpol appear to be implicitly interfering with a judicial process, particularly given the severity of the offence.”
“Moreover, in the course of a civil proceeding initiated [in] the United Kingdom in 2012 by the Republic of Djibouti against Mr. Abdourahman Mohamed Mahamoud Boreh for abuse of office, Mr. Abdourahman Mohamed Mahamoud Boreh’s attorney sought to maintain that the Extradition Request was without merit and irregular. In September 2013, the judge of the London High Court of Justice rejected these arguments finding on the contrary that given the Extradition Request, it was possible to maintain that Mr. Abdourahman Mohamed Mahamoud Boreh was a terrorist.”
“Well there’s a greater likelihood of winning it but putting the maths to one side, that’s not the case when it comes to the criminal actions and I think potentially that’s more problematic and they appear to be getting traction and I don’t think the judge in the High Court in London did you any favours in the way that he approached that matter and he made life considerably harder for you. I don’t know the outcome because it hasn’t happened yet of the Interpol meeting on 30th, I don’t think that matters either to be honest because the Riyadh Convention means that the UAE can extradite you regardless of that and they’ve now ratified the Riyadh Convention. Will they, won’t they, I don’t know, it seems to be tipped in favour and I think that’s problematic and once that action has taken place I would be concerned if I was you, genuinely concerned by what the Department of Justice and the Homeland Security office might do in the US. Mr Boreh: Will do? To me? Mr Everett-Heath: That is problematic because once they start putting embargoes and bounds on you then you can’t play with any bank Mr Boreh: I don’t deal with any banks Mr Everett-Heath All your money is forced out of the system Mr Boreh: You have already frozen all of my accounts Mr Everett-Heath: You can’t undo that… [Text omitted.] … All I am saying is that if you are jailed in Djibouti if the Department of Justice, Homeland Security puts bounds on your activities Mr Boreh: Who? Mr Everett-Heath: Homeland Security of the Department of Justice … Mr Everett-Heath… So to go back to the beginning if there is room to reach settlement now is a good time to do it because some things will be irreversible later…”
“Mr Boreh: So I sell all my houses; I sell all my assets; I give you my shares; then what do I gain? Mr Everett-Heath: You walk on. You don’t look over your shoulder. It’s finished. Mr Boreh: Walk on as a poor man. Mr Everett-Heath: Not as a poor man. You still have the relationship with BAT, you have income, you have other funds; life carries on. Mr Boreh, between you and me, I find you am impressive and effective man, I have full confidence you can rebuild your life [laughing]. Some people I would be less sure of; you will be fine and you get a chance to have a life again which you won’t have if you’re in a jail in Djibouti. … But you’ll be less unhappy because the whole thing is over. You and your children can get on with your life and carry on with things. I stress as I said before this is not about justice this is about settlement. Justice is available to you in the criminal actions and the civil actions if you want to trust in that. This is a way of avoiding that; not taking that chance; starting your life again; giving them [i.e. his children] a fair chance in life.”
“to get back to me re my questions yesterday please? Ie how we can now accept the date is wrong and why we thought it was right in the first place?”
“The recordings do still make sense in that [Mohamed Abdillahi] and Boreh are planning the attacks which occurred on the following days (‘tomorrow we’ll do it again’), To restore full credibility, however, it is key that we find evidence on what happened on March 3. if the Djiboutian court-which relied on the transcripts-got the date wrong, it seems even more important to offer retrial.”
“What did we say to the English Court? Extradition Request was part of that”
“Did we anywhere explain why we put the correct date in the extradition (Thank God!) but why the transcript one was wrong?”
“I’ve looked through all this again. What you need to do is look at your old emails. I can see we originally thought it was 5 March and then changed it to 4. This was between mid-August and us finishing the extradition. You are on all the emails I have looked up, but I don't have time to go through them. Please re-read the extradition requests in full, as well as sending to me. I actually don't see the date issue as a big deal. The extradition was accurate but I can see we didn't mention the date disparity in court, otherwise we were satisfied it was ok. … Was Nougaprix also 4 March? If so, it took place a few hours after the call”
“The whole thing in the Byrne letter about dates is bollocks-we identified it as 4 March in the extradition request. The date on the transcripts was wrong but we dealt with that. This is all a storm in a teacup. I am still getting all the info though.”
“I do not think that we ever developed on the date discrepancy nor try to explain why the date of the transcripts (and consequently the date referred to in the Djiboutian decision) was different from that of the extradition request). As this had not been directly challenged by Boreh, it somehow would have been shooting ourselves in the foot”
“So you know re the terrorism letter, when we went back to the files we realised they were being misleading. The extradition refers to the correct date which is 4 March, it does still all make sense. There is a document where it’s showing wrongly, we think in error, and that error was repeated in the Djibouti court documents. None of this changes the facts, and none of us relied on those court documents. We are double checking various other issues including the language points, but overall we are fairly comfortable about it.”
“We were not aware of the dating issue. … THIS IS GOING TO BE PROBLEMATIC AS THEY ARE LIKELY TO WRITE TO THE JUDGE”
“We did know about the dating issue. I recall we took the view as set out in our first letter – it was an error, but not one relied upon. The extradition request uses the correct dates.”
“But even if there were such interpretation, Mr Boreh was not prosecuted on the basis of this after-invented, alternative case and it is not the ground of his conviction. The case actually brought against him was false”
“We note your denial that the court was deliberately misled as to the date of the conversation, but you still have not answered our question as to whether you, your clients or your counsel were aware of that error and its significance (i) at the time when the extradition was drafted or (ii) at the time of the hearing before Mr Justice Flaux. Please now do so.”
“So the question is what next? The fact is that there is nothing to correct in my affidavit. I am referring to the evidence and not to the conviction itself at 163.6 and I go on to say at 164 that this evidence in support is at the very least reflective of a case to be answered by Mr Boreh… The only question is how we address the fact you didn’t correct Flaux’s obvious misunderstanding. I can’t remember it happening but obviously it did, and I guess we say that you were unaware of the error and we did not notice it at the time… We can’t concede this one even if we wanted to.”
“1: I will review all the correspondence and see where the letter can be sent. We really do not want this issue to be considered by Flaux J once more, because we have pretty much got what we wanted/ were likely to get from the freezing order variation application. 2: I have no recollection of the date issue. We discussed at length the need for accuracy in the transcription translation. It is obvious the Djibouti authorities messed up in terms of translation typo. WAY FORWARD A. We will have to send a letter making it clear it was an error, not material. The evidence implicates Boreh, no attempt to mislead. B. We can hopefully avoid this being ventilated in open court because it's bound to generate adverse comment from the Judge.”
“… We accept that the tape dating issue is an unfortunate error – it is certainly nothing more than that, and we are grateful to you for drawing it to our attention It is after examining the terrorism documents in the light of [the Byrne letter of4 September 2014 ] that Mr..Gray… and Leading Counsel became aware of an understood the nature of the tape dating issue and why we maintain that a proper reading of the transcript in fact supports the position that the conversation referred to the attack which took place later that day.”
“Neither Leading Counsel nor Mr Peter Gray were alive to the issue of the 4/5 March date discrepancy at the September 2013 hearing. They have re-examined the terrorism documents in light of your allegations and maintain that a proper reading of the transcript in fact supports the position that the conversation referred to the attack which took place later that day…”
“I think we’re on thin ice if we say we didn’t ever know about this from the beginning until their letter [of4 September 2014 ]. Remember, they know we’ve been to see Interpol lots of times. I think it’s better we say we were not alive to the distinction at the hearing, which is true. I’ve re-read the transcript, and it’s only Butcher who cites the wrong date…”
“Well, I don't think that, no. We were only answering a question -- as I said, we were only answering the question on the hearing. I accept it was a very evasive letter, but I thought it was acceptably evasive because -- and that's why -- but I realised it was important, and that's why I was very careful to run it past leading counsel. This is not the sort of letter that I would have sent out by myself, as it were, because I recognised that it was important.”
“You have now told us that Mr Gray and leading counsel were not aware of the misdating and we accept that.”
“Please provide the same confirmation in respect of the other lawyers within your firm instructed on this matter. (We ask in particular because we believe your firm may have been involved in preparing the Dubai extradition request which contains the correct dates of the telephone calls). We note, however, that your letter studiously avoids addressing whether your clients knew that the transcripts were falsely dated and were therefore misleading. We can only infer from your continued silence that they did.”
"Sana and Aurelie have been asked to complete what they can with the affidavit and asked to go back through their emails and see if there is an explanation for how we got all the right dates in the extradition request but mischaracterised the dates for the freezer."
“This is a waste of time. Please do not do that. All you are likely to find is that on date X we realised the error, addressed it and moved on. Is that something you think is appropriate to admit to the court? Would you like me to publicly apportion blame on other lawyers? All you are doing is falling into their trap. And it would not end there. The fact is we were not alive to it at the hearing, we did not mean to mislead the court and we are addressing it that way.”
“We just need to know what happened. So far we have not answered Byrne’s two fundamental questions: 1) when did we know; and 2) how is it that we got the dates right for the extradition, but used other dates for the Freezer? If the realization occurred before evidence was served for the Freezer, or before the Freezer hearing, or before Byrne’s letter of September 2014, then yes I do think that is something we have to admit to the Court. Obviously no one meant to mislead the court, but it has turned out we have. We can either find out what happened now, or we can do it in a few weeks after they’ve applied to lift the Freezer…”
“without prejudice to the position that the application [for affidavits] is both unnecessary and diversionary, in order to ensure that the Court is fully appraised of all facts and matters underpinning the serious allegations levelled in the application, I have set out matters below.”
“38. Although they no longer suggest that leading counsel or I intended to mislead the court, the defendants contend, without any evidence, that our clients must have done. As I set out below, there was no intention to mislead the court by our clients or this firm. If this court was misled, I apologise. 39. Byrne have asked who knew of the dating error within the firm and when. Without any way waiving privilege, it is correct we provided advice regarding the extradition request. This was one of a number of parallel workstreams. The internal work of the firm is, of course, privileged. Given the enormous volume of internal email traffic and the number of lawyers involved in the overall matter, it would be a significant task to work out who exactly knew what and when. If that exercise was undertaken I do not believe the information would have any utility in this matter. I am confident in the event no lawyer in the team intended to mislead either this court or the Dubai courts. 40. In short, the error was in my affidavit and I take responsibility for its contents. I repeat that the error was inadvertent and I sincerely apologise to the Court if that error caused it to be misled. 41. I should also address a further accusation made by Byrne & Co, namely that the claimants themselves sought to mislead the court. That is simply wrong. They played no role in the drafting of my affidavit. We have raised the transcript dating error issue with them. Without waiving privilege, I understand they did not spot the error until it was referred to them. It was then pointed out it was widely known there had been an explosion on 3 March ... that being a period of significant instability. They believe Boreh was seeking to destabilise Djibouti in order to then return and play the saviour. Of course, the court does not need to determine whether that is correct or not.”
“It has rightly been said that a cocktail of truth, falsity and evasion is a more powerful instrument of deception than undiluted falsehood. It is also difficult to detect.”
“Well it looks like you were right.”
“Obviously I will have to fall on my sword re being told about the date discrepancy and take the heat for it”
“I hear we got stuffed. Let’s not speak today. Let’s sleep on it and speak tomorrow.”
“It turns out I was told about the error in August. I completely forgot about it, in the midst of so much. However I can see I will be accused of all kinds of things.”
“shooting ourselves in the foot” and he had responded by telling her it was a “massive issue” (see [152] to [154] above). What this text demonstrates, as Mr Kendrick QC put it is that he had not in fact ever told Mr Qureshi QC the full implications of the misdating issue otherwise it would have been worded completely differently, not least because if Mr Qureshi QC had been in on Mr Gray’s strategy it would have said: “We will be accused etc.”
“a half-hearted apology” in circumstances where: “the writing was on the wall”
“Am in Ct on another matter. Speak at 4pm. Yes he did not like the freezing order app and hit us exactly as I expected. Terrorism.. needs to be considered v carefully”
“Yes but what choice did we have. We agreed the strategy and it didn’t work. Now we have to think v carefully about our next move.”
“Freezing order. He didn’t like parts of what we were asking for. Let’s speak later or tomorrow 11 am London time.”
“freezing order. He did exactly what I felt he might. Terrorism…That needs to be the subject of considered response.”
“Even more axiomatically, there is a separate duty arising at all times not to mislead the Court and, should the Court have been inadvertently misled, to correct that as soon as possible. These duties are prominent in the Solicitor's Code of Conduct.”
“…the general proposition which I think has been established, that on an ex parte application uberrima fides is required, and unless that can be established, if there is anything like deception practised on the Court, the Court ought not to go into the merits of the case, but simply say ‘We will not listen to your application because of what you have done’.”
“If of course it can be established that there has been bad faith, either on behalf of the parties or their legal advisers, that will be a most material matter in considering whether injunctions which have been granted should be discharged, and, if they are discharged, whether it is appropriate in the circumstances to re-grant injunctions either in the same terms or in similar terms.”
“106. In a case of this kind, where bad faith by the Claimants has been established, the court must be astute to ensure that the Claimants are deprived of any advantages they may have derived from their serious breaches of duty to the Court. 107. I accept that Mr Bard is entitled to ask me to consider as against that principle, the fact that the defendants have admitted fraud and that a remedy in damages will be impossible if they have dissipated their assets. I accept also that there is evidence before the court that there is a good arguable case against the defendants and evidence that they may indeed dissipate their assets before judgment. But this evidence cannot outweigh the necessity to demonstrate to the Claimants (and other applicants for without notice interim orders) the gravity of their duty of disclosure and the consequences of ignoring them. 108. I accept also that the rules I have described must not be used as an instrument of injustice. I do not, however, think that it would be unjust to deprive the Claimants of the relief that they have obtained in flagrant breach of their obligations of absolute good faith. I take into account in this respect that, throughout this application, the claimants have sought to maintain and advance what I have decided to be a deliberately false and dishonest case.”
“As with all discretionary considerations, much depends on the facts. The more serious or culpable the non-disclosure, the more likely the Court is to set its order aside and not renew it, however prejudicial the consequences. The stronger the case for the order sought and the less serious or culpable the non-disclosure, the more likely it is that the Court may be persuaded to continue or re-grant the order originally obtained. In complicated cases it may be just to allow some margin of error. It is often easier to spot what should have been disclosed in retrospect, and after argument from those alleging non-disclosure, than it was at the time when the question of disclosure first arose.”
“Mr. Hamblen relies upon three decisions of the Court of Appeal in which claimants have been deprived of equitable relief because of their misconduct in connection with the presentation of their case in the course of the litigation: Armstrong v Sheppard & Short Ltd.[1959] 2 QB 384 ; J Willis & Son v Willis[1986] 1 EGLR 62 ; and Gonthier v Orange Contract Scaffolding Ltd[2003] EWCA Civ 873 . These authorities are examples of cases in which the court regarded attempts to mislead the courts as presenting good grounds for refusing equitable relief, and show that this is so not only where the purpose is to create a false case but where it is to bolster the truth with fabricated evidence: see Gonthier v Orange Contract Scaffolding Ltd especially at para 36. Further, as is clear from JWillis & Son v Willis, such misconduct can deprive a party of equitable relief notwithstanding the trickery was detected and therefore not pursued to the trial of the claim. However, in all these cases the misconduct was by way of deception in the course of litigation directed to securing equitable relief…”
“159. It was common ground that the scope of the application of the "unclean hands" doctrine is limited. To paraphrase the words of Lord Chief Baron Eyre in Dering v Earl of Winchelsea (1787) 1 Cox 318 at 319 the misconduct or impropriety of the claimant must have "an immediate and necessary relation to the equity sued for". That limitation has been expressed in different ways over the years in cases and textbooks. Recently in Fiona Trust & Holding Corporation and others v Yuri Privalov and others[2008] EWHC 1748 (Comm) Andrew Smith J noted that there are some authorities[the three Court of Appeal cases he referred to] in which the court regarded attempts to mislead it as presenting good grounds for refusing equitable relief, not only where the purpose is to create a false case but also where it is to bolster the truth with fabricated evidence. But the cases noted by him were ones where the misconduct was by way of deception in the course of the very litigation directed to securing the equitable relief. Spry: Principles of Equitable Remedies 8th edition(2010)suggests that it must be shown that the claimant is seeking "to derive advantage from his dishonest conduct in so direct a manner that it is considered to be unjust to grant him relief". Ultimately in each case it is a matter of assessment by the judge, who has to examine all the relevant factors in the case before him to see if the misconduct of the claimant is sufficient to warrant a refusal of the relief sought. 163. In my view it is vital to identify carefully the two elements with which we are concerned; that is "the equity sued for" and "the misconduct" said to make RBS' hands unclean. The "equity sued for" is an injunction to restrain Highland and Scott Law from continuing to be in breach of (or in Scott Law's case refusing to be bound by) the jurisdiction clause in the FLD by bringing proceedings in which it is alleged that RBS had "knowingly misrepresented material facts and withheld critical information from [Highland] as part of [RBS'] scheme to acquire the 36 Loans at severely understated values". The misconduct alleged against RBS, through SG, falls into two Stages. First, there is the fact that RBS did not accept without challenge the judge's findings made in the Quantum judgment about the matters surrounding the transfer of the 36 Loans, the BWIC and the subsequent suppression of facts until the Quantum trial itself. Secondly, the fact of the lies of SG in the 2012 trial in trying to challenge the findings that the judge had made in his Quantum judgment. 164. As I read [185] – [192] of the 2012 judgment, Burton J accepted that if the misconduct of RBS (through SG) had ended with an acceptance of the conclusions made in the Quantum trial, then he would not have regarded the misconduct of RBS as being sufficiently immediate and having the necessary relation to the equity sued for to fall foul of the "unclean hands" doctrine. Thus, at the start of the 2012 trial, even though RBS might have pleaded a challenge to the various findings Burton J had made in the Quantum trial, if RBS had then accepted them, the judge would have held that RBS had not come to court with "unclean hands" because, to continue the metaphor, RBS would have "washed them". Therefore, it seems, the judge would have rejected Highland/Scott Law's "unclean hands" defence to RBS' claim for an anti-suit injunction. 165. But what tipped the balance the other way was the action of RBS in continuing to challenge four principal findings of fact made by Burton J in the Quantum trial, which I have summarised at [58] above, particularly through the evidence of SG in the 2012 trial, Burton J's reaffirmation of his Quantum judgment findings (save for the more nuanced finding in relation to motivation for termination) and his conclusion that SG had lied again. Does the fact that RBS persisted in challenging the judge's findings of fact in his Quantum judgment and its insistence that there had been no concealment of "The Suppressed Fact" constitute misconduct and, if so, does it have the necessary immediate and close relationship to the particular anti-suit injunction claimed? In my view the answer to both questions is "yes" and I shall briefly explain why.”
“Ordinarily this court should not distinguish between the litigant himself and his advisors. There are good reasons why the court should not: first if anyone is to suffer for the failure of the solicitor it is better that it be the client than another party to the litigation; secondly, the disgruntled client may in appropriate cases have his remedies in damages or in respect of the wasted costs; thirdly, it seems to me that it would become a charter for the incompetent … were this court to allow almost impossible investigations in apportioning blame between solicitor and counsel on the one hand, or between themselves and their client on the other.”
“There is no doubt that the CPR give the court greater powers, enabling the court to choose between a wider range of remedies and sanctions, and that in the exercise of its powers the court must have regard to the overriding objective which recognises the principle of proportionality. The CPR relate to the making of a wasted costs order against legal representatives, as had the RSC; but I see no justification for Mr Pooles' submissions on the CPR requiring the court to draw distinctions between a party and his legal representatives. Of course, if there is evidence put before the court that a party was not consulted and did not give his consent to what the legal representatives had done in his name, the court may have regard to the fact, though it does not follow that that would necessarily, or even probably, lead to a limited order against the legal representatives. It seems to me that, in general, the action or inaction of a party's legal representatives must be treated under the CPR as the action or inaction of the party himself. So far as the other party is concerned, it matters not what input the party himself has made into what the legal representatives have done or have not done. The other party is affected in the same way; and dealing with a case justly involves dealing with the other party justly. It would not in general be desirable that the time of the court should be taken up in considering separately the conduct of the legal representatives from that which the party himself must be treated as knowing, or encouraging, or permitting. However, in the present case there is in fact no evidence at all as to what the defendant knew of the action or inaction on his behalf taken by those representing him. In my judgment, therefore, in this case there is even less scope for making an order against the legal representatives which would leave the defendant himself without any sanction against them.”” “Ordinarily this court should not distinguish between the litigant himself and his advisors. There are good reasons why the court should not: first if anyone is to suffer for the failure of the solicitor it is better that it be the client than another party to the litigation; secondly, the disgruntled client may in appropriate cases have his remedies in damages or in respect of the wasted costs; thirdly, it seems to me that it would become a charter for the incompetent … were this court to allow almost impossible investigations in apportioning blame between solicitor and counsel on the one hand, or between themselves and their client on the other.” “There is no doubt that the CPR give the court greater powers, enabling the court to choose between a wider range of remedies and sanctions, and that in the exercise of its powers the court must have regard to the overriding objective which recognises the principle of proportionality. The CPR relate to the making of a wasted costs order against legal representatives, as had the RSC; but I see no justification for Mr Pooles' submissions on the CPR requiring the court to draw distinctions between a party and his legal representatives. Of course, if there is evidence put before the court that a party was not consulted and did not give his consent to what the legal representatives had done in his name, the court may have regard to the fact, though it does not follow that that would necessarily, or even probably, lead to a limited order against the legal representatives. It seems to me that, in general, the action or inaction of a party's legal representatives must be treated under the CPR as the action or inaction of the party himself. So far as the other party is concerned, it matters not what input the party himself has made into what the legal representatives have done or have not done. The other party is affected in the same way; and dealing with a case justly involves dealing with the other party justly. It would not in general be desirable that the time of the court should be taken up in considering separately the conduct of the legal representatives from that which the party himself must be treated as knowing, or encouraging, or permitting. However, in the present case there is in fact no evidence at all as to what the defendant knew of the action or inaction on his behalf taken by those representing him. In my judgment, therefore, in this case there is even less scope for making an order against the legal representatives which would leave the defendant himself without any sanction against them.””
“I stand by everything that I said in the Bank Mellat case about the importance of full and frank disclosure, and I would support any policy of the courts which was designed to buttress that by declining to give anybody any advantage from a failure to comply with that obligation. I would go further and say that it is no answer that if full and frank disclosure had been made you might have arrived at the same answer and obtained the same benefit. This is the most important duty of all in the context of ex parte applications. Thus I can well understand the learned judge reaching the conclusion which he reached, but I think that he failed to take into account, at any rate expressly, and if he did take it into account I think he failed to take it into account to any real extent, one unusual feature in this case. This is that the fault was entirely and completely that of the solicitor, Mr Saul. It is said by Mr Sheridan that that is a factor to be taken into account but it really would not make any difference and is not decisive. He says that as a matter of ordinary principle, the principal is responsible for the actions of his agent. That no doubt is true. He says that in the cases where courts have been concerned with dismissing actions for want of prosecution it has been no answer that, as is usually the case, the solicitor was solely to blame. That again is also true, although I think it has to be said that if there will be very considerable difficulties in the client formulating a claim for damages against the solicitor, that is a factor which is taken into consideration. In this case if the injunction is discharged and a judgment is obtained by Mr Mahmoud against Mr Jarade, there would be very considerable difficulties in deciding how much better off he would have been had there been a Mareva injunction. Be that as it may, it seems to me that that responsibility of a principal for his agent cannot be decisive in all circumstances and that one has got to look at the facts of every particular case. Mr Mahmoud is a gentleman who comes here from abroad. He approaches a perfectly reputable English solicitor. When trouble breaks out he asks the solicitor what can be done: he is told, “You get a Mareva injunction” (I am sure he did not use those exact words), Mr Mahmoud says, “Please do that” , and the matter is left entirely to the solicitor. It does seem to me that it would be visiting the sins of the solicitor to an undue extent in this very exceptional situation if Mr Mahmoud were to be deprived of relief to which he always was entitled, when he himself has done nothing wrong. Mr Sheridan says that that is not quite right. He says that Mr Mahmoud can be criticised because on 27th and 28th June he discovered that Mr Saul knew far more about these transactions than he had previously thought. Mr Sheridan says that at that moment he should have said to Mr Saul, “I will have no more to do with you: I must get another solicitor.”
“The courts administering the remedy always distinguish sharply between tracing and other remedies available where the plaintiff asserts that the assets in question belong to him and that the dealings with them should be enjoined in order to protect his proprietary rights, and Mareva injunctions granted where the plaintiff does not claim any interest in the assets and seeks an inhibition of dealings with them simply in order to keep them available for a possible future execution to satisfy an unconnected claim.”