“Our investigation focused on the suspected payment of bribes by the company and individuals connected to it to secure access to lucrative mining contracts in the Democratic Republic of the Congo (DRC) between 2009 and 2012. We conducted a comprehensive investigation spanning multiple jurisdictions to examine the alleged conduct and exhausted all reasonable lines of enquiry. We review all our cases on an ongoing basis to help us deliver justice for victims and value to the public. As a responsible prosecutor, we must ensure all our cases meet the stringent evidence and public interest tests set by the Code for Crown Prosecutors. In August 2023, following our latest review of the investigation, we concluded that we have insufficient admissible evidence to prosecute, and closed the case.”
“…Sometimes there may be a single cause. More often there is a combination of causes. If the discharge of a missile or other event may be properly said to be a cause of the injury, that is sufficient to entitle the claimant to an award of a pension, notwithstanding that there may be other causes co-operating to produce it, whether they be antecedent, concurrent or intervening. It is not necessary that the discharge of the missile or other event should be “ the ” cause of the injury in the sense either of the sole cause or of the effective and predominant cause. In many cases where there is a combination of causes, it is impossible to single out one cause as distinct from others, and any attempt to achieve that impossible task would lead to difficulties as the insurance cases amply show.. All that is necessary is that the discharge of the missile should be properly speaking “a” cause of the injury,..”
“But the “but for” test is not of universal utility. It has been criticised as a test of factual causation because it excludes a common sense approach which the common law favours and because it implies that value judgment should have no role in factual causation: March v E & M H Stramare Pty Ltd(1991) 171 CLR 506 , 515, per Mason CJ, cited with approval by Glidewell LJ in Galoo Ltd v Bright Grahame Murray[1994] 1 WLR 1360 , 1374. In fact, value judgments do play a role and the “but for” test is inadequate in cases in which there is more than one wrongdoer and more than one sufficient cause for the harm.”
“18 The reason for the rule that each concurrent tortfeasor is liable to compensate for the whole of the damage is not hard to find. In any such case, the claimant cannot prove that either tortfeasor singly caused the damage, or caused any particular part or portion of the damage. Accordingly his claim would fall to be dismissed, for want of proof of causation. But that would be the plainest injustice; hence the rule. However, the rule was a potential source of another injustice. A defendant against whom judgment had been given, under the rule, for the whole of the claimant's damages had at common law no cause of action against his fellow concurrent tortfeasor to recover any part of what he had to pay under the judgment; so that the second tortfeasor, if for whatever reason he was not sued by the claimant, might escape scot-free. Hence the 1978 Act…It provides a right of contribution between concurrent tortfeasors. The expression "same damage" in section 1(1) therefore means (and means only) the kind of single indivisible injury as arises at common law in a case of concurrent torts. 19 The justice which lies behind the rule as to concurrent tortfeasors, that is the rule that each is liable for the whole of the damage constituted by the single indivisible injury suffered by the claimant, casts much light on what is meant by "single indivisible injury" and thus "same damage". Professor Glanville Williams, at p 17, referred to "the logical impossibility of apportioning the damage among the different tortfeasors" (my emphasis). This, I think, sits somewhat uneasily with a passage from the judgment of Devlin LJ as he was then in Dingle v Associated Newspapers Ltd[1961] 2 QB 162 , 189…"If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month's wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law." This approach seems to me to differ somewhat from one based on a logical impossibility of apportioning damage between tortfeasors. But that distinction may be too fine. The reality, I think with respect, is that both Professor Williams and Devlin LJ are referring to a class of case where there is simply no rational basis for an objective apportionment of causative responsibility for the injury between the tortfeasors; and the expression "single indivisible injury" is a shorthand description for that class of case. Now, the clearest instance of concurrent torts is one where the injury in question would not have occurred but for both torts: where, if only one had been committed, the injury would not have occurred at all. An example is afforded by a variant of the case given by Devlin LJ Suppose that two assailants, not acting in concert, shoot a man, who dies in consequence; but the expert evidence is that either shot on its own, while causing grave injuries, would not have been fatal. The death is entirely and only the result of both shots. This case is like that given by the American author Prosser, in which the oil put in the stream by both defendants is ignited, and burns the plaintiff's barn. It is also like the wholly artificial case which I put to counsel in the course of argument, where two surgeons are simultaneously but independently operating on the claimant, each on one eye. Both are negligent, so that the sight in each eye is lost when it should not have been. But of course the combined effect is that the claimant is entirely blind: that is the single indivisible damage for which he is entitled to be compensated in full by either defendant. 20 But this is not the only kind of instance of concurrent torts. It is the first of the two types identified by Professor Glanville Williams in the passage from his work which I have cited. The second, it will be remembered, was "where either cause would be sufficient of itself to produce the consequence, as where two persons independently shoot at another at the same time, both shots being fatal". Is there a third kind of instance? I have in mind a case where it is shown that (a) each tortfeasor caused some part of the damage, but (b) neither caused the whole, and (c) some part (but not all) of the damage would therefore have been occasioned to the claimant if only one tort—either of them—had been committed, but (c) on the evidence it is impossible to identify with any precision what part or element of the damage had been caused by which defendant.”
“182 It has, however, long been recognised that in law as indeed in other areas of life the “but for” test is inadequate, not only because it is over-inclusive, but also because it excludes some cases where one event could or would be regarded as a cause of another event. An example given by Hart and Honoré in their seminal treatise on Causation in the Law, 2nd (1985), p 206 is a case of two fires, started independently of each other, which combine to burn down a property:.. It is natural to regard each fire as a cause of the loss even if either fire would by itself have destroyed the property so that it cannot be said of either fire that, but for that peril, the loss would not have occurred. Another example,… is a case where two hunters simultaneously shoot a hiker who is behind some bushes and medical evidence shows that either bullet would have killed the hiker instantly even if the other bullet had not been fired. Applying the “but for” test would produce the result that neither hunter’s shot caused the hiker’s death, a result which is manifestly not consistent with common-sense principles. 183 In these examples each putative cause, although not necessary, was on the assumed facts sufficient to bring about the relevant harm. Such cases are thus often described as cases in which the result is causally “over-determined” or “over-subscribed”
“…did the defendant’s acts of encouragement, threat, persuasion and so forth have a sufficient causal connection with the breach by the contracting party to attract accessory liability?...”
“…The defendant is made responsible for the third party’s breach because of his intentional causative participation in that breach. Causative participation is not enough…”
“For inducing breach of contract the essential elements were knowledge of the contract, intention to induce a breach of the contract and actual breach of contract. Accordingly, to be liable, a person must know that his action will result in a breach of contract:… As to breach, it is not enough that the defendant obstructed a person in the performance of the contract. The defendant’s conduct must actually have caused a breach of that contract: per Lord Hoffmann at para 44.”
“…What then are the relevant differences in the rules governing the damage recoverable for breach of duty as between contract and tort? It appears to be accepted that the “reasonable contemplation” test in contract is more restrictive than the “reasonable foreseeability” test in tort: see the discussion of this in The Achilleas[2009] AC 61 , paras 31-32 in the judgment of Lord Hope. Damage may be of a kind which is reasonably foreseeable (and therefore recoverable in tort) yet highly unusual or unlikely (and therefore irrecoverable in contract)…”
“Secondly, in order to comprise a novus actus interveniens, so breaking the chain of causation, the conduct of the claimant “must constitute an event of such impact that it ‘obliterates’ the wrongdoing . . . ” of the defendant: Clerk and Lindsell on Torts, 19th Edition, at para 2-78. The same test applies in contract. For there to be a break in the chain of causation, the true cause of the loss must be the conduct of the claimant rather than the breach of contract on the part of the defendant; if the breach of contract by the defendant and the claimant’s subsequent conduct are concurrent causes, it must be unlikely that the chain of causation will be broken. In circumstances where the defendant’s breach of contract remains an effective cause of the loss, at least ordinarily, the chain of causation will not be broken:…”
“Furthermore, it is in our view unfortunate that the judge in the present case should have found assistance in what Popplewell J said in Asda[2017] 4 CMLR 32 , para 307, when the anti-competitive conduct in that case was not remotely comparable to the concerted and dishonest worldwide cartel in which ABB participated. Any suggestion, in a case of the present type, that the court should "err on the side of under-compensation" is liable to give entirely the wrong impression, quite apart from the obvious point that the aim of the court should always be to give the right amount of compensation, without erring in either direction. All that said, however, we remain of the view that, when para 12(9) of the judgment is read as a whole, it does not betray any fundamental error of approach which vitiated the judge's performance of his task. The most that can be said, in our view, is that in considering the judge's approach to, and assessment of, the evidence before him, we should be alert to the possibility that he may have been unduly prone to give ABB the benefit of the doubt, or to err on the side of under compensation, when (of necessity) wielding the broad axe or broad brush.”
“573. As for reference to red flags, it is said that this was innocuous, since Mr Richards had already referred to them (without objection from Mr Ehrensberger) in OM1. That is true, but context is everything. To say that there were lots of red flags and also “lots to tell” implies that Mr Gerrard had found matters of serious concern which might not be the same as or limited to the matters mentioned at OM1, otherwise why say this? It is rather like a conspiratorial (in a non-legal sense) whisper. It was not in ENRC’s best interests to say this sort of thing and Mr Gerrard knew it… 592. What Mr Gerrard said was clearly against ENRC’s interests because he said he felt he was being professionally compromised. He could not possibly have had authority to say this. The fact that Mr Ehrensberger had said (at OM1) that effectively, he could not work at ENRC unless it was open and transparent does not affect the significance of what Mr Gerrard said here or his authority to say it. It is one thing for a Board member or executive officer to say something like what Mr Ehrensberger did as an assurance; it is quite another when a solicitor is saying that he was or could be professionally embarrassed… 611. For his part, Mr Thompson did not accept that, at the time, he thought there was anything said which was plainly against ENRC’s interests although he accepted with hindsight that it could be said that Mr Gerrard was seeking to disparage Mr Ehrensberger. As for the disparaging of JD, Mr Thompson said that the SFO had already concluded that they were conflicted, and in that sense, what Mr Gerrard said was not new. But in my judgment, it is not simply about whether the information or communication was new. It is also about who was saying it. See paragraph 528 above, in the context of knowledge drawn from the press. Nor is it an answer to say that the references to falsification and destruction of documents were not plainly unauthorised, in the eyes of Mr Thompson, simply because of the December Article. Again, it all depends who is saying it. The same goes for the references to the “odd”
“Subject: Corporate Governance and media allegations of corrupt practice My Director, Richard Alderman, has discussed with me recent intelligence & media reports concerning allegations of corruption and wrongdoing by Eurasian Natural Resources Corporation (ENRC). Guidance on self disclosure of corruption is set out within the Serious Fraud Office's (SFO) website…and I would take this opportunity of referring you to that document and urge you to consider it carefully whilst ENRC undertake any internal investigations. In the meantime both Richard Alderman and I would like to discuss with you, at this office, ENRC's governance and compliance programme and its response to the allegations as reported. As Richard Alderman and I are on leave next week would you please coordinate a convenient meeting date with Ms Andrea Johnson… I can confirm that at this stage the SFO is not conducting a formal criminal investigation into ENRC plc.”
“• The need for a frank and thorough formal report of any wrong-doing that has been discovered. • The requirement that the SFO is satisfied that the scope of the investigation has not been restricted. • The Board of Directors have demonstrably committed to the process.”
“I have been becoming increasingly concerned with the way in which the investigation is progressing. I set out below my principal concerns: 1. We understand that Victor and Beat are influencing or directing the investigation. We advise that immediate changes are made to the Special Investigation Committee. This will ensure that the investigation is carried out with the level of independence that the SFO expects. 2. The scope of the investigation is being narrowed to a level which will not be acceptable to the SFO. We believe that the SFO will be concerned that the company is not willing to fully investigate matters it raised. 3. We are not making the appropriate progress to access your commercial lawyers and/or their documentation: (a) Jones Day - no access and no Chambishi documentation provided; (b) Herbert Smith - written report promised by them and additional documentation requested on9 February 2012 and16 March 2012 not provided. 4. We have not yet received key documents from Beat and Victor. I have grave concerns that the company runs the real risk that the SFO will lose confidence in the company's ability and willingness to provide a full and frank report. The consequences of this will be the withdrawal of the civil process and the commencement of a criminal investigation.”
“At pp7-8 Mr Thompson set out the areas where the information provided by Mr Depel was consistent with other information held by the SFO including in relation to difficulties expressed by Mr Gerrard. Mr Thompson then set out at p8 points that might detract from Mr Depel’s credibility. He concluded thus: “I have been involved in the meetings with ENRC since November 2011, and have reviewed all the intelligence and open source material we have. The interview of Mr Depel is a major development. Overall I regard the information he has provided as credible, as it is generally consistent with the other information available to the SFO. The choice for the SFO is now whether to continue with the self reporting process. If Mr Depel is even partly correct, in my view it is inconceivable that a civil settlement would be an appropriate outcome. It seems to me that the overarching question is whether ENRC should be allowed to continue to access the UK capital markets when in reality those controlling the company appear to regard the UK's listing and corporate governance rules with contempt. It will not be an easy case to investigate and prosecute, but I recommend that the Director now considers adopting the case as a criminal investigation.” “I have been involved in the meetings with ENRC since November 2011, and have reviewed all the intelligence and open source material we have. The interview of Mr Depel is a major development. Overall I regard the information he has provided as credible, as it is generally consistent with the other information available to the SFO. The choice for the SFO is now whether to continue with the self reporting process. If Mr Depel is even partly correct, in my view it is inconceivable that a civil settlement would be an appropriate outcome. It seems to me that the overarching question is whether ENRC should be allowed to continue to access the UK capital markets when in reality those controlling the company appear to regard the UK's listing and corporate governance rules with contempt. It will not be an easy case to investigate and prosecute, but I recommend that the Director now considers adopting the case as a criminal investigation.”
“52. Had Mr Depel proved to be a critical witness for the purposes of deciding how to engage with the self-report process, or deciding whether to open a criminal investigation, then we would have interviewed him again and then drafted a witness statement so that he could give evidence on the record. In the event, we never took a witness statement from Mr Depel throughout the time I was involved in the ENRC matter, which ended with the opening of the criminal investigation. We came to see that the account he had given us was full of broad brush assertions about people, some of which amounted to little more than company gossip. What he told us was not very useful because it was not specific enough, beyond him telling us of his dislike of ENRC employees and management. We were also very aware that, as a whistleblower, his answers could be influenced by his feelings towards ENRC. .In hindsight I can say that he did not really add much value to the case as a whole. The information he provided did not in fact lead to a criminal case being opened, contrary to the suggestion in my memorandum of22 May 2012 . As I have said above, Mr Gould was keen to continue the self-report process, and he apparently took the view, with which I have subsequently come to agree, that Mr Depel’s information did not materially change the case for a criminal investigation. The criminal investigation was not opened until April of the following year, and Mr Depel’s disclosures did not have any bearing on the decision to open a criminal investigation almost a year later… 54. Having reviewed these documents [identified in paragraph 53] , I am fortified in my recollection that Mr Depel’s interview did not have any bearing on the decision to open a criminal investigation. 55. The email which I sent to Mr John dated23 April 2013 was intended to set out for him the key reasons for acceptance so that he could prepare a record of the decision. Those reasons are reflected in the Case Acceptance Notification. The six key reasons for acceptance to which I refer in my email do not appear to have anything to do with Mr Depel’s interview. Further information had become available to the SFO over the course of the 11 months since Mr Depel’s interview and matters had moved on. The suggestion that Mr Depel’s answers in that interview influenced a case acceptance decision taken nearly a year later makes no sense to me.”
“Mr Thompson was also asked about the significance of the interview; as just noted, he recommended that a criminal investigation be started, saying that the interview was a major development. Mr Thompson said that with hindsight, and as matters turned out this was not really the case. I think that here, there is an element of Mr Thompson now seeking to downplay the significance of the interview especially in the context of conceding that at least in some respects he had been seeking or receiving privileged information. That said, it obviously was not viewed as sufficient to start an investigation because there was no investigation at that stage.”
“Sorry bad signal on the train. DGCBQC has shown he ignores or passes such requests for meetings etc back to the case team. We should have Alun Milford with us when we meet next week. That move is my suggestion to the 9th floor to get them on board as to how I believe this could be resolved—2 parts, one non pros and one pros (although the 2nd part may be more than one defendant). I believe AM will take a reasonable stance when the material is viewed; it is, in my opinion, after all not material we are ever going to get in an evidential format. Happy to chat later if you/client need more comfort—should be available from about 6.45 or so (or tomorrow afternoon in the office). DG (the non CBQC one!).”
“The question is whether the factors favouring re-opening the order are, in combination, sufficient to overcome the deadweight of the finality principle on the other side of the scales, together with any other factors pointing towards leaving the original order in place.”
“But for the SFO’s allegedly wrongful conduct:..Would the SFO have announced a criminal investigation into ENRC in April 2013 or pursued an investigation thereafter?”
“34. Our system for deciding whether to open a criminal investigation was that there would be a Case Evaluation Board, comprising Mr Milford, Geoffrey Rivlin and the case team. They would make a recommendation to me and I would decide whether or not to accept it. The test to be applied is whether the Director has reasonable grounds to suspect serious or complex fraud. In this case it appears that I actually attended the Case Evaluation Board myself, which was unusual. I cannot remember why this was but I assume, from my reading of Mr Thompson’s email to Mr Milford of12 April 2013 , that I attended because it was felt that the matter was urgent and needed to be progressed. 35. Prior to attending the17 April 2013 meeting, I would have spent a while reading the recommendation and trying to understand it in order to make a decision. Looking at my notes of17 April 2013 , I think I would have made these before the meeting and perhaps added to them during the meeting. At point 3 I have noted “?Decherts must have found something.”
“193. I remember the meeting on17 April 2013 to consider whether to open the criminal investigation. It quite informal and "roundtable” in style: the attendees were discussing the Recommendation, asking questions, and considering the practicalities of the investigation. 194. The short note I circulated after the meeting recorded that: “The meeting focussed on clear lines of enquiry arising from the work undertaken by Dechert LLP (be it provided to the SFO by means of update meetings or a formal report”
“204. It is clear from these documents that I was at the meeting on17 April 2013 when the Director decided, subject to its scope being refined, to open a criminal investigation into ENRC. The documents have not prompted any memories. 205. The first key reason for acceptance I provided to Mr John was “Information coming to light suggesting that the company was not being frank with the SFO in terms of the findings of its internal investigation.”
“We concluded from ENRC’s decision to terminate the retainer of Dechert, very shortly before Dechert was due to disclose to us the findings of its African investigation, that ENRC had decided not to make full and frank disclosure of the results of its investigation.” (4) As for Mr Milford, he said as follows in his WS: “43. Under the system we had put in place the question of whether to open a criminal investigation would be reviewed by a Case Evaluation Board. As noted above, I used to chair these boards. Also as noted above, the statutory test for opening a criminal investigation was (and is), to paraphrase, reasonable suspicion of serious or complex fraud. We would go through the inferences that arose from the material we had. Once clear about that, we would go through whether it met the statutory test. If it did, we went on to consider whether it met the Director’s published take-on criteria. 44. For the purposes of preparing this witness statement the SFO’s legal representatives have shown me a number of documents relating to the decision to open a criminal investigation into ENRC, including:…. 45. I cannot remember the detail of the meeting on17 April 2013 although I can remember it taking place in the Director’s office. I see from reading the documents that it was decided at this meeting that a criminal investigation into ENRC should be opened and it is apparent from the documents that the decision-making process was expedited. I think this would have been because we were concerned about evidence being lost, as I have explained above and as Mr Thompson noted in his email of 12 April. Unusually the Director sat in the meeting, and he chaired it. 46. I note the email exchange between Geoffrey Rivlin and Matthew Wagstaff regarding Dick Gould’s understanding of the remit of the investigation. I suspect what Geoffrey had in mind was that Dick Gould had wanted a full-blown cross-agency team looking at this case. That obviously wasn’t accepted. I evidently felt that I needed to make clear for the record that the decision should be sharply focused as far as UK-based entities were concerned, as I sent an email setting that out the following morning. I think, looking at the documents, that my email was supposed to be corrective to the note Mr Gould circulated after the meeting. Perhaps I should have rewritten Mr Gould’s note completely, but I probably did not have the time and so I sent an email setting out the key points instead. Eventually, Mr Thompson sent an email which confirmed the position for the notification document.”
“SFO Case acceptance criteria The Key Criterion for the SFO to take on a case is that the suspected fraud was such that the direction of the investigation should be in the hands of those who will be responsible for the prosecution. The factors that would need to be taken into account include: The factors that would need to be taken into account include: 1. Whether the sum at risk is estimated to be at least£1 million . (This is simply an objective and recognisable signpost of seriousness and likely public concern rather than the main indicator of suitability.) 2. The case is likely to give rise to national publicity and widespread public concern; such cases include those involving Government departments, public bodies and the Governments of other countries, as well as commercial cases of interest. 3. The investigation requires a highly specialist knowledge of, for example, financial markets and their practices. 4. The case has a significant international dimensional. 5. There is a need for legal, accountancy and investigative skills to be brought together as a combined operation. 6. The suspected fraud appears to be complex and one in which the use of section 2 powers (Criminal Justice Act 1987 ) might be appropriate.”
“1) ENRC's request for assurance about the use of the investigation report in evidence. 2) Possible use of a section 72 SOCPA agreement with ENRC to limit the use of the report by the SFO. 3) Whether the SFO should give ENRC any assurance about the use of the report, LPP and future prosecution. 4) Commencement of a formal criminal investigation.”
“6 Risks and sensitivities ENRC has been, and continues to be, the subject of significant press interest. There has been interest in ENRC's activities in the DR Congo from MPs, including Eric Joyce and the recent contact from Sir Edward Garnier. Anti-corruption NGOs have taken great interest in this matter. Global Witness in particular have done a lot of work on the DR Congo, and have contacted the SFO specifically on ENRC and made representations.”
“1. DSFO explained that he was concerned that the investigation appeared stalled. He said that he did not have a firm view on the way forward (i.e. prosecution, civil settlement) and was open to a discussion of the options. 2. MT reported on the earlier discussions that had taken place between the SFO and ENRC… there was no confirmation that they would receive a civil settlement. 3. General discussion on the Kazakhstan report (over 18 files of evidence) that Decherts says is now ready. ENRC are seeking reassurances as to how this file will be used by the SFO. 4. DG said that there had been a significant change in attitude at ENRC since the appointment of Mehmet Dalman to the Board. The problems with the share price has also added pressure to get 'their affairs cleaned up' and to move on. 5. DSFO asked when James Coussey will finish his review of all the material the SFO holds to assess the position on next steps. MT explained the JC is looking at the intelligence reports to see if the SFO can establish a criminal case. 6. DSFO asked about the Africa report. PR said that the expectation was that it would be sent to the SFO by the end of January. 7. DG said that collating quality evidence from the Congo was a real issue due to the earlier inhibiting actions of Dan Gertler and the practical risks of dealing with a country where large-scale violence breaks out frequently. He said without full cooperation of the suspects in Africa you wont get anything useful. 8. DG spoke about the US$35 loan that would most likely form the basis of any investigation — from Camrose into another subsidiary and then withdrawn in cash over a period of time. Financially this looks suspect. AM said that ENRC is listed in London and runs its accountancy through London — that gives an appropriate link for further investigation on this point. DG said that Decherts now have access to banking transactions. 9. DSFO said that he had read through MT's and DG's report of 18 January and it seems as though the possible fraudulent activity in Kazakhstan was largely on the company itself. DG said that this could extend to adverse impacts on ENRC's shareholders more widely and misrepresentation on the stock exchange. 10. DG also said there is evidence of suspect transactions in connection to the 'stripping' contracts, possibly including the involvement of the CFO of ENRC, Zaure Zaurbekova. She is based in London. DG said that the Decherts report did not cover the activity of the CFO. 11. DG continued to say that there was still an element of uncertainty as to the legal position of the Decherts report and on what basis they would send that over to the SFO. 12. GR asked if the team currently has enough evidence to bring any charge. 13. DG said no. At this point, only evidence to form a reasonable suspicion to commence a criminal investigation. DSFO said that we needed the 3 Decherts reports to assess our position on whether to open criminal proceedings or to consider the civil recovery route…”
“Note of my phone call to NG at 1650 today: I called NG on his mobile - he was in the USA. We discussed his client's position and where they are with reporting to us. Re Kazakhstan, they have largely completed the additional work on the stripping contracts and the more recent allegations about the CFO. The stripping contracts have been found to be consistently inflated/fraudulent by about 30%. The position with the CFO is that whilst they have found "unfortunate coincidences" the allegations have not been substantiated. His overall view is the there is insufficient evidence to amount to relevant criminality for our purposes (though some sort of civil action or referral to UKLA could be considered). However he said that his current report on these points is still in draft and is subject to: firstly a need for experts to agree; and secondly Board approval. He described the Board as nervous after Patrick's latest letter. In consequence he is seeking an extension of time to report properly to us towards the end of March. In respect of Africa he was vague but what he said was very interesting. He described the situation as complicated but more concerning for the Board. He said he thought that he had taken his work as far as he could without there being a risk to any investigation we might wish to carry out. I think this was in respect of risks of loss of evidence or by alerting potential suspects, but he was not at all specific. He said he would ideally like to come and meet us about this and explain further. I said I would relay all this to Patrick and we would get back to him. NG said he would be back in the UK 0730 on Thursday and would be keen to meet next week if at all possible (in addition to knowing our view on the delivery of the Kazakh addendum reports). My inference from what he said is that there is some real substance to the issues found in Africa, presumably in respect of the Camrose transaction and the cash payments previously flagged as unaccounted for. I would suggest that we agree our position and Patrick relays this to him when he is back in.”
“I received another call from NG. He had called me as he had been unable to get hold of Patrick. He confirmed that his further report on Kazakhstan was not yet ready. I said that, having discussed it with Patrick, we were content for the report to be finalised in March. NG said that he had recently received further information from another whistleblower claiming that the management of SSGPO were behind the fraudulent stripping contracts. He also mentioned the involvement of the ENRC CFO's son in a company involved in a stripping contract. It was unclear exactly what the CFO knew but he repeated his comment to me of yesterday that there were a number of unfortunate coincidences. This will be addressed in the further report when it is finalised. NG then moved on to Africa. He said there were "massive problems on sanctions". It appears that the company has conspired to beach [sic] various sanctions and had even been dealing with sanctioned individuals until very recently. The previous engagement (i.e. information provided by Pierre Prosper in March 2012) with the SFO over the sanctions issues now looks as if it may have been misleading. He requested a discussion so that he could get a steer on whether to continue investigating this. NG then commented on the£35m cash payment linked to the Camrose take over and the promissory notes. He described the cash payment as a "corrupt" payment to Dan Gertler in which Victor Hanna (ENRC Africa) had connived. He described the arrangements around the promissory notes as "bemusing". He repeated his concern that he did not want to continue his work to the detriment of any future investigation by the SFO. NG also said that he now believes there are relevant e-mails and documents to which he has been denied access thus far. NG again repeated his offer of a meeting to explain the position in more detail I said that whilst this was potentially helpful, the SFO's position remained that we needed substantive reports to consider rather than verbal updates. I said I would relay the conversation to Patrick and his team.”
“All For the record, attached is a note of my recent calls with Neil Gerrard. The second conversation certainly suggests that the African issues are looking much more serious. Inrespect of the additional Decherts report received, rather unexpectedly, late yesterday, I have only read the Exec Summary. From this, it looks like there is a lot of murk in SSGPO in Kazakhstan but nothing that would really amount to anything of interest to us. Even the CFO's involvement may not be as interesting as first thought, but we await Neil's final conclusions on that.”
“Separately NG raised the issue of Africa: 1. They had identified significant evidence of wrongdoing. 2. They will be recommending to the ENRC board this Friday that 1 or 2 people be suspended pending the investigation continuing 3. Criminality identified in summary as follows: - OFAC sanctions breaches - Euro sanctions breaches - Bribe payments—Hard evidence that 35 million was given to Gertler, and material to suggest that this has gone on as bribes Main suspect Victor Hanna, UK resident, US national, Africa CEO Decherts want to give the SFO an update briefing on this, in advance of any report, as there are complications with ‘lawyers’ being involved, who appear to be aiding and abetting, and also misleading HMT and the SFO. Ideally they want to do this this month, particularly as they want to suspend 1/2 people, and do not want to jeopardise any subsequent SFO investigation.”
“The points of interest to the SFO were the transactions relating to the purchase of: CAMEC (believed to be in 2009); Camrose (believed to be in 2010; and Chambishi (also believed to be in 2010). These points of interest would need to include a review of, but were not limited to, the following subcategories: Due diligence and valuations; Loans and funding of the transactions; Management and Board knowledge; Market Disclosures (if and where applicable); Sanctions (be it country or person); and Books and records review. I also raised at the meeting on the3rd April 2013 a particular issue which has already been alluded to at a number of meetings with Dechert LLP and members of the Board of ENRC Plc (including meetings at which Mr Dalman and Mr Wilkinson have been present) namely payments into and out of Metalkol. The information provided in update meetings indicates that the funds in question are linked to the purchase of Camrose. The payments the SFO has so far been informed of, albeit in a limited manner, into Metalkol span 2010 to 2012 whilst payments out of Metalkol may extend to more recent times. However there are payments out of Metalkol between24th January 2011 and10th February 2011 (inclusive) which are of particular concern to the SFO. I trust that this information will enable you to discuss the focus of any report with your clients. As was set out at the meeting on the3rd April 2013 the SFO was expecting a report on Africa by the end of this month; given your client's wish to progress this matter I would like to understand their expectations, in terms of a time-line, as to any suggested delivery date of such a report.”
“Alun As previously mentioned, the Director tasked us last week with producing an evaluation report by today. Dick has done an excellent job in pulling together the Byzantine threads of this saga over the course of the last week and the report is attached. It is necessarily quite detailed as the situation is complex and requires careful consideration by us all. My own view is that a criminal investigation is now required but the exact scope of that investigation needs to be determined in the light of the factors Dick has highlighted. There is some urgency as ENRC has an AGM coming up on the 16 April. It is possible that the current chairman may not be re-elected. If we are to commence a criminal case in earnest there are good reasons to take some urgent steps to secure certain material. I know there is plenty going on with […] etc, but would it be possible to convene a panel early next week (e.g. Tuesday)? I leave it to you decide on exactly who should attend, but it may be simplest for the Director to attend the panel in the circumstances. I would also suggest that James Coussey, Dick and I all be present to assist with the detail.”
“As I explained briefly on Friday, the paper was drafted by Dick under some time pressure and I did not interfere with the content. I have some additional observations for you to consider, as set out below. • There are some points that may need clarifying with Dick as to precisely what he means (e.g. paras 9, 25 and the comments on International Co-operation on pages 14-15). • The suggestions under Press Strategy are interesting but I doubt that they are realistic. There has been frequent and sustained press interest in this for several years and I do not think that trying to warn the press about s342 offences is really going to work. Arguably, it is pressure from public exposure that has brought the company this far. • The overall recommendation for considering a JIT is reasonable in the circumstances. This is a massive and very well resourced company with a very wide range of activities and subsidiaries. I understand that Decherts have charged over£20m for their work to date - and they only looked at a limited number of issues. Dick is quite right to point out that if we are intending to launch a wide ranging investigation, the resource implications are significant. This would inevitably need blockbuster funding. • Dick's comments on risk, health & safety etc are also not overblown. The indications from the limited work we have done to date are that this is a nasty company which has grown out of an ex-Soviet regime and not shed some of the tactics that went with that background. As stated below, my own view is that this case should be adopted for criminal investigation. A civil settlement (of whatever magnitude) would be difficult to defend in any kind of principled way. If we step back and look at the reality of the position, the fundamental issue is that this company should never have been allowed to list on the FTSE in the first place. It is not a properly run PLC and it still only has 18% of shares tradeable. The only reason we have got this far is that the share price has tanked over the last few years and this has impacted on the controlling shareholders. I therefore think that this is a case that manifestly meets the revised criteria for a criminal investigation - particularly given its impact on UK Plc. That said, my major concern about Dick's recommendation for a broad investigation is a lack of focus. Undoubtedly, the more we looked the more we would find. However, how much of it is ultimately prosecutable is a different question. The Kazakh stuff is extremely murky but I would be concerned that we could spend a lot of time and effort chasing shadows. The African allegations look much more promising, involve some senior people and would, if successful, make a major impact. A combination of sanctions is also a serious possibility - e.g. a charge under s7 of the Bribery Act against the company, prosecutions of individuals for corruption in respect of the African allegations, prosecution of the UK side of the Kazakh stuff (Alex Stewart etc), some civil recovery action and referral to the UKLA of relevant matters.”
“a) Permit ENRC Plc to continue to conduct an internal enquiry and reach an amicable solution once both Kazakhstan and Africa reports have been considered; this may be by way of a civil recovery or an agreed basis of plea to criminal proceedings but without a formal criminal investigation being conducted. b) Conclude that the report provided by the company into Kazakhstan is sufficient to dispose of the areas it addresses by way of a civil recovery disposal and await the report into issues involving Africa thereby treating the matters as entirely separate. c) Open a formal criminal investigation tightly focused on ENRC Plc. d) Open a formal criminal investigation into ENRC Plc and the surrounding entities that gave rise or are involved in the suspected criminal conduct in ENRC Plc.”
“encompasses the entire criminality of ENRC Plc including those parties which provide a complete picture of the wrong-doing e.g. the auditors and the intermediaries. It is likely to bring to the attention of the investigation team a wide range of lines of enquiry which have not yet been identified. Additionally it offers the potential for joint working with other law enforcement agencies or regulators to address the totality of corporate governance and compliance issues that impact on this case. This option offers the widest range of positive outcomes but is accompanied by the highest risk as described in the following sections.”
“a) This option utilises the least SFO resource. Undoubtedly a civil recovery resolution could be obtained; and one which could be of a significant magnitude. It is possible that some kind of plea agreement could be reached if the reports identify criminality that the SFO views must result in prosecution action. […]. Additionally there is concern that the reports into Africa will not be as open and frank as the SFO both expects and demands. It would also be difficult to present a compelling public reason for not pursuing any kind of formal investigation. As such I do not believe that this option is to be recommended.”
“Hello Mark, I have been tasked to draft the case acceptance notification for the corruption case mentioned above which will then be circulated to selected department within the SFO. A copy of the notification is attached for reference. I am contacting you to ask whether you would you be able to provide me with details of the "ground for acceptance" which has led the Director to sign off the case for investigation. Many thanks in advance,”
“Nigel The key reasons for acceptance would be: 1 Information coming to light suggesting that the company was not being frank with the SFO in terms of the findings of its internal investigation. 2 Information and apparent evidence of major corruption in respect of the company's operations in Africa, including alleged involvement of senior individuals within the company. 3 Significant allegations of corruption and fraud involving UK elements of the company's operations in Kazakhstan, including the possibility of a corporate offence under 57 of the Bribery Act: 4 Significant adverse impact on reputation of the City and UK plc from the pervasive nature of the allegations about the company. 5 Complex transactions with significant international dimensions requiring the multi-disciplinary skills of the SFO for an effective investigation. 6 Need for SFO's compulsory powers to be deployed to secure existing evidence and obtain further material. Taken together, these factors constituted a very strong basis for the acceptance of the case by the SFO, and the Director agreed at a meeting held on 19 April. Regards Mark Alun - please feel free to comment on anything I have missed as I understand this will be a document of record for Intel purposes.”
“Grounds for acceptance Information has come to light which suggests that the company was not being frank with the SFO in terms of the findings of its internal investigation. There is apparent evidence of major corruption in respect of the company's operations in Africa, including alleged involvement of senior individuals within the company. There are significant allegations of corruption and fraud involving UK elements of the company's operations in Kazakhstan, including the possibility of a corporate offence under S7 of the Bribery Act. The matter involves complex transactions with significant international dimensions requiring the multi-disciplinary skills of the SFO for an effective investigation. There is also a need for the SFO's compulsory powers to be deployed to secure existing evidence and obtain further material. The matter may cause a significant adverse impact on reputation of the City and UK Plc from the pervasive nature of the allegations about the company.”
“Information from global lobby groups strongly suggests that bribery and corruption has taken place in DRC in relation to mining interests held by ENRC. However no evidential material has been obtained from these groups which would lead to a formal criminal investigation; it is suspected that Dechert is holding material upon which such a decision could be based.”
“22. A review of the information obtained from the totality of the Section 2A interviews has led to the formation of a number of lines of enquiry which would be appropriate to explore in the event a formal criminal investigation is commenced. There is no material within the interviews which would be sufficient upon which to base a prosecution.”
“23. A vast array of material is available to the investigation as a result of Suspicious Activity Reports ('SARs'). Periodic reviews have taken place but resources have not permitted a full assessment of the lines of enquiry which this information source can provide.”
“90. I cannot decide the cause of the breakdown of the relationship without evidence being given but it seems to me that the need to keep the SFO onside regarding the self-investigation is not disputed. I accept that this state of affairs required the claimant to keep Dechert onboard, at least for the period of the relevant invoices. I consider this to be a special circumstance since that the claimant could not realistically challenge its solicitors’ fees within the month required by the Solicitors Act to avoid needing subsequently to demonstrate special circumstances.”
“Where the company suffers loss and this affects the value of shares in it, there is obviously some relationship between the loss suffered by the company and the loss suffered by a shareholder, so that in a loose sense it might be said that the latter loss reflects the former. But the loss suffered by the shareholder is not the same as the loss suffered by the company. There is no necessary, direct correlation between the two. The loss suffered by the shareholder does not reflect the loss suffered by the company, in the stricter sense of there being a one-to-one correspondence between them.”
“Since the value of a company’s shares is commonly calculated on the basis of anticipated future distributions, it is possible that a loss may result in a fall in the value of the shares. That is, however, far from being an inevitable consequence: companies vary greatly, and the value of their shares can fluctuate upwards or downwards in response to a wide variety of factors. In the case of a small private company, there is likely to be a close correlation between losses suffered by the company and the value of its shares. In the case of a large public company whose shares are traded on a stock market, on the other hand, a loss may have little or no impact on its share value.”
“…The point was that once the SFO became involved, the focus should have been on what was important to it. Yet fundamentally, this allegation had always been about internal fraud. In theory, any aspect of procurement wrongdoing could be said to flow from WB1, but that was not the focus once the SFO became involved.”
“NG gave the SFO an update in respect of Kazakhstan. In relation to NG's explanation of the likely fraud on the company that had taken place, Mark commented that there may be jurisdiction issues. By way of example he said that if it involves UK people then it may be relevant but in the context of the report back to the SFO he wanted the company to consider not over-burdening the SFO…”
“Mmm, I do not dispute that this could be an issue but I think this is too far fetched. We should focus on the straightforward sanctions issues. Widening this even further is likely to create even more issues with the client than we already have now ... M”
“ENRC accepts that this is a matter that had to be investigated once it arose in December 2011 but in my view, Dechert should have let KPMG get on and investigate it instead of challenging that assignment (disingenuously in my view) and then disputing some of KPMG’s conclusions. This was important because that argument then held up the production of the Kazakhstan report.”
“As pleaded at paragraph 180.1 of the RRRAPoC and paragraphs 89-110 of the SoC, had Dechert and Mr Gerrard not breached their duties, ENRC would have sought to limit, so far as possible, the extent of work promised to the SFO to prospective work to: (a) improve ENRC’s systems and controls; and/or (b) the completion of FRA’s books and records review in Africa; and/or (c) a limited review of the due diligence associated with the Camrose and CAMEC acquisitions, to involve interviews with professional advisers, members of the board and senior management. Instead, (as pleaded at paragraph 174) Dechert and Mr Gerrard repeatedly and wrongly expanded the scope of their investigations into Africa to include a disproportionate and unnecessary data recovery, analysis and review exercise, involving data from ENRC's servers in London and Zurich, and Africa. Work done beyond the scope of that pleaded at paragraph 180.1 of the RRRAPoC and paragraphs 89-110 of the SoC is unnecessary. This comprised largely work on document review and IT issues, but also other matters such as investigations into other subsidiaries, research and trips. This code has also been used in respect of certain work on document review and IT issues where Dechert’s invoices do not allow for clear identification of whether it relates to Kazakhstan or Africa.”
“Internal: As pleaded at paragraph 180.1-180.2 of the RRRAPoC and in the section of the SoC dealing with Issue 67, had Dechert and Mr Gerrard not breached their duties, their investigations would have been limited in the manner set out therein. Accordingly, no more than de minimis time should have been spent on internal liaison and this work is unnecessary. Work done on the supervision and training of junior members of Dechert’s team (e.g. trainees and paralegals) and purely administrative tasks (e.g. printing, billing and reading in) is also unnecessary.”
“The narrative description does not contain sufficient detail or information to justify the work said to have been done.”
“Preparation and attendance at meeting with Beat Ehrensberger to discuss SFO presentation. Follow up items and amendment of slides. Emails in and out.”
“As pleaded …had Dechert and Mr Gerrard not breached their duties, ENRC would have sought to limit, so far as possible, the extent of work promised to the SFO (see above). Moreover, as pleaded at paragraphs 92.2, the SFO stated at the5 March 2012 meeting that no further reports to the SFO on any alleged sanctions violations were required (J/1263, 1275). Accordingly, the sanctions investigation would not have continued beyond 5.3.12, save for a limited investigation of (i) the allegation that Mr Prosper made a suspect payment to Mr McCormick, and (ii) the concern that a conflict of interest arose from Mr Prosper acting for Mr Rautenbach, which would not have been a “huge task” and would likely have consisted of no more than a short document review and meeting with Mr Prosper (J/1275, J/1295, J/1319). ENRC has approximated the likely costs of such an investigation by identifying (so far as possible based on the limited detail provided in Dechert's invoices) all narrative entries recorded in connection with preparation for a meeting with Mr Prosper on22 May 2012 , after these issues were raised in Dechert's Project Kitchen report of4 May 2012 (J/1275). The total fees incurred in connection with those narrative entries amounts to£20,102.50 , adopting a generous approach to entries where there is some doubt whether they relate to these issues. ENRC accepts that 75% of these costs would have been incurred in any event as part of the Necessary Work, for which it does not claim. ENRC has given credit for this sum of£15,076.88 above.”
“As pleaded…had Dechert and Mr Gerrard not breached their duties, ENRC would have sought to limit, so far as possible, the extent of work promised to the SFO (see above). The information and document requests made by the Defendants went far beyond such a limited review.”
“As pleaded…had Dechert and Mr Gerrard not breached their duties, ENRC would have sought to limit, so far as possible, the extent of work promised to the SFO (see above). This would not have included an investigation into Chambishi (see paragraphs 102-105 of the SoC). Moreover…the scope of work discussed with the SFO on5 March 2012 did not include the Chambishi acquisition.”
“1320. As for Chambishi, it is correct that ultimately the SFO wanted an assurance that there had been no illegal activities on the acquisition. However, this was essentially a concern about a purchase from a related party where in fact there had already been two independent valuations. 1321. I also agree with ENRC that the amount of documentation reviewed and the number of persons interviewed were plainly excessive.”
“Tax and Legal risks: Incompliance with tax, ecology, subsoil use, labor and other legal requirements, which may lead to significant fines and penalties as well as discontinuance of operations;”
“1095 Fourth, there is no doubt that for the most part, Mr Dalman went along with what Mr Gerrard suggested. He said in evidence that he thought he was committed to the investigation and “to carry it forward in what he saw was the best interests of ENRC his client”
“… the SFO was concerned to make sure that whatever disposal was eventually agreed or decided upon, it was important that we were satisfied the company had indeed been transparent and had put in place arrangements that would be robust going forward.”
“ENRC accepts that there would in any event have been some investigation into Ms Zaurbekova once the whistle-blower allegation that she had defrauded ENRC of USD 20 million arose in October 2012 (J/1233) (the “PWC WBE”), which investigation would have formed part of the Necessary Work. However, such investigation would have been limited, because it was not a “matter for the SFO, at least not in any great detail, since again [it] essentially concerned possible frauds on ENRC, not instances of bribery and corruption” (J/1102). The work done by Dechert in connection with Ms Zaurbekova does not fall within a specific Workstream (see paragraph 3(2) above) and accordingly ENRC has conducted a review of the narrative entries recorded on or after16 October 2012 to identify work which relates to Ms Zaurbekova. The total value of that work amounts to£235,563.75 . However, the narrative entries relating to Ms Zaurbekova do not clearly distinguish between work which relates to the PWC WBE, and that which relates to other allegations being investigated by Dechert, such as the allegations in connection with education and procurement. That work was plainly unnecessary and excessive: J/1221-1244. Accordingly, only a small proportion of the fees incurred in connection with Ms Zaurbekova from16 October 2012 to31 March 2013 would have been incurred in any event as part of the Necessary Work, which ENRC estimates amounts to 10% of the overall total. This totals£23,556.38 , for which ENRC does not claim. ENRC has given credit for this sum above.”
“1317. On the assumption that both CAMEC and Camrose were part of the investigation for SFO purposes, leaving to one side how CAMEC came in after it had been taken out, I do consider that Dechert was really re-doing the due diligence on these acquisitions, not simply assessing its reasonableness or otherwise. 1318. It is therefore very difficult to see why it was really necessary to obtain images of the Africa data when, given that these were acquisitions by ENRC, one would expect the relevant data would be in London or Zürich. 1319. On Camrose, there was the additional matter of the loans and whether any of them were “soft” and the question of the promissory notes. They obviously took some time to investigate but it was not a huge task in my view. Nor was doing the further work on sanctions in the light of Mr Prosper’s connection to Mr Rautenbach. 1320. As for Chambishi, it is correct that ultimately the SFO wanted an assurance that there had been no illegal activities on the acquisition. However, this was essentially a concern about a purchase from a related party where in fact there had already been two independent valuations. 1321. I also agree with ENRC that the amount of documentation reviewed and the number of persons interviewed were plainly excessive. 1322. Overall, and as with Kazakhstan, it seems to me that Dechert, and in particular Mr Gerrard and those he was directing, had again lost any sense of proportion in the Africa investigation. That is even taking into account that it was, of course, of far more interest to the SFO than Kazakhstan. And as with Kazakhstan, Mr Gerrard was able to get away with it because of his explanation that whatever he recommended was what the SFO would want, together with his encouragement of the SFO to take a dim view of ENRC anyway, by reason of the DCs. None of that is to say that the three acquisitions in particular did not pose real issues to be investigated. Nor that any particular line of enquiry could be said to be theoretically irrelevant if one had infinite resources and all the time needed. But that was not the case here-there simply appeared to be no limits to what Dechert thought should be done, remarkably, given the Rappo Letter and a March deadline approaching. 1323. In my judgment, therefore, the extent and depth of the Africa investigation was expanded unnecessarily by Mr Gerrard. Since it was allied to his bad faith in relation to the DCs and warnings of raids etc I take the view that he simply did not care whether he was acting within reasonable bounds or not. Indeed if anyone at ENRC challenged his view, he more or less decided they were an enemy of the investigation. Yet despite that, Dechert did not really pursue its case of obstruction at the trial. Finally, and as with Kazakhstan, even if there was not recklessness (which I have found) Mr Gerrard was undoubtedly negligent.”
“Simon Zinger had been diverted almost exclusively to SIC matters and left on short notice. AG agreed to temporarily fill the gap at short notice and Clarissa Coleman was seconded in with Louisa Caswell to assist her. She has secured delegated authority on terms which I believe she is comfortable with enabling her to liaise with and, whenever appropriate, instruct Dechert on a day to day basis so as to ensure that it is able to carry out its role to the Company's satisfaction.”
'Although Dechert refers to ENRC's awareness of B2's shortcomings in July 2011, the first pleaded date comes in September 2011. Mr Ehrensberger had queried why B2 did not already have some "kit" and questioned whether the job might be too big for it. Mr Findlay say that in any event, the person closest to B2, and who would have had the most acute awareness of any shortcomings on its part, was Mr Gerrard...' - J/Para 1710: '
'Although Dechert refers to ENRC's awareness of B2's shortcomings in July 2011, the first pleaded date comes in September 2011. Mr Ehrensberger had queried why B2 did not already have some "kit" and questioned whether the job might be too big for it. Mr Findlay say that in any event, the person closest to B2, and who would have had the most acute awareness of any shortcomings on its part, was Mr Gerrard...' - Para 1710: '
“No breakdown/insufficient information” (2) Reason 2: “early on in instructions” (3) Reason 3: “Dechert had no control over the management of Herbert Smith” / “Dechert did not have control over HSF’s output” (4) Reason 4: “Disclosure with respect to HSF’s files and work products was limited due to ENRC’s assertion of privilege, therefore neither the Court nor Dechert have had access to working products, internal emails and the general file kept by HSF during the period which damages are being claimed” (5) Reason 5: “work undertaken in connection with reason 3 (CAMEC/Camrose acquisitions) are necessary and where quantum appears to be unreasonably high due to HSF hourly rates and utilisation of resources, [Dechert] should not be penalised.” (6) Reason 6: “A reduction for reason 4 (information and document requests sent to professional advisers) of 5% has been applied for the extraction of unnecessary fees, which also takes into account that ENRC has not set out how and / or what elements of this entry or subsequent entries satisfies their assertions under reason 4. Dechert disputes that reason 4 would result in a full removal of related fees in any event. This percentage also takes into account the lack of disclosure and vague narratives prepared by HSF fee earners.” (7) Reason 7: “Fees in connection with reason 5 have been extracted at either 30%; 35% or 50% to reflect the Judgment” (8) Reason 8: “Fees in excess of£2m appear to be excessive in light of the document requests and interactions between Dechert and HSF.”
“Reviewing files and emails to locate relevant correspondence regarding the submission of SAR to SOCA and circulation of SAR.” “Preparing a bundle with SAR-related correspondence following request from Paul Judge” “Review of note on SFO confiscation.” “Reviewing documents; responding to emails re Dechert inquiry”
“Responding to queries and carrying out searches for T Wood regarding Q.1.1.4 of Dechert's July 2012 Information Request in relation to Gough Aviation. Carrying out searches for R Weston in order to determine whether and what (e.g. worldcheck) checks were done on Vipar.”
“But for the relevant wrongdoing, there would have been a limited investigation (including in relation to Metalkol), which would not have re-done the due diligence on the acquisition (J/1317), would not have included a large-scale document review, and would have included only a limited number of interviews with professional advisers, members of the board and senior management. Some work would have been required on whether loans were “soft” and on the question of promissory notes, but this would have been limited:”
“I consider that the authorities establish the following propositions. (a) The fact and, if so, the extent of the diversion of staff time have to be properly established and, if in that regard evidence which it would have been reasonable for the claimant to adduce is not adduced, he is at risk of a finding that they have not been established. (b) The claimant also has to establish that the diversion caused significant disruption to its business. (c) Even though it may well be that strictly the claim should be cast in terms of a loss of revenue attributable to the diversion of staff time, nevertheless in the ordinary case, and unless the defendant can establish the contrary, it is reasonable for the court to infer from the disruption that, had their time not been thus diverted, staff would have applied it to activities which would, directly or indirectly, have generated revenue for the claimant in an amount at least equal to the costs of employing them during that time.”
“1 Entitlement to contribution. (1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise). 2 Assessment of contribution. (1) Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.”
“150 The relevant principles are not in doubt. Exemplary damages may be awarded in three categories of case: see per Lord Devlin in Rookes v Barnard[1964] AC 1129 . The category which is relevant for present purposes is that there has been “an arbitrary and outrageous use of executive power” (p1223) and “oppressive, arbitrary or unconstitutional action by servants of the government” (p1226). In this category of case, the purpose of exemplary damages is to restrain the gross misuse of power: see AB v South West Water Services Ltd[1993] QB 507 , 529F, per Sir Thomas Bingham MR. It must be shown that the “conscious wrongdoing by a defendant is so outrageous, his disregard of the plaintiff’s rights so contumelious, that something more [than compensatory damages] is needed to show that the law will not tolerate such behaviour “as a remedy of last resort” see Kuddus v Chief Constable of Leicestershire Constabulary[2002] 2 AC 122 , para 63, per Lord Nicholls… 166 Whether the high threshold for the award of exemplary damages has been crossed in any particular case is ultimately a matter of judgment. Opinions can reasonably differ on whether a defendant’s conduct has been so outrageous and so unconstitutional, oppressive or arbitrary as to justify the imposition of the penalty of exemplary damages. An appellate court should not interfere with the judgment of the court below unless that judgment is plainly wrong.”