NMC Health Plc (in administration) v Ernst & Young LLP [2025] EWHC 1048 (Comm)

[2025] EWHC 1048 (Comm)

Case No CL-2022-000218

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

COMMERCIAL COURT

Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NL

Date 02/05/2025

Before

Dame Clare Moulder DBE

Between

NMC HEALTH PLC (IN ADMINISTRATION)Claimant

ERNST & YOUNG LLPDefendant

Mr Simon Salzedo KC and Mr James Shaerf (instructed by Quinn Emanuel Urquhart & Sullivan UK LLP) for Claimant

Mr Laurence Rabinowitz and Ms Katherine Ratcliffe (instructed by Reynolds Porter Chamberlain LLP) for Defendant

Hearing Hearing dates:

14 April 2025

Approved Judgment

.............................

Dame Clare Moulder DBE:

Introduction

[1]This is the Court's judgment on the application by the Defendant, Ernst & Young LLP (“EY”) (the "Application") for discharge of the orders and undertakings as to confidentiality (the “Undertakings”) imposed pursuant to the Order of Henshaw J dated 14 February 2025, as varied by my Order dated 3 March 2025 (collectively, the "Confidentiality Ring Orders") in respect of:a. a settlement agreement dated 21 February 2022 between, inter alia, the Claimant, NMC Health PLC (referred to in this judgment as “the Claimant” or “NMC”), NMC Healthcare Limited (“LTD”), Saeed Bin Butti and Khaleefa Bin Butti (also known as Saeed Al Qebaisi and Khaleefa Almuhairi, respectively and together referred to in this judgment as the “Bin Buttis”) (the "Settlement Agreement"); and

b. documents relating to the claims giving rise to the Settlement Agreement and identified below (the "Bin Butti Claim Documents")

[2]As referred to below, EY applied to this Court for orders that NMC disclose the Settlement Agreement in September 2024 (the “Disclosure Application”). Picken J agreed that a request should be made to the Abu Dhabi Bankruptcy Court (the “Bankruptcy Court”) to permit disclosure to EY for the purposes of these proceedings and ordered the parties to do so. By an order of January 2025 the Bankruptcy Court permitted limited disclosure of the Settlement Agreement to individuals nominated by EY that joined a confidentiality club.

[3]A similar application was made in relation to the Bin Butti Claim Documents as directed by an order of this Court on 3 March 2025 but that application has yet to be determined by the Bankruptcy Court.

[4]The parties had agreed that EY’s application for disclosure and inspection of the Bin Butti Claim Documents (the “Bin Butti Claim Documents Application”) would not be heard at the hearing before this Court on 26 February 2025, but that if the request had not been determined, the Bin Butti Claim Documents Application would be restored at this hearing.

[5]The trial in this matter is due to commence on 19 May 2025 and the evidence is expected to last until the end of July 2025 with submissions to follow in September/October 2025.

Confidentiality

[6]This judgment is public. However some of the witness evidence before this Court was confidential. As a result of the decision in this judgment, subject to the following sentence, the evidence set out in this judgment relating to the Settlement Agreement is no longer to be treated as subject to the Undertakings. However the evidence of the administrators of NMC referred to below remains confidential and subject to further order of this Court, shall not be regarded as in the public domain notwithstanding any reference to that evidence in this judgment.

Background

[7]NMC was the London listed holding company of a substantial hospital and healthcare group primarily operating in the UAE (the “NMC Group”), with trading and operations being conducted through its subsidiaries.

[8]EY was the auditor of NMC's consolidated financial statements for 2012 to 2018.

[9]On 9 April 2020, NMC was placed into administration. Messrs Richard Fleming, Benjamin Cairns and Mark Firmin of Alvarez & Marsal were appointed as its administrators (the “Joint Administrators”).

[10]In September 2020, NMC Healthcare LLC (now LTD) and 34 other UAE subsidiaries were re-domiciled into the Abu Dhabi Global Market free zone (the "ADGM") and placed into administration. The application was granted by the ADGM Court (Sir Andrew Smith) on 27 September 2020. Messrs Fleming and Cairns were appointed as the ADGM Administrators.

[11]The NMC administration is ongoing.

[12]In July 2021 bankruptcy proceedings (the “Bankruptcy Proceedings”) were commenced in in UAE respect of Khaleefa Bin Butti (referred to in the relevant Bankruptcy Court documents as "the debtor") and various "joined litigants", including Saeed Bin Butti (referred to as "Joined Litigant No. 25"). A committee of trustees (the "Trustees") was appointed by the Bankruptcy Court to manage the bankruptcy and corporate restructuring.

[13]NMC originally submitted a claim in the Bankruptcy Proceedings but its claim was rejected. On the evidence before this Court it appears that the total claim by NMC and LTD was US$9.66 billion and this claim was compromised by the Settlement Agreement as referred to below. The parties to the Settlement Agreement were, on the one hand, the Bin Buttis plus 43 related entities, and on the other hand, a group of NMC entities, including NMC.

[14]The Bankruptcy Court approved the Settlement Agreement by an order of 14 March 2022 (the “Ratification Order”) which, as described in the Ratification Order, provided for releases of the Bin Buttis "concerning all claims, whether civil, criminal, or otherwise, both current and future, including a release from claims totalling AED 35,497,281,201 (USD 9.66 billion)."

Evidence

[15]The parties were given permission to file and serve evidence on UAE law.

[16]EY has filed two witness statements from Mr Ahmed Ramadan, Partner and head of the litigation group of Matouk Bassiouny's UAE offices.

[17]Mr Al Osaiba, a Senior Partner & Regional Head of Civil & Commercial Litigation Division at Global Advocacy and Legal Counsel, has provided three witness statements on behalf of NMC.

[18]I note that in his third witness statement Mr Al Osaiba acknowledged (paragraph 16.2) that his firm acted on behalf of NMC in relation to the Bankruptcy Proceedings. As such he cannot be regarded as providing independent evidence to the Court and to the extent that there is a conflict in the evidence of the two witnesses I give less weight to the evidence of Mr Al Osaiba.

EY’s position in outline

[19]In outline the position of EY on this Application that the Undertakings should be discharged for the following reasons:a. The English Court has jurisdiction to order production and inspection of documents (without confidentiality restrictions) regardless of the fact that compliance with the order would or might entail a breach of foreign criminal law: Bank Mellat v HM Treasury

[2019] EWCA Civ 449

at [63];

b. For such an order to involve a confidentiality club, the club must be justified by clear and cogent evidence: Cavallari v Mercedes-Benz

[2024] EWHC 190 (KB)

at [22]-[23];

c. There is no clear and cogent evidence that the Settlement Agreement and the Bin Butti Claim Documents are confidential as a matter of UAE law;

d. In any event, there is no clear and cogent evidence that there is a real risk that NMC or its Joint Administrators would face prosecution in the UAE for disclosure of the Settlement Agreement or the Bin Butti Claim Documents to EY in these proceedings; and

e. In any event, the terms of the Settlement Agreement expressly allow for disclosure in legal proceedings such as these and the Bin Butti Claim Documents have no agreed confidential status.

Relevant legal principles

[20]It was common ground that the relevant principles are to be found in Bank Mellat v HM Treasury

[2019] EWCA Civ 449

[21]At [2]-[3] of that judgment the Court of Appeal made it clear that the decision to be made is "a discretionary case management decision": "2. …On occasions, a tension can arise between the English law requirement for the inspection of documents and the provisions of foreign law in the home country of the litigant. 3. Where such a tension arises, it is for the Court to balance the conflicting considerations: the constraints of foreign law on the one hand, and the need for the documents in question to ensure a fair disposal of the action in this jurisdiction, on the other…".

[22]The principles were then set out in Bank Mellat at [63]:

"Pulling the threads together for present purposes: i) In respect of litigation in this jurisdiction, this Court (i.e., the English Court) has jurisdiction to order production and inspection of documents, regardless of the fact that compliance with the order would or might entail a breach of foreign criminal law in the "home" country of the party the subject of the order. ii) Orders for production and inspection are matters of procedural law, governed by the lex fori, here English law. Local rules apply; foreign law cannot be permitted to override this Court's ability to conduct proceedings here in accordance with English procedures and law. iii) Whether or not to make such an order is a matter for the discretion of this Court. An order will not lightly be made where compliance would entail a party to English litigation breaching its own (i.e., foreign) criminal law, not least with considerations of comity in mind (discussed in Dicey, Morris and Collins, op cit, at paras. 1-008 and following). This Court is not, however, in any sense precluded from doing so. iv) When exercising its discretion, this Court will take account of the real - in the sense of the actual - risk of prosecution in the foreign state. A balancing exercise must be conducted, on the one hand weighing the actual risk of prosecution in the foreign state and, on the other hand, the importance of the documents of which inspection is ordered to the fair disposal of the English proceedings. The existence of an actual risk of prosecution in the foreign state is not determinative of the balancing exercise but is a factor of which this Court would be very mindful. v) Should inspection be ordered, this Court can fashion the order to reduce or minimise the concerns under the foreign law, for example, by imposing confidentiality restrictions in respect of the documents inspected. vi) Where an order for inspection is made by this Court in such circumstances, considerations of comity may not unreasonably be expected to influence the foreign state in deciding whether or not to prosecute the foreign national for compliance with the order of this Court. Comity cuts both ways."

[23]It was submitted for the Claimant that the risk of prosecution is a much stronger reason to restrict disclosure than mere business confidentiality. It was submitted for the Claimant that Cavallari was about a very different situation where the disclosing party wished to protect commercial confidentiality and the confidentiality club in that case was limited so that it did not include the claimants themselves. It was submitted that that is an entirely different line of authority about whether you can carry on to trial with the confidentiality club that excludes one of the parties and that Cavallari is part of that line of authority.

[24]It was submitted for the Claimant that it was common ground that the relevant principles are to be found in Bank Mellat, and that is because the other side of the scales in this case, from open justice, is protecting the disclosing party and its individual officers from sanction for breaching the requirements of another court. It was submitted that in that type of case, a confidentiality ring, of the sort imposed in this case, is "entirely normal", and is justifiable in the interests both of "avoiding prejudice to the disclosing party", and also the interests of comity, as demonstrated by Bank Mellat itself.

[25]I do not accept having regard to the authorities that it is sufficient to show that such an order "is protecting a party from breaching the requirement of another court": the test is a real risk of a criminal prosecution not merely a breach of a requirement of another court. I also reject any inference that the balance tips in favour of a confidentiality ring in this type of case (i.e. not one where commercial confidentiality is in issue) on the basis that such a ring is "entirely normal". That would be to weight the discretion of the Court in a way which is not justified on the authorities.

[26]In Cavallari Cockerill J said that she would do a "fairly thorough review of the relevant law". I do not read that summary at [22] - [27] of her judgment as confined only to confidentiality clubs where what is issue is commercial information or confidentiality clubs where the parties are excluded and Mr Salzedo KC accepted in his oral submissions that Cockerill J in Cavallari did summarise “the overriding principle of open justice”.

[27]The relevant passages were as follows:

“22. The starting point as a matter of law is the principle of open justice. It is, as the Court of Appeal recently remarked in J.C. Bamford Excavators Ltd v Manitou UK Ltd [2023] EWCA Civ 840 at [71] a fundamental principle of English Law. The reasoning of the House of Lords in Scott v Scott [1913] AC 417 remains as sound today as it was then; as does the quote from Jeremy Bentham which they cite: "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial." 23. Open justice is also, as noted in Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38, [2020] AC 629 (per Lady Hale at [43]), vital to enable the public to understand how the justice system works, to understand the issues in cases and how, based on those issues, decisions are reached by the courts. 24. It follows from this that each party should generally have unrestricted access to the other's disclosure (see for example Hamblen J in Libyan Investment Authority v Société Générale SA [2015] EWHC 550 (QB) ("LIA") at [20]). All parties have the benefit of the protection offered by the collateral undertaking at r 31.22 CPR regarding the use of documents disclosed in the course of proceedings. In the vast majority of cases and for the vast majority of documents, the undertaking will be sufficient protection. 25. Confidentiality orders offering enhanced protection beyond the collateral undertaking are therefore "the exception rather than the rule" (per Christopher Clarke J in Porton Capital Technology Funds v 3M UK Holdings Ltd [2010] EWHC 114 (Comm) at [43]). 26. A confidentiality ring involves a departure from the open justice principle which must be justified. As Hamblen J made clear in LIA at [21] "It is for the person seeking the imposition of a confidentiality club to justify any departure from the norm" (see also Porton Capital at [43]). Any restriction should "go no further than is necessary" for the protection of the right in question (LIA at [21]-[22]). As Roth J explained in Infederation Limited v Google LLC & ors [2020] EWHC 657 (Ch) at [42]: "…the important points to emerge from the authorities are that: (i) such arrangements are exceptional; (ii) they must be limited to the narrowest extent possible; and (iii) they require careful scrutiny by the court to ensure that there is no resulting unfairness." 27. With that scrutiny in mind, the burden lies on those seeking to displace the application of the open justice principle to produce clear and cogent evidence to explain why that departure is justified: the "real risk" of the right of inspection being used for a collateral purpose. It must be shown that "by nothing short of the exclusion of the public can justice be done" (Scott v Scott [1913] AC 417, per Viscount Haldane at page 438, and per Earl Loreburn at page 446). The question is not one of convenience, but of necessity (Al Rawi v Security Service [2011] UKSC 34; [2011] 3 WLR 388 at [11])”

[emphasis added]

[28]In my view the authorities referred to above make clear that:a. The question whether or not to make an order is a matter for the discretion of this Court: Bank Mellat at [63(iii)];

b. The starting point as a matter of law is the principle of open justice: Cavallari at [22];

c. A confidentiality ring involves a departure from the open justice principle which must be justified. Cavallari at [26];

d. When exercising its discretion, this Court will take account of the real - in the sense of the actual - risk of prosecution in the foreign state: Bank Mellat at [63(iv)];

e. An order will not lightly be made where compliance would entail a party to English litigation breaching its own (i.e., foreign) criminal law, not least with considerations of comity in mind. The Court is not, however, in any sense precluded from doing so: Bank Mellat at [63(iii)].

[29]I also note as it is relevant to the discussion below in relation to the risk of prosecution, the following principles as to the Court's approach to foreign law evidence which were set out in Bank Mellat at [53]:

“i) In English private international law, foreign law is a question of fact, to be proved by a duly qualified expert in the law of that foreign country. The function of such an expert extends to both the interpretation and application of the foreign law. ii)The burden of proof rests on the party seeking to establish the proposition of foreign law in question. iii) Although the English Court will scrutinise the evidence adduced, it will not undertake its own researches into questions of foreign law, any more than it will into other questions of evidence. iv) When scrutinising evidence of foreign law, as on any other question of evidence, the Court is not inhibited from using its own intelligence and common sense. v) Where expert evidence on foreign law is uncontradicted, the Court "should be reluctant" to reject it and is not entitled to do so on the basis of its own research; however, as explained in Dicey, Morris and Collins (at para. 9-016): "….while the court will normally accept such evidence it will not do so if it is 'obviously false', 'obscure', 'extravagant', lacking in obvious 'objectivity and impartiality' or 'patently absurd' or if 'he never applied his mind to the real point of law' or if 'the matters stated by [the expert] did not support his conclusion according to any stated or implied process of reasoning'….Or, in other words, 'using its own intelligence as on any other question of evidence'…. "”. "….while the court will normally accept such evidence it will not do so if it is 'obviously false', 'obscure', 'extravagant', lacking in obvious 'objectivity and impartiality' or 'patently absurd' or if 'he never applied his mind to the real point of law' or if 'the matters stated by [the expert] did not support his conclusion according to any stated or implied process of reasoning'….Or, in other words, 'using its own intelligence as on any other question of evidence'…. "”

Open justice

[30]In my view the starting point on this Application is the principle of open justice. It is helpful to set out the principles of open justice as expressed by Lady Hale in Dring v Cape Intermediate Holdings Ltd

[2020] AC 629

(referred to in the judgment of the Court in Cavallari): “41 The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question... 42 The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. In A v British Broadcasting Corpn

[2015] AC 588

, Lord Reed JSC reminded us of the comment of Lord Shaw of Dunfermline, in Scott v Scott

[1913] AC 417

, 475, that the two Acts of the Scottish Parliament passed in 1693 requiring that both civil and criminal cases be heard with open doors, bore testimony to a determination to secure civil liberties against the judges as well as against the Crown (para 24). 43 But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties cases…”. [emphasis added]

[31]The Claimant accepted for the purposes of the Disclosure Application that the Settlement Agreement was relevant to the issues in these proceedings: the only issue was said to be that of confidentiality. However in NMC’s skeleton for this hearing it was submitted that the documents are only of “peripheral relevance” to the issues in this case and will not “play a major role” at the trial.

[32]The Claimant’s case is that a fraud was perpetrated on NMC by its senior officers named in the Particulars of Claim (the “POC”). The fraud is alleged on the Claimant’s case to have involved the transfer of assets by senior officers of the Company to connected parties and the individuals identified include the Bin Buttis.

[33]Thus paragraph 6 of the POC identifies the principal shareholders of NMC, including Messrs Saeed Al Qebaisi (ie Saeed Bin Butti) and Khaleefa Almuhairi, who, together with Dr. Shetty, held 66% of the NMC shares of the IPO 2012.

[34]Paragraph 9 refers to Khaleefa Butti Omair Yousif Almuhairi “also known as Khaleefa Bin Butti” and it identifies him as an executive director.

[35]Paragraph 23 summarises the alleged fraud as involving “the following key elements”: “The dissipation of funds to the Principal Shareholders and their related parties... the Revision Exercise identified payments to the following persons and entities in the following (net) amounts in the Relevant Period, which total at least US$1,956,783,000.(i) Dr Shetty – US$758,440,000.

(ii) Centurion (an Abu Dhabi sole proprietorship owned and controlled by Mr Al Qebaisi, and including entities in the KBBO Group) – US$675,009,000.

(iii) Other related parties (of which Dr Shetty, Mr Al Qebaisi, and/or Mr Almuhairi or their relatives or nominees were direct or indirect shareholders) – US$523,333,000…”.

[36]It is clear therefore on the pleadings that the fraud is alleged, on NMC's own case, to have been committed by amongst others, the Bin Buttis and it is alleged that parties connected to them were among the principal alleged beneficiaries of the fraud.

[37]The Claimant’s case in these proceedings in essence is that the fraud should have been identified by EY in the course of its audit and the Claimant alleges negligence on the part of EY.

[38]As to the potential significance of the Settlement Agreement to the issues at trial the nature of this agreement can be seen from the Ratification Order which approved the Settlement Agreement.

[39]The Settlement Agreement is described in the recitals as: “the proposed agreement between the NMC Group of Companies, the Debtor, Joined Litigant 25 Saeed Al Qubaisi, and other joined litigants”.

[40]The Bankruptcy Court approved the Settlement Agreement on the basis of a memorandum submitted to the Court by the Claimant and the Trustees, which gave details of the agreement and the proposed transfer of assets to the NMC Group in exchange for the release of claims against the Bin Butts. The recitals to the order read as follows: “The committee assessed the proposed settlement agreement, its appendices, and the accompanying schedules, which listed the various companies mentioned in the agreement. After evaluating the presented agreements, including subscription prospectuses and other relevant documents, the committee concluded that all companies and real estate in the settlement were owned by NMC Group, along with its hospitals and subsidiaries. Additionally, it was established that the group and its subsidiaries fully funded these assets from their own resources. associated with the settlement belonged to NMC Group, its subsidiaries, and its hospitals. The registration of ownership in the names of the Debtor and Joined Litigant 25 was done on behalf of NMC Group and its associated entities to meet property ownership requirements under the prevailing laws at that time. Therefore, these assets and real estate are not included in the financial liabilities of either the Debtor or Joined Litigant 25. ⎯Both the Debtor and Joined Litigant 25 conveyed their willingness to return ownership of the assets to NMC Group by transferring ownership to a third party, following explicit directives from the administrators of NMC Group (acting under their authority), in exchange for mutual and comprehensive releases concerning all claims, whether civil, criminal, or otherwise, both current and future, including a release from claims totaling AED 35,497,281,201 (USD 9.66 billion).” ⎯ Under the Federal Decree-Law on Bankruptcy, the legislator has granted the Debtor complete freedom to manage and dispose of assets owned by third parties, regardless of any Rulings or rulings to commence proceedings, as outlined explicitly in Paragraph 2(b) of Article 158. This provision clarifies that the prohibition against management and disposal does not apply to assets owned by parties other than the Debtor. Thus, the Debtor may dispose of assets and real estate that are not owned by them or Joined Litigant 25, returning them to their rightful owners, who are the legitimate proprietors”. [emphasis added]

[41]Thus it appears that on the one hand the Bankruptcy Court proceeded on the basis that the assets were not owned by the Bin Buttis but on the other that the transfer of the assets back to the NMC Group which were in any event not owned by the Bin Buttis should be in consideration of the release of claims by the administrators of the NMC Group against the Bin Buttis totalling USD9.66 billion.

[42]It is clear therefore that evidence concerning the transfer of assets identified in the Settlement Agreement may well be relevant to understanding the fraud and to issues of causation on the alleged negligence of EY.

[43]The evidence concerning the consideration for the release of the claims against the Bin Buttis in the Settlement Agreement is also likely to be highly relevant to the defence of mitigation which is raised by EY at paragraph 116(3) of the (draft amended) Defence:

“Pursuing all properly or reasonably arguable claims against any individuals or entities, in whatever jurisdictions they are located, who (i) are responsible for; (ii) are implicated in; or (iii) benefited from the fraud perpetrated on the NMC Group.”

[44]Although I accept that the Settlement Agreement will be before the Court at trial even if this application is refused, the matters referred to above demonstrate why the evidence in relation to the Settlement Agreement is likely to be a significant piece of the evidence. Accordingly when deciding whether the trial should be conducted on the basis of the Settlement Agreement (and the related Bin Butti Claim Documents) being subject to confidentiality restrictions, I have to consider both the principles of open justice as well as the case management imperative of applying the overriding objective which includes ensuring that it is dealt with expeditiously and fairly.

[45]As referred to above, the purpose of open justice is: “to enable public scrutiny of the way in which courts decide cases and also to enable the public to understand how the justice system works and why decisions are taken”.

[46]In my view the public will be severely hampered if the Settlement Agreement (and the related Bin Butti Claim Documents) is not able to be referred to in open court. It will make it difficult for the public understand the issues to which the Settlement Agreement is likely to be relevant which for the reasons set out above are both mitigation and possibly wider issues of breach of duty.

[47]The second matter which I take into account is the linked consideration of the management of the trial if in fact the confidentiality ring is maintained. The hearing of this Application which was held partly in private to observe the confidentiality restrictions demonstrated that it is far from satisfactory for members of the public who wish to follow the proceedings to be asked to leave the Court on more than one occasion even during a single day. It makes it difficult for the public to understand the case which is being advanced. It was also in my view an inhibition on the presentation of counsels’ submissions and to a degree on questions from the Court, as counsel and the Court sought to avoid inadvertent references to confidential matters. This difficulty is likely to be magnified at trial when matters related to the Settlement Agreement may need to be raised at different points throughout this lengthy and complex trial.

Real risk of prosecution

[48]“[The] burden lies on those seeking to displace the application of the open justice principle to produce clear and cogent evidence to explain why that departure is justified” (Cavallari at [27]). In this case that means that if there is to be a derogation from the principle of open justice by reason of the risk of prosecution in the UAE, the risk must be shown to be a real or actual risk.

Court orders in UAE

[49]NMC relied on four orders of the Bankruptcy Court to support its case that the confidentiality restrictions should remain in place:a. An order of the Bankruptcy Court dated 29 December 2021 (the "December 2021 Order");

b. A "Decision Memorandum" issued by the Bankruptcy Court dated 13 February 2022 (the “February 2022 Decision” and together with the December 2021 Order, the “Bankruptcy Court Orders”);

c. A "note" on the Bin Butti Bankruptcy Proceedings court file dated 17 March 2022 (the “March 2022 Notice”);

d. A decision of the Bankruptcy Court dated 23 January 2025 (the "January 2025 Decision").

[50]It was submitted for NMC (skeleton paragraph 28) that whilst EY contends that Bankruptcy Court Orders do not apply to the Settlement Agreement and that there is no restriction under UAE law on their disclosure or use in these proceedings, the Bankruptcy Court has ordered that it considers that confidentiality restrictions apply to the Settlement Agreement, irrespective of its terms and that these apply to NMC. NMC relied on:a. “the plain text” of the Bankruptcy Court Orders and the 17 March 2022 note on the Bankruptcy Court portal, which NMC submitted imposed confidentiality restrictions on all creditors, parties, and persons otherwise interested in the Bankruptcy Proceedings; and

b. the application made to the Bankruptcy Court by the Trustees on 2 January 2025 and the January 2025 Decision, each of which state expressly that disclosure of the Settlement Agreement to EY is being authorised only on the premise that the documents remain subject to the confidentiality restrictions that were imposed by the Bankruptcy Court Orders (and that there are to be no further derogations without the Bankruptcy Court's further authorisation).

[51]The Court therefore needs to consider:a. the Bankruptcy Court Orders and the expert evidence as to the meaning and effect of those orders; and

b. whether, if the Bankruptcy Court Orders do impose a confidentiality restriction which applies to NMC and the Settlement Agreement, breach would lead to a real risk of prosecution under Article 313(7) of the Federal Decree-Law No. 31/2021 (“Article 313(7)”).

[52]As to the meaning and effect of the orders, as referred to above, NMC implicitly if not explicitly accepted in its submissions that the January 2025 Decision authorised disclosure only on the premise that the documents remain subject to the confidentiality restrictions that were imposed by the Bankruptcy Court Orders and thus the issue of interpretation of that restriction is the same in both the Bankruptcy Court Orders and the January 2025 Decision.

[53]It was submitted for the Claimant that there is no two stage test as suggested by EY to show first a criminal statute and then a risk of prosecution. It was further submitted for the Claimant that the Court did not have to decide a “hard-edged” question of onshore UAE law as to whether or not NMC would be liable in particular circumstances, but to decide whether there is a real risk of prosecution.

[54]I accept that, as stated in Bank Mellat at [70] (below) the issue of a real risk or an actual risk of prosecution in UAE involves an inquiry “clearly distinct” from one going to UAE law. However it seems to me that this Court's determination of the risk of prosecution has to be premised on a finding that there is a (criminal) law in the UAE which could give rise to a real risk of prosecution if the confidentiality restrictions in relation to the Settlement Agreement are lifted by this Court. This seems to me to be consistent with the approach of Cockerill J at first instance in Bank Mellat and approved in the judgment of the Court of Appeal at [70]:

“… In my view, the actual risk of prosecution in Iran involves an inquiry clearly distinct from one going to Iranian law or even the interpretation and application of Iranian law. I am therefore unable to agree that Dr Kakhki's expert evidence (without more) was determinative on this question. The mischief of this Court conducting its own research on questions of foreign law is far removed from the inquiry here as to the actual risk of prosecution in Iran - an altogether more mundane and, essentially, factual question. It is, next, important to distinguish between (a) the question whether production of the Iranian documents unredacted to the confidentiality club would, absent a permissive Iranian Court order, give rise to a breach of Iranian criminal law and (b) the actual risk of prosecution in Iran. The Judge accepted (at [94]) that such conduct would constitute a breach of Iranian (criminal) law. As already suggested, it is not at all clear that question (b) did fall within Dr Kakhki's expertise; if so, the Judge was plainly not constrained by his evidence as to the conclusions open to her. However, even insofar as the actual risk of prosecution involved a question of Iranian law and falls within Dr Kakhki's area of expertise, it is to be recollected that the burden rests on the Bank to establish the relevant risk and that the Court is entitled to use its own intelligence in scrutinising that evidence.”

[emphasis added]

[55]I also accept that the authorities indicate that the Court is concerned with the risk of prosecution and not the actual sanction. Nevertheless if the risk is to be weighed it seems to me that the Court has to evaluate whether the risk is real and thus to be able to identify the (criminal) law, breach of which gives rise to a real risk of prosecution.

[56]This again is supported by the Court of Appeal judgment in Bank Mellat at [69]:

"Secondly, I would reject the criticism of the Judge that she had misunderstood the relevant risk. Thus, the Judge made express reference to the risk of prosecution (at [94]). Though there and elsewhere (at [85]), she referred to the risk of "sanction", the most relevant authorities (Morris and Servier, together with Brannigan) were before her and were carefully considered (at [48] - [50] and [80] - [82]). It is noteworthy that, at [50], the Judge referred in terms to the question relevant to the Court's discretion being "how real any risk of prosecution in the foreign state is found to be"

. I am accordingly satisfied that the Judge had well in mind that the risk with which she was concerned was the risk of prosecution, rather than subsequent sanction…". [emphasis added]

[57]Further I note that, as referred to below and acknowledged in NMC 's skeleton for this hearing (paragraph 13), when EY made its Disclosure Application in September 2024 that Disclosure Application was resisted by NMC on the basis that disclosure of the Settlement Agreement was prohibited by the Bankruptcy Court Orders and would result in NMC and its officers being at risk of criminal prosecution in the UAE under Article 313(7).

[58]That led to both parties serving evidence on UAE law (Ramadan 1 on behalf of EY and Al Osaiba 1 on behalf of NMC) in advance of the hearing of EY's application before Picken J.

[59]It was Mr Al Osaiba's evidence (paragraph 15) that:

"…both the December 2021 Order and February 2022 Order refer to any breach of confidentiality resulting in "legal liability"

. This is a reference to liability arising under Article 313/7 of the Federal Decree-Law No. 31/2021. Any breach of Article 313/7 is a criminal offence and can result in "a penalty of incarceration for a period not exceeding two years or a fine"." [emphasis added]

[60]Thus Article 313 (7) was clearly identified and relied on by the Claimant to resist the Disclosure Application.

December 2021 Order

[61]The December 2021 Order was on its face the approval of an application made by a party identified as Salem Mohammed against the respondent named as One Prepay Company.

[62]At the end of the order the following is stated:

"A general warning to everyone: It is forbidden to copy or circulate documents in the bankruptcy file, especially those related to the present application, relating to NMC Group. Whoever violates this shall be subject to legal liability. We warn the Case Management Department - the lawyers and their firms - and those who have the power to review the file of this warning to avoid being held liable."

[63]I note that on its face:a. although the relevant passage in the Order says that it is "a general warning to everyone" NMC is not expressed to be a party to the application;

b. the prohibition appears to be confined to the copying or circulation of documents "in the bankruptcy file".

[64]The Settlement Agreement was a document which was held by NMC and it did not have to copy it from the Bankruptcy file in order to provide it to EY.

[65]The evidence of Mr Al Osaiba in his first witness statement (paragraph 17) is that the Settlement Agreement is a document on the file of the Bankruptcy Proceedings. His evidence was that: “It is not relevant whether a party possesses a copy of a document subject to the Confidentiality Orders independently of the court file - it would defeat the purpose of the Confidentiality Orders if NMC could disclose documents subject to those orders merely because it had a copy in its possession without needing to access the court file” (paragraph 15.2 of his second witness statement).

[66]This evidence seems to assume that which it sets out to prove - namely that the documents on the file are confidential in all circumstances and the restriction is not limited to copying and circulating documents on the bankruptcy file – without giving any reasons for that conclusion.

[67]Mr Ramadan’s evidence in response (paragraph 15.3 of his second statement) was that:

“It is evident from the wording of the January 2025 Decision that the Abu Dhabi Bankruptcy Court is concerned with the access to and distribution of documents from the Bin Butti Bankruptcy Court File. I continue to believe that it is relevant that NMC holds a copy of the [Settlement Agreement] independently of the Bin Butti Bankruptcy Court File and would not be dependent on access to the Court File in order to provide a copy of it. I disagree with paragraph 15.2 of Osaiba 2 on this point.”

Bankruptcy Court is concerned with the access to and distribution of documents

from the Bin Butti Bankruptcy Court File. I continue to believe that it is relevant

[68]NMC relied (skeleton paragraph 40) on the evidence of Mr Al Osaiba in his third witness statement (paragraph 27):

“…the Bankruptcy Court must be aware that NMC has a copy of the Settlement Agreement independent from the Court file and I do not believe that the Bankruptcy Court would have made the January 2025 Order in the terms it did if it considered that the [Bankruptcy Court Orders] applied only to documents that were obtained directly from the court file.”

[69]The January 2025 Decision (set out below) refers back to the restrictions in the December 2021 Order. In my view the evidence of Mr Ramadan as to the limited scope of the prohibition is consistent with the natural meaning of the language in the December 2021 Order. I do not accept Mr Al Osaiba’s unreasoned evidence as to the purpose of the prohibition. As to the significance of the January 2025 Order in this regard, I do not accept that any such conclusion can be drawn from the terms of the January 2025 Order given that, as explained below, the Order reflected the application that was made to the Bankruptcy Court.

[70]Mr Ramadan also took the view that NMC was not bound by the Orders because it was not a party to the Bankruptcy Proceedings. Mr Ramadan’s evidence (paragraph 14.1 of his first witness statement) was that:

“I do not believe that as a matter of UAE law any such restrictions could be said to bind persons or entities which are not party to those bankruptcy proceedings.”

[71]Mr Al Osaiba responded directly to that evidence (at paragraph 20.1 in his first witness statement) stating that NMC was bound as a creditor in the Bankruptcy Proceedings:

“20.1 …As I noted above, NMC is a creditor in the Bankruptcy Proceedings. The orders are accessible to the parties to the Bankruptcy Proceedings and to the creditors to whom the court has provided access to the Bankruptcy Proceedings (however I note NMC has not been granted this access to the Bankruptcy Proceedings). As a creditor I believe the confidentiality restrictions still apply to NMC.”

[emphasis added]

[72]In oral submissions for the Claimant it was submitted that the argument that NMC is not a party to the Bankruptcy Proceedings was an “absurd point”: that any person who claims to be a creditor will have to submit to the jurisdiction of that court to take part in the insolvency; that is exactly what happened, and it resulted in the Settlement Agreement.

[73]I cannot see how this submission resolves the issue as to whether NMC was bound by restrictions contained in orders of the Bankruptcy Court in relation to applications to which NMC was not a party and where at the time of the orders the Claimant was not a creditor in the Bankruptcy Proceedings.

[74]The evidence of Mr O’Rourke (a partner of Quinn Emanuel Urquhart & Sullivan UK LLP acting for the Claimant) is that the Claimant’s claim in the Bankruptcy Proceedings was rejected by the Bankruptcy Trustees and its grievance filed with the Bankruptcy Court was dismissed in December 2021. NMC prepared a further appeal of the rejection of its Bankruptcy Claim, but this was not filed.

[75]Mr Al Osaiba in his third witness statement stated (paragraph 16.1) that NMC became a party to the Bankruptcy Proceedings when it submitted its claim to the Trustees appointed in the Bankruptcy Proceedings (in September 2021). His evidence was that: “…At all times NMC remained a party to the Bankruptcy Proceedings”.

[76]It appeared to be common ground that at the time of the Bankruptcy Court Orders NMC’s bankruptcy claim had been rejected. It is difficult to see that NMC was at that time “a creditor in the Bankruptcy Proceedings”- the point relied on by Mr Al Osaiba in his second witness statement. Mr Al Osaiba appears implicitly to acknowledge this in his third witness statement as he seeks to rely on the Ratification Order for his conclusion:

“…As EY is aware that claim was rejected and was subject to a further appeal by NMC. However the Bankruptcy Court acknowledged NMC’s status as a creditor when it ratified the Settlement Agreement (to which NMC is a party) in March 2022. At all times NMC remained a party to the Bankruptcy Proceedings.”

[emphasis added]

[77]In its skeleton for this hearing it was submitted for the Claimant that “NMC’s status as a creditor was confirmed in the Ratification Order”.

[78]In oral submissions Mr Salzedo KC sought to clarify that what the Claimant meant by this submission was that by the Bankruptcy Court ratifying the Settlement Agreement that would protect the Claimant from claims by other creditors or anybody else. It was submitted for NMC that NMC was a creditor by virtue of the fact that it had a claim that was settled by the Settlement Agreement.

[79]However in my view the issue so far as the Bankruptcy Court Orders are concerned is whether NMC was a creditor in the Bankruptcy Proceedings. If the Orders of the Bankruptcy Court apply to creditors that must mean creditors in the Bankruptcy Proceedings and I cannot accept that the confidentiality restrictions apply to NMC whose claim had been rejected by the Bankruptcy Court and was not therefore a creditor in the Bankruptcy Proceedings. I am not persuaded that the ratification of an agreement between the debtor and others who are not creditors in the Bankruptcy Proceedings brings NMC within the scope of the Bankruptcy Court Orders.

[80]In his third witness statement Mr Al Osaiba said: “..I do not agree that the Confidentiality Orders do not bind non-parties” and he referred to the fact that the warning was stated to be: “A general warning to everyone”.

[81]This seems to be reflected in NMC’s submission referred to above that the Bankruptcy Court Orders extended to “persons otherwise interested in the Bankruptcy Proceedings”.

[82]Given the way in which Mr Al Osaiba’s evidence appears to change over his three statements and, as referred to at the outset, Mr Al Osaiba cannot be regarded as an independent expert, I prefer the evidence of Mr Ramadan on the issue of who is bound by the Bankruptcy Court Orders.

[83]It is therefore in my view unlikely that the prohibition relied upon in the December 2021 Order would extend to NMC in circumstances where NMC held the Settlement Agreement independently of the Bankruptcy file and NMC was neither a creditor in the Bankruptcy Proceedings nor a party to the application.

February 2022 Decision

[84]The February 2022 Decision on its face is a decision on an application by Bin Butti Investments LLC against One Prepay Company.

[85]The February 2022 Decision contains the same "general warning to everyone" that appeared on the face of the December 2021 Order.

[86]The same considerations therefore apply as set out above.

[87]The February 2022 Decision contained an additional warning that information “concerning the restructuring procedures in the present file shall not be disseminated and circulated outside the limits of what is required under Federal Decree-Law No. (9) of 2016 concerning Bankruptcy and its amendments and Federal Law No. (23) of 1991 on the Regulation of the Legal Profession and its amendments, as well as the legislations in force” but there is no reference to any criminal statute.

[88]Thus after the “general warning” the February 2022 Decision refers to two applications made by Al Tamimi and Company and BSA and Associates, in their capacity as representatives of creditors. Having referred to the rights of creditors to obtain information related to the conduct of proceeding and the duties of lawyers to have discussions with their clients, it states:

“In order to protect the interests of the debtor, the Joined Litigants, the creditors and those who have interest in the proceedings, it was decided to warn of the following: 1-The validity of the prohibition and decision in Request No. (5195641347-1) dated 29/12/2021 in relation to NMC Group and all that is related to its debt towards the debtor and any of the Joined Litigants. 2-Unless a decision is issued concerning the confidentiality of any piece of information or document, everyone must be warned that all the information concerning the restructuring procedures in the present file shall not be disseminated and circulated outside the limits of what is required under Federal Decree-Law No. (9) of 2016 concerning Bankruptcy and its amendments and Federal Law No. (23) of 1991 on the Regulation of the Legal Profession and its amendments, as well as the legislations in force.”

[emphasis added]

[89]The Claimant in its submissions did not appear to rely on this part of the February 2022 Order as establishing that breach of the February 2022 Order would engage Article 313(7) and I note that Mr Al Osaiba stated in his evidence that: “…I do not consider these additional laws relevant to my assessment above that NMC is restricted from disclosing the [Settlement Agreement]…” (paragraph 20.4 of his first witness statement).

March 2022 Notice

[90]The March 2022 Notice was a note on the Bankruptcy Court case portal.

[91]Mr Ramadan’s evidence was that the translation provided by NMC was inaccurate and has included a reference to "documents" which does not appear in the original Arabic text, which instead refers only to the "Assets List". His corrected translation, which deleted the additional text that does not appear in the original Arabic read: "Assets List Warning: not for publication and circulation and only for the court".

[92]Mr Al Osaiba’s evidence (paragraph 13.3 of his second witness statement) is that he did not have access to the application that gave rise to the order but he nevertheless states that this “Order reaffirms the effect of the [Bankruptcy Court Orders]”.

[93]In its skeleton NMC submitted that the March 2022 Notice makes clear that the Bankruptcy Court considers that the asset list appended to the Settlement Agreement contained information regulated by the Confidentiality Orders, i.e. relating to the bankrupt’s financial position.

[94]In my view this note by its terms adds nothing additional by way of support for the arguments raised by the Claimant that the Bankruptcy Court Orders imposed confidentiality restrictions on NMC and disclosure by NMC of the Settlement Agreement and the expert evidence gives no basis for a different conclusion.

January 2025 Decision

[95]An application was made by the Trustees to the Bankruptcy Court to allow certain individuals nominated by EY access to the Settlement Agreement. The decision of the Bankruptcy Court in response to this application was the January 2025 Decision.

[96]It read as follows:

"Whereas the Court had previously decided on 14/03/2022 to approve the Settlement Agreement signed between the Trustees on behalf of the Debtor, the Joined Litigants and their subsidiaries, and NMC Group dated 21/02/2022 and signed based on the Letter of Understanding dated 16/12/2021. The Court then decided to forbid the copying or circulation of the documents in the Bankruptcy File, especially those related to NMC Group. Violating this shall subject the concerned parties to legal liability. The Case Management Office - the lawyers and their firms - and those who have the power to review the File are warned about the necessity of complying with this decision in order to avoid being held liable. [ ] The Trustees request permitting a specific group from Ernst & Young (EY) to access the Settlement Agreement and its attachments in accordance with the procedures and order mentioned in the request, with an emphasis on maintaining the confidentiality ofthe Settlement Agreement pursuant to the provisions of the Decision issued by the Court. As such, it was decided: First: To grant permission to a specific group from Ernst & Young (EY) to review the Settlement Agreement and its attachments which was signed between NMC Health Care LLC, the Debtor, and the Joined Litigant No. 25 in accordance with the procedures referred to in the present electronic request. Second: To warn all, and in particular the individuals who have access to the information of the procedures in the present file (individuals considered to have access to the information include the lawyers, consultants, and people working with them, as well as anyone who has authority over the File or has reviewed its documents and procedures) to continue to maintain confidentiality and of the validity of the prohibition of copying or circulating the documents related to the Settlement signed between the Trustees on behalf of the Debtor and the Joined Litigants and their subsidiaries, and NMC Group, dated 21/02/2022, and signed based on the Letter of Understanding dated 16/12/2021 and its annexes and the documents related thereto."

[emphasis added]

[97]It was submitted for the Claimant that the UAE Court clearly thought that the Settlement Agreement was within its confidentiality decision: that is why it allowed this one on the terms it did.

[98]I do not find this argument persuasive in leading to a conclusion that the Undertakings should remain in these proceedings. It appears from the evidence of the application that was made which led to the January 2025 Decision that the application was made to the Bankruptcy Court for an order in these terms. I accept that there is reference to the previous Bankruptcy Court Orders and that was expressly continued by the second paragraph of the Decision but it leaves open the question as the scope of the “confidentiality decision” that existed by virtue of those previous orders. The January 2025 Decision did authorise disclosure only on a limited basis and did refer to a continuing need to “maintain confidentiality”. However given the terms of the application to the Bankruptcy Court, the limits of the previous orders were not in issue before the Bankruptcy Court and no application was made for unrestricted disclosure for the purposes of these proceedings. There is no finding by the Bankruptcy Court that the orders of the UAE Court were intended to extend to documents which were already held by NMC including the Settlement Agreement. In my view no support can be drawn from the terms of the January 2025 Decision to infer that the Bankruptcy Court would not have permitted NMC to disclose the Settlement Agreement in the English proceedings without a confidentiality club being required had the relevant arguments been put before the Bankruptcy Court.

[99]The Claimant also relied on the fact that the Bankruptcy Court has refused two previous orders, as showing that the Bankruptcy Court "clearly thinks that the Settlement Agreement is within its confidentiality decision".

[100]I understand this submission to be a reference to applications made in the Sayacorp proceedings which were proceedings before the courts in the ADGM. In particular there was an application made by LTD to the Bankruptcy Court in February 2024 to be permitted to disclose the Settlement Agreement which was refused.

[101]It appears on the evidence that at a subsequent hearing in the ADGM, Sir Andrew Smith J accepted Sayacorp's criticism that the application had not explained the context in which disclosure was requested and was therefore doomed to fail from the start.

[102]Despite relying on the observations of Sir Andew Smith J in course of the previous case management hearing in the context of comity (as discussed below), Mr Salzedo KC for the Claimant submitted that on this occasion this Court did not need “to revisit whether criticism suggested in the course of argument by a foreign court or a party who is not before this court was justified or not.”

[103]In my view it appears from the observations of Sir Andrew Smith J that there was no proper attempt to explain to the Bankruptcy Court the reason behind that application.

[104]In any event the Bankruptcy Court was concerned with an application by LTD and the matters relied on by EY in support of this Application as to the scope of the Bankruptcy Court Orders were not determined by the Bankruptcy Court. The refusal in that case does not therefore establish that if this Court were now to order unrestricted disclosure of the Settlement Agreement that would breach the Bankruptcy Court Orders.

[105]For the same reasons, to the extent that this Court is concerned with due respect for the principle of comity, that application does not assist this Court as to what view the Bankruptcy Court may take of an order of this Court for the unrestricted disclosure of the Settlement Agreement by NMC given the relevant considerations for this Court at this stage of the proceedings.

[106]It was submitted for the Claimant that the Bankruptcy Court, having been told, in terms, and in detail, that if it releases this document it will go into a confidentiality club, if it then turns out that that is not what is going to happen at all, and that NMC as the party that is before it in relation to the Settlement Agreement, is the person, and its officers, who are likely to be “in trouble” over it.

[107]Leaving aside the point that in January 2025 the Bankruptcy Court was only asked to approve a limited form of disclosure, in my view it is not enough to establish a real or actual risk of prosecution to suggest that NMC or its officers are “likely to be in trouble” unless NMC can show clear and cogent evidence of a risk of prosecution and in my view that presupposes that there is a provision of UAE criminal law which is engaged. I turn therefore to consider Article 313(7).

Article 313(7)

[108]Article 313 (7) (so far as relevant) states:

"A penalty of incarceration for a period not exceeding two years or a fine shall be imposed on anyone who, by any means of publicity, publishes: 1.News in respect of a current investigation into a crime or any of the documents relevant to such investigation, if the investigation authority has prohibited the publication of any such news. … 7.News in respect of lawsuits which courts have decided to hear in secret sessions or which they have prohibited their publication."

[109]It was submitted for the Claimant that although the evidence is an official translation that it is nevertheless “not the greatest translation in the world”. It was submitted that in reading subparagraph 1 ("News in respect of a current investigation into a crime or any of the documents relevant to such investigation, if the investigation authority has prohibited the publication of any such news"), the word "news" should not be read narrowly but as referring to "information". Thus it was submitted that Article 313(7) is saying that if the court has prohibited the publication of certain information, then it is a crime to do so. It was submitted that it is the same as contempt of court in the English Courts for disobeying a court order. In the UAE, if it is an order against publication of certain information, then that is a breach of Article 313(7).

[110]There is no such reasoning in the expert evidence of Mr Al Osaiba by reference to the language of Article 313(7). In his first witness statement Mr Al Osaiba merely states that the confidentiality orders issued by the Bankruptcy Court “constitute a prohibition of publishing such news” (paragraph 21).

[111]Further, even if Counsel for the Claimant is correct in his submission that the word "news" should be construed as referring to “information”, there is no express statement on the face of the Bankruptcy Court Orders that:a. the publication of information about the Bankruptcy Proceedings is prohibited (as opposed to certain documents); or

b. that Article 313(7) is thereby engaged.

[112]In his second witness statement Mr Al Osaiba’s evidence (paragraph 15.1) is that certain documents on the Bankruptcy file are not subject to the confidentiality restrictions: “As should be apparent certain documents on the file of the Bankruptcy Proceedings that serve to inform stakeholders about the restrictions that apply and do not relate to the restructuring procedures are not subject to the Confidentiality Orders for example the Confidentiality Orders themselves and the applications made by [LTD] which I understand have been disclosed to NMC (those applications do not contain information about the restructuring procedures or the NMC group)…”.

[113]This evidence does not sit well with the language of the prohibition in Article 313(7) which (even if it is read as referring to “information” rather than news) refers to a prohibition on publishing information in respect of lawsuits, rather than selected information.

[114]I further note that the evidence of Mr Ramadan in his second statement (paragraph 23.5) is that:

“…the step which NMC would be taking in disclosing the [Settlement Agreement] (and the [Bin Butti Claim Documents]) to EY within the English proceedings would not amount to "publishing" the [Settlement Agreement] (or [Bin Butti Claim Documents]) for the purposes of that Article 313.”

[115]Mr Al Osaiba in his third witness statement (which responds to points made by Mr Ramadan in his second witness statement) responded (paragraph 40.5):

"Even if disclosure to EY was to be subject to a restriction that EY only use the document for the purpose of the proceedings, I believe that disclosure of the Settlement Agreement would still be considered "publishing" under Article 313/7."

[116]However there is no reasoning to support this statement.

[117]In his first witness statement (paragraph 15) Mr Al Osaiba states that that the reference to “legal liability" in the Bankruptcy Court Orders is a reference to Article 313(7): “…both the December 2021 Order and February 2022 Order refer to any breach of confidentiality resulting in "legal liability". This is a reference to liability arising under Article 313/7 of the Federal Decree-Law No. 31/2021. Any breach of Article 313/7 is a criminal offence and can result in "a penalty of incarceration for a period not exceeding two years or a fine”. [emphasis added]

[118]At paragraph 16 of his first witness statement Mr Al Osaiba stated that:

“In accordance with Article 313/7 any party that discloses or mishandles confidential information related to the Bankruptcy proceedings may face legal consequences which could include sanctions penalties or other forms of legal action as stipulated by the law.”

[119]The difficulty with this evidence is that Mr Al Osaiba states that the Bankruptcy Court Orders “refer to any breach of confidentiality resulting in "legal liability"” whereas the orders in question make no reference to a breach of confidentiality but only to a prohibition on copying or circulating documents in the bankruptcy file:

“It is forbidden to copy or circulate documents in the bankruptcy file, especially those related to the present application, relating to NMC Group. Whoever violates this shall be subject to legal liability.”

[120]In his second witness statement at paragraph 14 Mr Al Osaiba made a notable change to this evidence and modified his earlier statement to omit the statement that Bankruptcy Court Orders “refer to any breach of confidentiality resulting in "legal liability"” [emphasis added] such that the relevant statement then read:

"…The December 2021 Order and February 2022 Order explicitly refer to a breach resulting in "legal liability"

[121]There is no reasoning by Mr Al Osaiba to explain how the language in Article 313(7) which refers to a prohibition on publication of [information] in respect of lawsuits (the language being “[information] in respect of lawsuits which courts … have prohibited their publication”) can apply to the prohibition in the Bankruptcy Court Orders which on its face and by its terms was a narrow prohibition limited to copying or circulating documents in the Bankruptcy file and was not a prohibition on disclosing information about the proceedings.

[122]It was submitted by leading counsel for the Claimant that: “it is both obvious and unsurprising that if you disobey an order of a court, including, in particular, an order not to disclose certain information, you may be subject to a penalty”.

[123]It was further submitted for NMC that: “the words “Whoever violates this shall be subject to legal liability” must mean something”.

[124]However it is clear on the English authorities that in relation to the risk of prosecution it is not enough to show that there is a consequence to a breach of a court order or that it may give rise to a penalty. Even if the Bankruptcy Court Orders amounted to an order which had the effect of preventing NMC from disclosing the Settlement Agreement, in my view there is no clear and cogent evidence that under UAE law breach of those provisions in the Bankruptcy Court Orders would engage Article 313(7) (or any other criminal provision of UAE law) (or in the language used by NMC in its skeleton “could be applied”) such that there can be said to be a real or actual risk of prosecution.

[125]It was submitted for the Claimant (skeleton paragraph 30) that:

“On any view, the Bankruptcy Court’s interpretation of its own law, and its view on the true construction of its own orders, must (at the very least) have considerable authoritative force as a statement of UAE law in this court, and should influence this court’s assessment of the real risk faced by NMC and its officers. Whatever points EY seeks to make about the application of Article 313(7) as an abstract matter, the Bankruptcy Court has made the threat of legal sanction clear.”

[126]I have set out above why in my view the January 2025 Decision does not amount to a decision as to the scope of the confidentiality restrictions imposed by theBankruptcy Court Orders or lead to any inference as to how the Bankruptcy Court would view an order of this Court to lift the Undertakings in the present circumstances.

[127]As to the “threat of legal sanction” this Court has to determine whether there is a “real – in the sense of the actual – risk of prosecution in the foreign state”.

The evidence on risk from the administrators of NMC

[128]In weighing the “risk of prosecution” under UAE law, I have carefully considered the evidence of the administrators of NMC. I accept on the evidence before the Court that the administrators of NMC have a genuine concern that they do not wish breach the orders of the courts of the UAE and to thereby risk the imposition of criminal sanctions against them.

[129]However it is for this Court to determine on the evidence whether that genuine concern is well founded in the circumstances of this case.

The evidence from the UAE lawyers on risk of prosecution

[130]The evidence of Mr Al Osaiba in his first witness statement is that breach of the orders would result in “penal consequences under Article 313/7”: “17. The Bankruptcy Court, through the above orders, has repeatedly emphasised that the confidentiality restrictions are not limited to one specific document but extend to all documents and information pertaining to the Bankruptcy Proceedings. The Bin Butti Settlement Agreement is a document on the file of the Bankruptcy Proceedings. I therefore consider that all information included within the Bin Butti Settlement Agreement is subject to the above confidentiality orders, and breach would result in penal consequences under Article 313/7”.

[131]In his second witness statement (paragraph 29) Mr Al Osaiba's evidence was that there are a number of potentially interested parties that may seek to refer a breach by NMC or the Joint Administrators:a. the Trustees and the debtors in the Bankruptcy Proceedings were involved in the consideration of the terms of the application made to the Bankruptcy Court to allow EY access to the Settlement Agreement, and are therefore aware that NMC is being asked to disclose documents related to the Bankruptcy Proceedings that are subject to the Confidentiality Orders and may seek to refer the matter to the Public Prosecutor.

b. the Bankruptcy Court may also refer the matter to the Public Prosecutor itself.

[132]Mr Al Osaiba's evidence was that:

“…I believe that, in circumstances where the Bankruptcy Court has permitted the release of the Settlement Agreement under certain conditions, it would be more likely to seek to refer the matter to the Public Prosecutor if NMC were to go on to breach those conditions by disclosing the Settlement Agreement openly. The Bankruptcy Court may seek to monitor the conditions it has approved and may ask for updates on compliance with the January 2025 Decision. The Bankruptcy Court may additionally consider a violation of those conditions to be a breach of its express directions in the January 2025 Decision and, as such, as a disregard of its authority and its role in overseeing the Bankruptcy Proceedings (in other words, such a breach may be considered similar to a contempt of court).”

[133]Mr Al Osaiba was also of the view (paragraph 30 of his second statement) that:

“If a breach by NMC was to be referred to the Public Prosecutor, I believe that the likelihood of the Public Prosecutor choosing to pursue a prosecution against NMC or the Joint Administrators would be very high - almost certain. While there are no publicly available guidelines addressing the factors to be taken into account by the Public Prosecutor in deciding whether to prosecute, usually the Public Prosecutor will be influenced by the availability of evidence establishing the elements of the particular crime as set out in the penal code. If the Public Prosecutor elects to pursue a prosecution, the matter would then be taken to the relevant criminal court for determination. If the prosecution is confirmed by the criminal court, a criminal penalty will be imposed.”

[134]The evidence of Mr Ramadan (second witness statement paragraph 23) was that:

“Even if the Confidentiality Notices did impose confidentiality restrictions on NMC, I do not believe that there is a real risk that NMC, or its Joint Administrators, would face prosecution with the UAE for disclosure of the BBSA (or the Additional BB Documents) to EY in these proceedings.”

[135]Mr Ramadan's reasoning is that he does not agree with Mr Al Osaiba that references in the Bankruptcy Court Orders to “legal liability" refer to liability under Article 313. He is also of the view that the step which NMC would be taking in disclosing the Settlement Agreement (and the Bin Butti Claim Documents) to EY within the English proceedings would not amount to "publishing" the Settlement Agreement (or the Bin Butti Claim Documents) for the purposes of Article 313 (Second witness statement paragraph 23.5)

[136]However even if the Court were to assume that Mr Ramadan was wrong on the scope of the Bankruptcy Court Orders, Mr Ramadan stated that he has searched for any precedents in the UAE for criminal convictions for breach of confidentiality restrictions under the provisions on which Mr Al Osaiba relies (specifically Article 313) and has not found any precedent for a criminal conviction within the UAE for breach of those articles (Second witness statement paragraph 23.1).

[137]It was submitted for the Claimant that the evidence of the administrators of NMC is “powerful evidence that allegations of that sort can and do result in prosecutions with dire consequences for individuals”. Thus it was submitted that the Court cannot rely on Mr Ramadan's search of a database of convictions as demonstrating that “breaches of court orders are not taken seriously by the UAE authorities”.

[138]The evidence of the administrators relates to an entirely different matter and does not address the risk of prosecution which the Claimant asserts would arise as a result of the Bankruptcy Court Orders. The UAE authorities may well take breaches of court orders “seriously” but that is not the test on the English authorities which this Court applies: this Court is concerned with “the real - in the sense of the actual - risk of prosecution in the foreign state”. The evidence of Mr Ramadan that he has not found any precedents for breach of confidentiality restrictions under Article 313 is therefore in my view highly relevant to the question of how real any risk of prosecution is.

[139]In the evidence for the Claimant Mr O'Rourke stated (paragraph 29 of his Seventh Witness Statement in September 2024) that:

“NMC is also especially concerned that the UAE Authorities will seek to enforce [Article 313] in circumstances where Mr Bin Butti is a politically well connected person in the UAE.”

[140]However whether or not that concern is a valid one, it presupposes that Article 313 applies by virtue of one or more of the orders of the Bankruptcy Court relied on by the Claimant. Further Mr O'Rourke's evidence was prior to the expert evidence being filed in the application for disclosure of the Settlement Agreement which expressly addressed the risk of prosecution.

[141]A further reason given by Mr Ramadan as to why he was of the view that even if the Confidentiality Notices did impose confidentiality restrictions on NMC, he did not believe that there is a real risk that NMC, or its Joint Administrators, would face prosecution with the UAE for disclosure of the Settlement Agreement (or the Bin Butti Claim Documents) to EY in these proceedings was that (second witness statement paragraph 23.4):

“Given the high degree of cooperation between the UAE and UK judicial systems, I would expect the English High Court's order requiring disclosure of the [Settlement Agreement] to be taken into account and given weight by the Abu Dhabi Bankruptcy Court in assessing the issue.”

[142]Mr Salzedo KC for the Claimant in oral submissions said that he agreed with that but that “it would be an entirely different situation if the court decides to ride roughshod over any idea of comity by simply overturning what has been put to the Bankruptcy Court before”.

[143]I discuss the issue of comity below. However in relation to the risk of prosecution it seems to me that the Bankruptcy Court has not been asked to consider the position which now faces this Court and the reasons why this Court may now decide that the Settlement Agreement should be disclosed free of any restrictions and thus I do not accept that an order in the present circumstances would be “overturningwhat has been put to the Bankruptcy Court before”.

Comity

[144]It was submitted for the Claimant that the parties agreed, and this Court sanctioned, an approach to the UAE court asking it to release a document from its court-imposed confidentiality regime into a confidentiality club in the English proceedings; EY was involved in designing the confidentiality club and agreeing its terms; the UAE court acceded to that application. It was thus submitted that it would be “an extraordinary breach of comity” for this Court now to simply abrogate the terms on which the UAE court based its decision without any request or notice to the UAE court.

[145]The Claimant advances its case in reliance on the principle of comity on the basis that:a. other judges (namely Picken J in an earlier case management hearing in these proceedings and Sir Andrew Smith J in separate proceedings involving LTD in the ADGM) have proposed that the UAE courts should permit disclosure in relation to the Settlement Agreement subject to a confidentiality club;

b. the UAE Courts had previously rejected a separate application by LTD in the Sayacorp proceedings for disclosure of the Settlement Agreement; and

c. previously the Bankruptcy Court had been asked to allow disclosure of the Settlement Agreement for the purposes of these proceedings on the limited basis of a confidentiality club.

Sayacorp proceedings

[146]It was submitted for the Claimant that what Sir Andrew Smith J said during a case management hearing in the Sayacorp proceedings in November 2023 in the ADGM “strongly supports” the approach that the Claimant is advocating of maintaining confidentiality by the confidentiality club.

[147]At a case management hearing in the Sayacorp proceedings on 9 November 2023 the issue raised before the judge was a request for LTD to give certain information about the settlement.

[148]It was submitted for the Claimant that Sir Andrew Smith J made a case management decision that LTD should make an application to the Abu Dhabi Bankruptcy Court, and in doing that he expressly said that the application to the Abu Dhabi Bankruptcy Court should suggest a confidentiality regime. It was further submitted that the judge made it clear that his own understanding, sitting in the ADGM, was that the Abu Dhabi Bankruptcy Court might have real confidentiality concerns, over which he would not ride roughshod, as he put it. It was thus submitted that it is absolutely clear that he was concerned about comity.

[149]I accept that in the course of giving directions to counsel as to the form of the application which he was directing should be made to the Bankruptcy Court, Sir Andrew Smith J acknowledged the principle of comity: “…perhaps you could say to the extent required with regard to the imposition of any confidentiality regime or otherwise, so that it's clear on the face of the order that you've drawn to the bankruptcy court that we would welcome any observations that they have about confidentiality regime. … Could I just say, so that it is on the record, that of course this court will respect any concerns that the bankruptcy court has and, while our focus is on doing justice in our litigation between the parties, we shall do so with respect for the requirement and concerns of the onshore court…”.

[150]In reaching my conclusion on the Application I have had well in mind the principle of comity but I derive no particular assistance from the case management hearing in the Sayacorp proceedings as to where the balance lies in the circumstances that are now before this Court. The fact that Sir Andrew Smith J referred to “any concerns that the bankruptcy court has” does not establish that that compliance with an order for unrestricted disclosure in this case “would entail a party to English litigation breaching its… foreign criminal law” or that there is a real risk of prosecution. That was a case management decision in another case at a different stage of the proceedings.

History of this Application

[151]It was submitted for the Claimant that when EY asks the Court to exercise a case management discretion, it is “highly relevant” that EY accepted that proposing a confidentiality club would be the appropriate way to approach the UAE court, notwithstanding that they said "We do not accept there is any real confidentiality"; EY still accepted that that was the way to approach the Bankruptcy Court, in order to maximize the chance of getting the document, which it got.

[152]It was further submitted for the Claimant that: “EY gave this court the impression that they would only be coming back to this court and …using another day of court time if they got the wrong answer. We actually got the right answer”.

[153]In my view there is a fundamental difference between the position when the Disclosure Application was before Picken J and the position now before this Court.

[154]I accept that when the issue of disclosure of the Settlement Agreement to EY was before Picken J, Picken J referred to the balancing act that he would otherwise have to carry out as referred to in Bank Mellat. In the course of the hearing he endorsed an approach to the courts of the UAE to obtain their agreement to the disclosure of the Settlement Agreement and on the basis of a confidentiality ring.

[155]However I do not regard the approach of Picken J as expressed in the course of that hearing as in any way binding on this Court particularly given that:a. so far as the English courts are concerned, EY had always reserved its position concerning confidentiality in agreeing to approach the Bankruptcy Court with the proposal of a confidentiality club: the recitals to the order of Picken J dated 14 November 2024 made following that hearing expressly reserved the position of EY in relation to the issue of confidentiality; and

b. the issue is now not whether this Court should order disclosure and inspection of the document to EY but whether, in accordance with the legal principles set out above, the Settlement Agreement should remain subject to a confidentiality ring during the trial.

[156]Insofar as the Claimant relied on the prior approach to the UAE courts as relevant to the outcome of this Application, as referred to above, it is clear on the evidence before this Court of the terms of the application that was made to the Bankruptcy Court that the Bankruptcy Court was asked to give effect to a proposal put forward by the Trustees for the debtor and by NMC for disclosure subject to a confidentiality club. The Bankruptcy Court was not asked to consider the alternative of unrestricted disclosure for the purposes of the trial of the English proceedings.

Conclusion on comity

[157]Comity is clearly a matter which the Court must carefully consider (see Bank Mellat at [89]).

[158]Further I take into account the principle that: “An order will not lightly be made where compliance would entail a party to English litigation breaching its own (i.e., foreign) criminal law, not least with considerations of comity in mind” (Bank Mellat at [63]).

[159]However in the circumstances of this case for the reasons discussed above I do not accept the Claimant's submission that to remove the confidentiality club would be "an extraordinary breach of comity".

[160]In considering the extent to which weight should be given to the principle of comity the Claimant has not shown that compliance with an order of the English Court for unrestricted disclosure “would entail a party to English litigation breaching its… foreign criminal law.” It has not shown cogent and clear evidence that it would be a breach of Article 313(7) or any other criminal provision in the UAE.

[161]Further, whether or not the Bankruptcy Court would have granted permission or would now be prepared to grant permission for the Settlement Agreement to be disclosed on an unrestricted basis, the issue of disclosure is a matter for the lex fori. The English authorities are clear that the starting point as a matter of English law is the principle of open justice and a confidentiality ring involves a departure from the open justice principle which must be justified.

[162]Finally I note that “Comity cuts both ways” (Bank Mellat at [63(vi)]). There is no reason to suppose that the UAE courts on the basis of mutual respect would not appreciate the need for the removal of the restrictions previously imposed on the basis of the decision of this Court as set out in this judgment applying the laws of the lex fori. (See by analogy Bank Mellat at [92]).

Conclusion on the Settlement Agreement

[163]As set out above, “it is for the Court to balance the conflicting considerations: the constraints of foreign law on the one hand, and the need for the documents in question to ensure a fair disposal of the action in this jurisdiction” (Bank Mellat at [3]); and “the burden lies on those seeking to displace the application of the open justice principle to produce clear and cogent evidence to explain why that departure is justified” (Cavallari).

[164]For the reasons set out above, in my view the Settlement Agreement and the related Bin Butti Claim Documents are likely to be highly relevant to issues to be determined by the Court at trial and the open justice principle strongly favours an approach at trial that would enable the public to understand the issues and the trial.

[165]The Court weighs against the principle of open justice the constraints of foreign law. However the Claimant has not established that the confidentiality restrictions in the Bankruptcy Court Orders (and repeated in the January 2025 Decision) are either applicable to NMC who is not a creditor in the Bankruptcy Proceedings or extend to the Settlement Agreement which NMC holds independently of any need to copy the document on the Bankruptcy file.

[166]Even if these Orders do preclude NMC from disclosing the Settlement Agreement other than in accordance with the confidentiality club, the Claimant has not shown clear and cogent evidence that there is a real risk that NMC or its Joint Administrators would face criminal prosecution in the UAE for disclosure of the Settlement Agreement if the confidentiality restrictions previously imposed are lifted by this Court: NMC has not established that the breach of the Orders would engage Article 313(7) or any other criminal statute and has not shown a real or actual risk of prosecution.

[167]The January 2025 Decision does not affect the conclusion on the real risk of a criminal prosecution in the UAE and the Claimant's submissions have largely focussed on the issue of comity arising from that order.

[168]Whilst I have carefully considered the issue of comity, for the reasons set out above, in the circumstances of this case I find that the considerations of comity which arise do not outweigh the principle of open justice.

[169]I have carefully considered the implications of this judgment from the likely perspective of the UAE courts and I have sought to explain my reasons for the benefit of the parties and of the UAE Courts for reaching my conclusion so that if and to the extent that the decision of this Court is perceived as conflicting with the previous approach of the parties before the UAE Courts the approach of this Court is clearly laid out.

[170]It was submitted for the Claimant that the appropriate course is to require a further application to be made to the Bankruptcy Court, or to say something in a judgment that can be put to the Bankruptcy Court, and to at least give that Court the opportunity to say something about it before making a final decision. It was submitted that “Comity requires that much in these circumstances.”

[171]It was further submitted for NMC that the Bankruptcy Court has agreed, and it would expect the English court to give it a further opportunity to either agree or disagree or give reasons before abrogating that.

[172]In considering this alternative,there is the practical consideration of the very short period left until the trial starts. In my order of 3 March 2025 following the last hearing the recitals recorded that the Claimant had informed EY on 25 February 2025 that it intended to make a request to the Bankruptcy Court “this week” in respect of the Bin Butti Claim Documents and that it anticipated a response within approximately two weeks. However although some directions have been made by the Bankruptcy Court following that application being made, the application had yet to be determined at the time of the hearing of this Application some six weeks after the application was made.

[173]There can therefore be no assurance that any fresh application would be determined prior to the start of the trial and if it were to be refused, the Court would be faced with the same decision to make.

[174]In any event, in my view this is a decision for the English Courts and the considerations which bear on the decision of the courts of the UAE are not the same as govern the decision of this Court: “2. …On occasions, a tension can arise between the English law requirement for the inspection of documents and the provisions of foreign law in the home country of the litigant. 3. Where such a tension arises, it is for the Court to balance the conflicting considerations: the constraints of foreign law on the one hand, and the need for the documents in question to ensure a fair disposal of the action in this jurisdiction, on the other…” (Bank Mellat).

[175]Accordingly I do not accept that there should be a further application to the Bankruptcy Court as an alternative to an order by this Court now in respect of the Application.

[176]For all the reasons discussed above I find that the Undertakings previously imposed by orders of the English Court on the Settlement Agreement should now be discharged.

Bin Butti Claim Documents Application

[177]The documents in issue are:a. The claims made by NMC and by LTD in the Bankruptcy Proceedings, both dated 3 September 2021;

b. The grievance filed by NMC with the Bankruptcy Court on 21 November 2021;

c. The Letter of Understanding between NMC and certain debtors dated 16 December 2021;

d. The decision of the Bankruptcy Court to dismiss NMC's grievance dated 29 December 2021;

e. A further appeal prepared by NMC dated 7 January 2022 in respect of the decision to dismiss NMC's grievance (and the judgment of the Court of Appeal in response to that grievance dated 16 February 2022); and

f. A previous version of the Settlement Agreement dated 31 January 2022.

[178]In my order of 3 March 2025 the Bin Butti Claim Documents were said in the Recitals to be “relevant and disclosable”. Although therefore NMC in its skeleton for this hearing said that:

“it is unclear … to what issue in the proceedings these documents are relevant”

I do not propose to address the issue of relevance which has in my view been accepted. In my view the only issue to be determined is whether the Bin Butti Claim Documents should be disclosed subject to a confidentiality club. Therefore the same balancing exercise applies to these documents as set out above in relation to the Settlement Agreement.

[179]EY submitted that there is no clear and cogent evidence that these documents are confidential as a matter of UAE law or that there is a real risk that NMC or its administrators would face prosecution if these documents were disclosed in these proceedings.

[180]In relation to the claim documents the evidence of Mr O’Rourke is that these are public:

“I am instructed by the Joint Administrators of NMC that the only legal proceedings in relation to the Bin Buttis that have been issued by companies within the former NMC Group were the claims filed as part of the Bankruptcy Proceedings ("Bankruptcy Claims"). The claims made in the Bankruptcy Proceedings and the decisions made by the Bankruptcy Trustees in response to those claims are public”

[181]However even if some of these documents are not public, the documents relate to the Settlement Agreement and applying the same reasoning as applied to the Settlement Agreement, NMC has not shown a real risk of prosecution if these documents are disclosed and in my view the principles of open justice are not displaced by any countervailing considerations.

[182]I therefore order disclosure and inspection of the Bin Butti Claim Documents without imposing any restrictions by way of a confidentiality club.

NMC Health Plc (in administration) v Ernst & Young LLP [2025] EWHC 1048 (Comm)

Confidentiality

Background

Evidence

EY’s position in outline

Relevant legal principles

Open justice

Real risk of prosecution

Court orders in UAE

December 2021 Order

from the Bin Butti Bankruptcy Court File. I continue to believe that it is relevant

February 2022 Decision

March 2022 Notice

January 2025 Decision

Article 313(7)

The evidence on risk from the administrators of NMC

The evidence from the UAE lawyers on risk of prosecution

Comity

Sayacorp proceedings

History of this Application

Conclusion on comity

Conclusion on the Settlement Agreement

Bin Butti Claim Documents Application

Cited in 2 later judgments