|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> The Libyan Investment Authority v Societe Generale SA & Ors  EWHC 375 (Comm) (09 March 2016)
Cite as:  EWHC 375 (Comm)
[New search] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION COMMERCIAL COURT
7 Rolls Buildings Fetter Lane, London EC4A 1NL
B e f o r e :
| THE LIBYAN INVESTMENT AUTHORITY
|- and -
|(1) – (4) SOCIETE GENERALE SA AND
(5) WALID MOHAMED ALI AL-GIAHMI (6) LEINADA INC.
Samuel Ritchie (instructed by Enyo Law) for the Claimant
Adrian Beltrami QC, Alexander Polley and Sandy Phipps (instructed by Herbert Smith
Freehills) for the First to Fourth Defendants
Paul Girolami QC, George Hayman and Tom Richards (instructed by Mishcon de Reya
LLP) for the Fifth and Sixth Defendants
Andrew Hunter QC and Andrew Scott (instructed by Swan Turton) for Person B
Hearing dates: 10 – 12 February 2016
Crown Copyright ©
Mr. Justice Teare :
proposed order provides that no Relevant Person shall disclose any Restricted Information to any Professional Third Person (defined as professional teams out of the jurisdiction such as foreign lawyers) unless that Professional Third Person has given an undertaking in the terms set out in Part C of the Schedule (in essence to keep it confidential and to submit to the jurisdiction of this court). Paragraph 5 provides that Relevant Persons and Professional Third Persons may communicate Restricted Information amongst and between themselves without restriction provided that all written communications containing Restricted Information are marked as "Confidential and Restricted Information subject to the terms of this order". Paragraph 6 provides that no Relevant Person shall disclose any Restricted Information to any Third Person (defined as individuals who are not a Relevant Person or a Professional Third Person) unless that Third Person has given an undertaking in the terms set out in Part D to the Schedule (in essence to keep it confidential and to submit to the jurisdiction of this court).
i) Is the LIA entitled to make this application? It is suggested that the LIA is not so entitled because of an earlier decision by Hamblen J. in February 2015 concerning the Confidentiality Club.
ii) Would disclosure of the names of the Alphabet Individuals give rise to a risk to life, limb or property?
iii) If so what are the reasonable and proportionate steps required to protect the
The entitlement of the LIA to make this application
court's obligation to protect life, limb and property. This is consistent with Hamblen J. having "received and considered" what Mr. Girolami described as "hundreds of pages of evidence, written submissions and oral submissions."
Would disclosure of the names of the Alphabet Individuals give rise to a risk to life, limb or property?
life. The risk must be "objectively verified" and an immediate risk is one which is "present and continuing". It may be added that a real risk is one which is "a substantial or significant risk and not a remote or fanciful one"; see Rabone v Pennine Care NHS Trust  2 AC 72 at paragraph 38 per Lord Dyson. Hamblen J. said (at paragraph 29 of his judgment) that the same "real risk" test applied to the state's obligation in relation to Article 3 to protect against torture or other inhuman or degrading treatment.
engage Articles 2 and 3 was "high" and "stringent"; see Re Officer L  1 WLR
2135 at paragraph 20 per Lord Carswell and Van Colle v Chief Constable of Hertfordshire  1 AC 225 at paragraph 115 per Lord Brown. It was accepted by Mr. Masefield that this did not mean that a high level of risk had to be established but that cogent evidence was required to meet the required test. A 20% chance that something may happen is a real risk because it is substantial and not fanciful; see the approach of Simon J. in Rabone where such a risk was described as "low to moderate (but nevertheless significant)" quoted by Lord Dyson at paragraph 35.
"The high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section I of this Convention."
131. A state's jurisdictional competence under art.1 is primarily territorial. Jurisdiction is presumed to be exercised normally throughout the state's territory. Conversely, acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of article 1 only in exceptional cases.
132. To date, the court in its case law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a contracting state outside its own territorial boundaries.
relevant. The debate in the present case was whether the evidence established that unlimited disclosure of the identity of the Alphabet Individuals gave rise to a real and immediate risk to life and limb. To that evidence it is now necessary to turn.
The effect of disclosure
42). Hamblen J. recorded the submission of the Fifth Defendant that "such individuals will be put at risk or increased risk if their identity is publicised or leaked, particularly given the use of social media in Libya" (see paragraph 43). The judge held (in paragraph 47) that there was no real and immediate risk to the life and limb of individuals D and R or their family because they were not resident in Libya, they had no family members there and there was no evidence that they were likely to travel to Libya in the foreseeable future. But with regard to individuals L and N who resided in Libya with their families such a risk was made out because they fitted the "risk profile" which Mr. Walker-Cousins had identified (see paragraph 50). On my understanding of the judgment that "risk profile" was that referred to in paragraphs 42 and 43 of the judgment, namely, individuals who receive payments or the benefits of payments by the Fifth Defendant which on the LIA's case represent payments of the proceeds of the Leinada payments- ie payments by an alleged Gaddafi associate and "representative" of misappropriated state funds.
but I do not understand Hamblen J.'s mention of the LIA's case in that regard to have been intended to limit the risk profile. Such a limit would not make sense. The Fifth Defendant is a person who, it is alleged, received funds misappropriated from the Libyan state. The risk profile as found by Hamblen J. extends to those who are reported as being in receipt of sums from the Fifth Defendant. If the interest of the militia in Libya in a person who has received a substantial sum from the Fifth Defendant is stimulated by reports of such receipt (because they are likely to have been misappropriated from the state in circumstances where they have been provided by the Fifth Defendant) I doubt that the militia will be particularly concerned with the precise source of such monies.
trafficking ……kidnappings and extortion from notable families and businessmen in Tripoli." In paragraph 20 he said that the civil war in Libya and the existence of competing chairmen at Libya's financial institutions are now intimately linked and the risks relating to revenge, retribution and politically motivated attacks have only increased."
"[The Fifth Defendant] his family and associates
………….could also be considered specific targets given the high-profile nature of this case, the sizable sums of money no doubt involved and the increasingly political nature of the proceedings concerning control over the national institutions, including ……..the LIA." (paragraph 22)
"….given the continuing deterioration in Libya's security situation, in Tripoli and Benghazi in particular, and in light of the increasingly tight financial situation across the country, the threat to high-profile business individuals and their families
….will have been increased." (paragraph 23)
"If someone is a recipient of tainted funds and their name and location was to be publicised, or fall into the wrong hands, then it is likely they would become the target of criminal activity." (paragraph 26)
" ….public allegations of association with [the Fifth Defendant], even where those allegations may only imply the receipt of tainted funds will likely be widely disseminated and much commented on in the local press and social media. This will therefore increase that risk to an individual living in Libya, or to their family and assets in Libya. Similar risks would also apply to an individual who is publically associated with [the Fifth Defendant], through having sold an asset to him or who received a charitable payment from him, or if this information was passed unofficially to the GNC/Dawn militia alliance currently controlling Tripoli and the LIA." (paragraph 27)
"There is no known case of any arrest merely on the basis of past association with Gaddafi's regime or family, or claims to have profited financially from those associations (including from corruption)." (paragraph 27)
"The possibility of a risk to individuals who were not azlam, but who were simply involved in past corruption under the Gaddafi regime or who were associated with the regime or state institutions in other ways ………..certainly ceased after 2011-
2012. Indeed, no example of the targeting of such individuals has been provided in the material I have received relating to this case." (paragraph 29)
"Nonetheless, the mere fact of association with the Gaddafi regime, or past receipt of financial benefits due to associations with the former regime, was not a motivating factor in the assassinations at any stage of the campaign." (paragraph 32)
"individuals merely because of their association with the Gaddafi regime, nor for corrupt activities supposedly carried out under that regime." (paragraph 39)
He did not consider there were any. He noted that although information concerning his position and dealings had been available since 2011 the Fifth Defendant has not been a marked man. He expressed the opinion that the mere fact of association with the Gaddafi regime or family is not a reason for pursuit of an individual in Libya in
2016. Also, the fact that someone is thought to have financially benefited from their links to the regime would not be a reason for that individual being subjected to any particular threat. He was unaware of any example of a person since 2012 being targeted on the basis that they benefitted from corrupt dealings with the former regime.
"Any further release into the public arena of information concerning those associated with [the Fifth Defendant] through the receipt of potentially tainted funds would substantially increase the risk of their exposure to threats of extortion and intimidation motivated by the financial concerns of criminal elements (such that there is a high risk) and/or as part and parcel of the wider wrangling over the leadership and control of the LIA." (paragraph 6)
Libya. He considered that if a person associated with the Gaddafi regime was brought to the attention of the militia they would be just as much at risk as before.
"patently clear that the release of new or further personal details or facts into the public domain of individuals associated with [the Fifth Defendant], including by the receipt of tainted funds, would, given the high profile nature of this case, manifestly increase the risk of their being targeted."
would not be at any further risk (from the endemic, opportunistic crime which he accepts is present in Libya) if it were reported on social media in Libya that a named Libyan had received a significant sum of money from the Fifth Defendant appears to me, with respect to Mr. Cole, to be unduly complacent. Lawless and violent militias (attracted by "the perceived possibility of extracting wealth from individuals who are perceived to be wealthy") might well it seems to me, having regard to the evidence in this case, be stirred into action by such reports.
Walker-Cousins, namely, persons in Libya who are reported as having received money, or at any rate what he describes as "sizeable" sums, from a source associated with the Gaddafi regime, are still at risk in 2016 from criminal and politically linked militias in search of financial gain. The risk is probably less than it was in the aftermath of the civil war given the time which has elapsed since then and the other political issues which have developed as noted by Mr. Cole but I consider the risk to be real and immediate, albeit low.
i) Of the first tranche of Alphabet Individuals the necessary real and immediate risk has been made out only in respect of A, B and U, in addition to L and N whom Hamblen J. held were within the risk profile. (Although I was provided with information about L and N I did not consider it appropriate to review Hamblen J'.s findings.)
ii) Of the second tranche of Alphabet Individuals the necessary real and immediate risk has been made out only in respect of X, Z, AB, AE, AF, AH, AJ and AI.
iii) In addition AC, AD, AG, AK, AL, Company X and properties A-L should be kept confidential so as to prevent the identification of Person B.
What are the reasonable and proportionate steps required to protect the Alphabet Individuals?
"That's the difference in a nutshell between the Confidentiality Club and the RIR, because the Confidentiality Club has at its heart vetting for trustworthiness of those who may be permitted to have the confidential information; and the RIR does not. The definition of "third party" in the RIR, paragraph 2.3, is effectively anyone."
the lives of fellow Libyans. However, I do not feel able to say that the possibility of such a leak occurring can confidently be excluded.
i) The LIA should first inform the other parties of the name of the Libyan Third
Party with a "short description of their identity".
ii) The other parties would then have 7 days to object to the LIA disclosing the confidential information by setting out the basis on which the provision of confidential information to that person will materially increase the risk to life and limb with supporting evidence. The LIA would provide short written submissions with supporting evidence. The court would then rule on the objection.
the burden should be on the Fifth Defendant and Person B to persuade the court that the person should not be admitted.
bank's officers or employees who may have relevant evidence I would expect that, pursuant to the duty of the Fifth Defendant and Person B to cooperate with SocGen in enabling this matter to get to trial, a generic description of the proposed witnesses (which makes it clear that they are bank officers or employees) would suffice and be acceptable to the Fifth Defendant and Person B.