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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Saab & Anor v Dangate Consulting Ltd & Ors  EWHC 48 (Comm) (15 January 2020)
Cite as:  EWHC 48 (Comm)
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BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
London, EC4A 1NL
B e f o r e :
| (1) MR AYOUB FARID MICHEL SAAB
(2) MR FADI MICHEL SAAB
- and –
|(1) DANGATE CONSULTING LTD
(2) BARRINGTON LONDON LIMITED
(3) MR NIGEL BROWN
(4) MR ALEC LEIGHTON
Mr Steven Kay Q.C. for the Defendants
Hearing dates: 21 November 2019
Crown Copyright ©
Mrs Justice Cockerill :
i) An Order that the Defendants have failed to comply with paragraphs 3 and 4 of the 25 July Order, in that they have failed to;
a) Deliver up all documents in their possession, custody and/or control, and
b) Failed to provide the specific information required in their affidavits dated 20 August 2019 (the "Affidavits").
ii) An Order requiring the Defendants within 14 days to serve further sworn affidavits which:
a) Explain in clear and unambiguous terms, precisely (a) what and when confidential information and documentation was given to third parties, (b) how meetings with third parties at which such information was disclosed came to pass, and (c) what information and documentation was provided to the third parties and at the meetings listed in the Defendants' Affidavits, and in the meetings attended by Mr. Brown in Tanzania in 2017;
b) Exhibit in an easy to follow format, (a) all communications leading to meetings at which confidential information or documentation was disclosed, and (b) all file notes, attendance notes, minutes e-mails, or other similar documents records what was said at such meetings;
c) Explain all relevant fact relating to the "Whistleblowing Scheme" referred to in Mr. Leighton's Affidavit, including but not limited to the detail set out at §2(6), (8) and (9) of the draft order; and
d) Exhibit copies of all documents / communications that mention, refer to or relate to that "Whistleblowing Scheme".
iii) An Order requiring the Defendants within 14 days to allow an e- disclosure provider appointed by the Claimants to image the Defendants' electronic communication and storage devices so the Claimant's legal team can review any/all documents responsive to the keywords listed.
iv) The appropriate accompanying orders which mirror the relief ordered at paragraphs 6-7 of the 25 July Order.
i) An Order declaring the Defendants to be in breach of the Order.
ii) An Order giving the Defendants a period of time (14 days was the submission) to purge their contempt, failing which it will be open to the Claimants to apply to commit the Defendants for contempt of Court.
iii) Costs of the application.
i) It is apparent that the Defendants assert that they have complied with their obligations under paragraphs 3 – 5 of the 25 July 2019 Order, and so challenge the application. However, the basis for this assertion was (as was often the case with their defence at trial) broad and non-specific, failing to engage with the detail of the case against them.
ii) That is an assertion which is manifestly wrong and it is troubling that it should be made at all, still less advanced on their behalf by counsel.
i) Include two individuals who are not in their first flush of youth;
ii) Are, if not in person (because they have the assistance of experienced criminal counsel in the form of Mr Kay QC), quasi in person, in the sense of being unassisted by civil solicitors or counsel;
iii) Appear (from the position adopted by them and advanced on their behalf at the hearing) not to have received clear advice to date about their position; and
iv) Are likely to face as the result of any continuing non-compliance an application to commit them for contempt; it has seemed to me that the interests of justice require that I make as clear as I can to the Defendants the view the Court takes of what they have produced so far – and enable them to understand in what respects and why I consider that they have not complied with my Order.
The Affidavits and the Need for Further Particularisation and Specificity
"… detailing in relation to each and every disclosure of confidential information to a third party, either during the course of their Engagement or after the end of their Engagement:
(1) The specific information and/or documentation disclosed;
(2) The date, or dates, on which such information and/or documentation was disclosed;
(3) The identity of the party or parties to whom that information and/or documentation was disclosed; and
(4) The format or means by which that information and/or documentation was disclosed, i.e. whether orally, in writing and/or by provision of documentation."
"…. Each of the Defendants are required to exhibit to the affidavits referred to at paragraph 4 above copies of all communications evidencing each and every disclosure of confidential information to a third party, including emails and other correspondence leading to meetings at which confidential information or documentation was disclosed….".
i) I consider that the Defendants have plainly failed to provide the requisite level of detail in their affidavits. To be clear:
a) The words used are "detailing" not "outlining" or "summarising" and "specific" not "approximate". What is required is detail, or particularity, as it is sometimes called.
b) The Defendants' avowed belief that the Claimants understand what was given is not relevant here. That belief does not in any way qualify the order made (whose terms were consented to).
c) The purpose of the 25 July Order is to enable the Claimants to understand exactly what information was given to whom in what format. So, the Claimants should be able to identify exactly (or as exactly as the Defendants can recall) the documents handed over to each recipient.
d) It can be tested this way: from what is given could the Claimants identify from out of the documents disclosed, the individual documents handed over? This is the test applied by the Court of Appeal in the context of letters of request where specific documents are sought. I have in mind here such authorities as Re Asbestos Insurance Cases  1 WLR 331, and Tajik Aluminium Plant v Hydro  EWCA Civ 1218  1 Lloyd's Law Rep. 155.
e) This should be put beyond doubt by compliance with the terms of paragraph 5 of the 25 July Order which requires "copies of all communications evidencing each disclosure".
f) The Claimants should be able to understand as nearly as possible exactly the information given in verbal or other non-documentary forms of disclosure.
ii) I consider that the Defendants have plainly either failed to understand or have comprehensively failed to comply with the disclosure requirement in paragraph 5 of the Order.
iii) However, on the other hand the Claimants have to some extent overreached in what they are claiming to be entitled to:
a) They are not entitled to duplicative information. So, if a document by document disclosure is made by reference to each individual provision of information, they are not entitled to (i) a list setting that out or (ii) details of the information contained in the documents.
b) Complaint is repeatedly made of inability to interrogate the information/documents. The test is not their ability to interrogate the documents or information. What they are entitled to is a detailed picture of what was provided so that the Claimants can understand the dissemination of their confidential information and consider their options as regards each disclosure.
c) The criticisms at Bunting 7 paragraph 23 are not valid. The fact that disclosure was made pursuant to an Order is irrelevant. It cannot therefore be within the 25 July Order to require the Defendants to detail the context of the Order, why it was granted and so forth.
The Leighton Affidavit
i) "Information and/or documentation disclosed". The answer: "Verbal account given of issues that we discovered at the bank" does not detail as required the specific information disclosed. While I accept that by implication what is being said is that no documents were disclosed, the reference to a "[v]erbal account" and "issues" does not comply with as requirement to "detail ... the specific information disclosed.".
ii) "Format of Disclosure by Fourth Defendant". It is said that "Invoices" and "schedules of work" were disclosed. Again, this does not amount to "detailing" the "specific" documentation disclosed. It would need to detail which invoices, and which schedules of work.
i) "Extensive disclosure of documents". Again, this does not amount to "detailing" the specific documentation disclosed. I do not however accept (as the Claimants' submissions suggest) that if specific documentation is identified, the content of the documentation needs also to be provided. The use of "and/or" makes it permissible to detail documents provided only, so long as there was no information provided in addition to the documents.
ii) Format of the disclosure: the information that disclosure was made pursuant to an Order does not answer the question of the format in which the information was provided. Was it provided orally or by documents?
i) "all e-files and e-mails relating to our investigation that were held no my laptop at the time". This does not detail as required the specific documentation disclosed. The detail provided should be sufficient to enable the Claimants to identify each of the documents provided. This may be done by reference to the specific disclosures required by Paragraph 5 of the 25 July Order, in which case it would be expected that any list would include document dates and the parties to the documents, to enable the specific documents to be identified. However, it could conceivably also be done by reference to a specific drive containing the relevant documents in an identified folder.
ii) Again, however I do not consider that if this information is provided it is necessary (i) in addition to provide details of the information contained in those documents or (ii) their dates and the parties to them.
iii) "Forensic image of files": If the other information is provided I am not persuaded that more detail is needed.
i) Again, this does not detail the specific documents;
ii) Format: the Claimants suggest that there is an oddity in that the fifth column refers only to a presentation to the Cyprus Central Bank, and makes no mention of the other parties to whom disclosure is said to have been made in the fourth column. This should probably make clear whether, as would naturally be inferred, it is the case that all the other parties named were present at the same presentation.
The Brown Affidavit
i) Item 1: "documents relating to Cyprus civil claims re unpaid invoices".
ii) Item 2:
a) "Description of work carried out at the Bank".
b) "provided data which was contained in affidavits".
iii) Item 3:
a) "background info and verbal".
b) "numerous questions by a panel of some 10-15 people".
iv) Item 4: "[e]ntire laptop" download by Kroll Ontrack in May 2015.
v) Items 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 18, 19, 20 and 21:
"Description of work carried out at the Bank".
vi) Item 9:
a) "Extensive interview questioning regarding Money Laundering and Terror Financing".
b) "Aware of Taint review and multi-agency liaison".
vii) Item 25: "Details of Money Laundering".
Delivery Up Order and the e-Disclosure Process
|1.||No minutes or file notes of any meetings with third parties have been disclosed in circumstances where the trial bundles contained around 20 very detailed meeting notes prepared by the Defendants during their engagement.||While this seems surprising, I do not on the material presently before me consider that I can conclude that there has on the balance of probabilities been a failure of disclosure. The notes I recall are not really of the same sort as those said to be missing.|
|2.||The Defendants have failed to produce a single document or explanation of the circumstances (dates, locations etc) in which confidential information came to be disclosed to at least fifteen third parties.||Though substantive communications may have been in person or by phone, the response suggests there should be "more logistical" emails. These should have been disclosed pursuant to the part of the Order that says "Each of the Defendants are required to exhibit to the affidavits …. copies of all communications evidencing each and every disclosure of confidential information to a third party, including emails and other correspondence leading to meetings at which confidential information or documentation was disclosed….".|
|3.||There are no communications or correspondence between the Defendants' Cyprus lawyers (ID Law) by whom confidential information was disseminated to third parties, and those third parties.||Documents held by ID Law are documents held by the Defendants' agents, and as such were covered by the Order. Any failure to disclose these documents was a breach of the Order. Any instruction to destroy these documents, as opposed to delivering them up, was a breach of the Order.|
|4.||No correspondence with certain third parties has been provided||See 2 above.|
|5.||Drafts of the Defendants' affidavits.||The Defendants have asserted common interest privilege. The explanation for how that common interest privilege is said to arise is not satisfactory and the documents would therefore fall to be disclosed under the Order. If the Defendants wish to rely on common interest privilege to resist disclosure of these documents they will need to make good that assertion by detailed legal argument.|
|6.||No documents have been provided showing how meetings with third parties came to pass.||See 2 above.|
|7.||No documents relating to Mr. Brown's Tanzania meetings have been disclosed.||There does not seem to be material upon which I could conclude that there has been a breach of the Order in this respect.|
Time for compliance
Post-hearing logistical issues