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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Federal Republic of Nigeria v Process & Industrial Development Ltd (Re Ruling on Leave to Appeal) [2023] EWHC 3320 (Comm) (21 December 2023) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2023/3320.html Cite as: [2023] EWHC 3320 (Comm) |
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THE BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
London |
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B e f o r e :
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The Federal Republic of Nigeria |
Claimant |
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- and - |
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Process & Industrial Development Ltd |
Defendant |
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Lord Wolfson KC, Alexander Milner KC, Henry Hoskins and Max Evans (instructed by Quinn Emanuel LLP) for the Defendant
Hearing dates: 8 December 2023
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Crown Copyright ©
Robin Knowles J CBE:
Introduction
Reasons for refusing leave to appeal
"494. The first is P&ID's providing to the Tribunal and relying on evidence before the Tribunal that was material but was evidence that P&ID knew to be false. Specifically, this was the evidence of Mr Michael Quinn in his witness statement of 14 February 2014 that he was "explain[ing] how the GSPA came about" when he did not do that because he did not mention that Mrs Grace Taiga had been paid a US$5,000 bribe at the end of December 2009 and a £5,000 bribe on 29 March 2010 ….
495. The second is P&ID's continued bribery or corrupt payment of Mrs Grace Taiga directed to the arbitration period in order to suppress from the Tribunal and Nigeria the fact that she had been bribed when the GSPA came about. This continued bribery or corrupt payment is fairly described by Nigeria as bribery "to keep her 'on-side', and to buy her silence about the earlier bribery". …
496. The third is P&ID's improper retention of Nigeria's Internal Legal Documents that it had received during the Arbitration. It retained these (rather than returned them unread) so as to monitor Nigeria's position and awareness as the Arbitration continued. This included monitoring whether Nigeria had become aware of the deception being practised by P&ID on the Tribunal and on Nigeria as a party before the Tribunal. …"
In its proposed Grounds of Appeal, P&ID uses the shorthand of "Perjury Irregularity", "Bribery Irregularity" and "Documents Irregularity" for the three things, and I shall do the same here.
Proposed Ground 1
509. In the present case the core is the bribery of Mrs Grace Taiga when the GSPA was being made. It is the fact of that bribery that Mr Michael Quinn falsely concealed by the words of his witness statement [the Perjury Irregularity], and that the continued bribery or corrupt payments sought to suppress [the Bribery Irregularity]. It is that that P&ID was monitoring (among other things) by its retention of Nigeria's Internal Legal Documents [the Documents Irregularity]."
"… The Awards were the result of the Arbitration that happened. There is not question to my mind that the Arbitration would have been completely different, and in ways strongly favourable to Nigeria, had the fact of bribery of Mrs Grace Taiga when the GSPA was being made been before the Tribunal. It would have brought in the issue whether the GSPA was procured by fraud, and as a result voidable. Discovery of the concealment would have completely altered the Tribunal's approach to the rest of Mr Michael Quinn's evidence."
Judgment [493] also expressed the finding that each irregularity "amounted to fraud by which the Awards were obtained".
"Nigeria never made any attempt to contact Ms Taiga during the arbitration; and it would be beyond fanciful to suggest that she might have spontaneously confessed to receiving bribes of her own motion, in circumstances where (i) she would likely face serious criminal sanctions, and (ii) it was common ground that she expected to receive a benefit from the proceeds of any award."
"508. … Perhaps there is much to be said for this aspect of these challenges to be left with the words of the section "serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant", keeping in mind the text of the DAC report to which the Privy Council referred."
Proposed Ground 2
Proposed Ground 3
"In relation to the Perjury Irregularity, the Court wrongly held that Mr Quinn's witness statement contained an express representation capable of amounting to perjury. It was not open to the Court so to hold in circumstances where Nigeria had (correctly) not pleaded a case to that effect. Further and in any event, the witness statement on a proper reading did not contain any express representation that, or to the effect that, no bribery had occurred in relation to the GSPA. Correctly analysed, the case could only have been one of non-disclosure, which in the absence of any duty of disclosure was not capable of satisfying the requirements of s.68(2)(g)."
"As well as being wrong (or at least arguably wrong) as a matter of analysis, the Court's findings regarding the Perjury Irregularity are troubling in terms of their implications for litigation and arbitration generally. If a failure to mention a fact or defence that a party is aware of amounts to perjury (subject only to niceties of drafting) then mere introductory sentences or even headings are liable to create a duty of disclosure (indeed full and frank disclosure) which applies at all times, regardless of what is provided in the relevant rules or has been ordered by the Court or tribunal. The consequence is that a losing party which later discovers a fact or defence it did not rely on earlier is entitled to parse all the witness evidence adduced by the winning party and argue that the failure to mention the fact or defence amounted to perjury – even just because of an introductory statement or heading – and should lead to the judgment or award being set aside. It is submitted that that cannot be right; at all events, it raises an important question of principle and practice which deserves appellate consideration."
"Other compelling reasons"
(1) "The value of the proceedings, which is extraordinarily high even by the standards of the Commercial Court."
(2) "The public importance arising from the fact that the Applicant is the Nigerian state."
(3) "The important questions of public policy and arbitration practice raised at [578]-[591] and their implications for arbitrators and other participants in arbitral proceedings."
(4) "The important questions of law raised by Grounds 1 and 3 above, in particular regarding (i) the proper approach to causation under s.68(2)(g) generally and in the context of improperly obtained documents in particular; (ii) when a witness statement which does not expressly mention a relevant fact or defence can nevertheless be considered to contain an express representation that such fact or defence does not exist; and (iii) whether or when a party to arbitration is under a duty to disclose adverse facts or defences on pain of perjury."
(5) "The potential consequences of the Judgment for Mr Burke KC and Mr Andrew, and the possible implications for any regulatory proceedings of any conclusions reached by the Court of Appeal as to whether or not their conduct was causative of the Awards."
Conclusion
Setting aside or remission to the Tribunal
"The court shall not exercise its power to set aside …, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.".
"Setting aside in our view really must be reserved for the most serious cases, where there is no real prospect of justice being done by the same tribunal upon reconsideration, and where the irregularity really goes to the root of the award (and where there is a real sense of the tribunal having behaved very badly indeed)."
Conclusions