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How aggressive can litigators be in heavy civil litigation where Article 8 rights are at stake?

How aggressive can litigators be in heavy civil litigation where Article 8 rights are at stake?

Article 8 of the European Convention provides a right to respect for private and family life, home and your correspondence.

Two cases, Boreh -v- The Republic of Djibouti and others [2015 EWHC 769] and St Merryn Meat Ltd and others -v- Hawkins [2001 ALL ER (D) 355], provide some answers.

On the 23 March 2015 a judgment was handed down on an interim application to discharge asset freezing orders in Boreh -v- The Republic of Djibouti.

Briefly, the facts are that in September 2013 the Republic of Djibouti obtained worldwide freezing orders in a civil claim against the Djiboutian businessman and politician Abdourahman Boreh. The substance of the claim was that Boreh had improperly profited from his position as President and Chairman of the Djibouti Ports & Free Zones Authority. The claim, and the application for freezing orders against Boreh, was based in part on the fact that Djibouti courts had convicted Boreh of embezzlement and terrorism.

In response to the application for the freezing order Boreh alleged that the underlying claim against him was politically motivated and that he, his family and his companies had been targeted by the Government of Djibouti. Boreh led evidence that he had been wrongly convicted in absentia and said that the fact that the Spanish courts had refused to extradite him to Djibouti earlier proved his allegation.

The terrorist act of which he was convicted was said to be his involvement in a grenade attack which occurred at 7.30 pm on 4 March 2009. That conviction was based on two pieces of evidence. The first was the content of telephone interceptions in which the consequences of the attack were alleged to have been discussed. The second piece of evidence was an admission extracted on the basis of the specific interceptions. The time and date of the interceptions was therefore fundamental to the criminal case against him.

In August 2013, before the application for freezing orders was heard by the High Court, a diligent associate at Gibson Dunn, solicitors for the Republic of Djibouti, reviewed call logs to establish the precise date and time of the telephone interceptions. This was done as part of a second strand of Djibouti’s litigation strategy, which was to seek Boreh’s extradition from Dubai to Djibouti - an unattractive prospect for any individual, but particularly for one whose brother had died in custody there.

The Gibson Dunn associate discovered: “the problem is that the call log shows that the conversations took place on 4 March 2009, at 2.23 and 2.35 pm i.e. before the grenade attacks took place”. This information was immediately passed to Peter Gray, the partner who had conduct of the matter.

Gray, a former barrister, knew very well that asset freezing applications are equitable remedies. Those applying for them have an obligation to act in utmost good faith, make complete disclosure to the Court of all material facts, including those that undermine their case, and, more generally, come before the Court with ‘clean hands’. He and his clients failed all tests.

The fact that Boreh’s conviction was based on unreliable evidence was clearly germane to the Court. As the judge who granted the freezing orders, Mr Justice Flaux (Flaux J), later said, it went some way to support the defendant's claim of political persecution. There was no doubt that it should have been disclosed.

But Gray did not disclose. Rather, as Flaux J observed, “during the period September to November 2014 ... Mr Gray engaged in a strategy of equivocation and evasion which is not one which any reputable and honest solicitor could ever have adopted”.

The freezing order was discharged.

But it was not Gray’s conduct alone which deprived his client of the remedy they were seeking. There were four other aspects of the claimant's conduct which caused Flaux J concern.

The first three related to the use of his judgment in the initial freezing application which was used to support attempts to get Boreh extradited even though the Djibouti government knew that that judgment was based on his misapprehension.

The fourth element was “the thoroughly improper pressure put on Mr Boreh by Kroll on behalf of Djibouti to settle the litigation”.

Pressure to settle has long been a primary objective of asset seizures and other pre-emptive orders - so why in this case was that conduct viewed as “reprehensible”?

The facts provide a straightforward answer. Mr Everett-Heath, the regional managing director for Kroll’s Europe Middle East and Africa’s business, met Mr Boreh in January 2014 for a without-prejudice negotiation to try to settle the claim. Unknown to Mr Everett-Heath, Mr Boreh recorded the conversation. During the conversation Everett-Heath made “threats to continue and expand the campaign against him through the use of terrorist charges made on behalf of Djibouti”. Similar threats were repeated in a subsequent telephone call which was again recorded. Flaux J found the threats:

go way beyond what is permissible even in the hardest fought commercial litigation. What was being said was that, if he settled the litigation (in fact for more than it was worth) he could avoid the risks of extradition to Djibouti, being in prison there for the rest of his life, money laundering and similar criminal-related actions in the US and elsewhere...those actions being expanded to members of his family”.

Flaux J said it was not necessary for him to find that Everett-Heath’s conduct amounted to blackmail, but “I have concluded that there was unambiguous impropriety given the nature of the threats”.

Djibouti's application for fresh freezing orders were therefore denied.

Article 8 of The European Convention

A less prosaic asset freezing case, St Merryn Meat Ltd and others -v- Hawkins (29 June 2001 Vos QC sitting as a deputy High Court judge) was cited by Flaux J in his judgment.

It was different because there were admissible admissions of criminal conduct by the defendants and a proven possibility of asset dissipation. But Vos QC discharged asset freezing orders because the claimants had acted in flagrant breach of their obligation of absolute good faith.

Specifically, the claimant lied by saying relevant evidence had been obtained by recording internal telephone conversations whereas conversations had been intercepted by placing a call splitting device in one of the defendant's home phones. That lie was repeated when they sought to have the orders upheld.

Vos QC had no difficulty in finding there was material non-disclosure and therefore a breach of the obligation to act in utmost good faith. But he expressly did not find that the claimant had acted unlawfully (para 80-82).

Rather he decided the matter on the basis of a breach of the defendant’s Article 8 Convention right to respect for his private and family life, his home and his correspondence.

Vos said that where Article 8 rights were knowingly violated “the Court should have been informed of the facts which amounted to that breach, namely the manner in which the claimants evidence had been obtained” (para 89).

Neither the Convention nor the Human Rights Act provides a civil right of action against an individual who breaches Convention rights, but Vos found that this was not relevant - what was relevant was that a breach of those rights must be disclosed to the Court in an application for pre-emptive relief because a “court considering an interim application would have wanted to be satisfied that any order it made did not involve a breach of Article 8”.

What then does this mean for litigators?

Article 8 of the European Convention provides a right to respect for private and family life, home and your correspondence. It is qualified in the sense that any interference with those rights by the state must be judged to see if it is acceptable.

In Boreh, the threats made to him by Kroll on behalf of their client were arguably a clear violation of his right to a respect for private and family life although this point was not taken.

But beyond this crude example there are a raft of investigative techniques which are regularly deployed in heavy litigation which may trespass on these rights, such as physical surveillance, the use of photographic surveillance and of covert human intelligence sources.

If those techniques are deployed then litigators for claimants will have to be very mindful of that fact in developing and deploying their litigation strategy that full disclosure may well be required.

No Grey - just black and white

Flaux J found that Gray was in essence dishonest. His conduct and that of his client were rightly described as reprehensible. But Vos in St Merryn provides a wider test - and one which litigators need to consider. In utilising equitable pre-emptive remedies there is no grey - just black and white.

Bill Waite
17th September 2015
Categories: Company News
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