In Boreh -v- Republic of Djibouti  EWHC 769 (Comm) Mr Justice Flaux made a clear and unequivocal finding that a solicitor had deliberately misled the court. This led to the setting aside of the injunction that the clients had obtained. Privilege was waived in the case so that judge had the opportunity to read numerous attendance notes; texts and e-mails. The case also contains a salutary warning that everything you write may, one day, be read in open court.
(It is worthwhile pointing out at the outset that these findings were made against only one solicitor involved in the case. No adverse findings were made against any other legal representative).
The claimants/respondents obtained a freezing injunction against the applicant/defendant Mr Borah. At an application to set aside the judge made a finding that he had been misled at the the time of the application for the freezing injunction. The question was whether the claimants solicitor had deliberately and/or recklessly misled the court and, if so, whether the injunction should be set aside.
THE APPROPRIATE TEST IN RELATION TO ALLEGATIONS THAT THE SOLICITOR HAD MISLED THE COURT
- “Given the seriousness of the allegations made against Mr Gray and the implications for him of a finding that he had deliberately misled the court, the hearing was conducted on a fully robed basis. In that context, it is important at the outset of this judgment to set out the legal test which the court has to apply in determining whether a solicitor has deliberately misled the court and thus been guilty not just of professional misconduct but of dishonesty. As Mr Timothy Dutton QC submitted in his helpful and measured oral submissions on behalf of Gibson Dunn, the test has been clarified in the context of hearings before the Solicitors Disciplinary Tribunal where there are allegations of dishonesty by the Divisional Court (Richards LJ and Aikens J) in Bryant v Law Society  EWHC 3043 (Admin);  1 WLR 163. Having reviewed the earlier authorities, including the decision of the Court of Appeal in Law Society v Bultitude  EWCA Civ 1853, the Divisional Court said at  and :
“153. In our judgment, the decision of the Court of Appeal in Bultitude stands as binding authority that the test to be applied in the context of solicitors’ disciplinary proceedings is the Twinsectra test as it was widely understood before Barlow Clowes, that is a test that includes the separate subjective element. The fact that the Privy Council in Barlow Clowes has subsequently placed a different interpretation on Twinsectra for the purposes of the accessory liability principle does not alter the substance of the test accepted inBultitude and does not call for any departure from that test.
155. Accordingly, the tribunal in the present case should, in our judgment, have asked itself two questions when deciding the issue of dishonesty: first, whether Mr Bryant acted dishonestly by the ordinary standards of reasonable and honest people; and, secondly, whether he was aware that by those standards he was acting dishonestly.”
- It seems to me that in a case involving allegations that Mr Gray deliberately misled the court, that is an allegation of dishonesty and that, although the allegation is being made and determined in civil proceedings, given the gravity of the allegation, the appropriate test for the court to apply is the two stage test set out by the Divisional Court and Mr Kendrick QC has not sought to argue otherwise.
- Two other aspects of the approach which should be adopted by the court in cases of this seriousness were highlighted by Mr Dutton QC in his submissions. First, that in considering whether Mr Gray deliberately misled the court, it is important to judge his conduct by reference to the circumstances as they were at the time of the conduct in question and not with the application of hindsight. As Laddie J said in Re Living Images Limited  BCC 112 at 116H:
“I should add that the Court should be alert to the dangers of hindsight……
The court must be careful not to fall into the trap of being too wise after the event.”
- Second, since the proceedings are civil proceedings, the standard of proof remains the civil standard of the balance of probabilities, but where an allegation is made of deliberate misconduct or dishonesty, the court will only conclude that the allegation is made out if there is cogent evidence to that effect: see the well-known passage in the speech of Lord Nicholls of Birkenhead in In re H (Minors)  AC 563 at 586:
“Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception. By family proceedings I mean proceedings so described in the Act of 1989, sections 105 and 8(3). Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow’s Will Trusts  1 W.L.R. 451, 455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.'”
THE FINDINGS OF THE JUDGE
The solicitors case was that he had been guilty of serious errors of judgment but that he had not intended to mislead the court and had not done so deliberately.
One crucial issue was the date of certain telephone conversations which the claimants asserted meant that Mr Boreh was involved in certain terrorism activities. The true date (March 4th 2009) was before the attacks; an incorrect transcript showed the date as the 5th March 2009.
- “My reasons for reaching the conclusion that Mr Gray did deliberately mislead the court are as follows:
(1) The issue of the misdating of the transcripts had first cropped up less than three weeks previously and Mr Gray had immediately recognised that it was, as he later said, “a massive issue”. Although he sought to downplay it as a minor matter which just required changing a few dates in the extradition request, he knew it was in fact a lot more serious than that. As he accepted in cross-examination, the misdating meant that the conviction was unsafe and the evidence on which it was based, the transcripts and the confession of Mohamed Abdillahi, were unreliable. That was precisely why it was a big or massive issue and I consider that it is inconceivable that less than three weeks later, he would not have been acutely aware if both counsel and the judge were proceeding on an interpretation of the evidence which did not appreciate that the transcripts were misdated.
(2) Despite his knowledge that the conviction was unsafe and the evidence on which it was based was unreliable, from 26 August 2013 onwards he adopted a strategy of not revealing this to any court or outside agency such as Interpol. Hence the tactic of “getting away with the date error” or“fudging the error of the date” rather than being entirely open and frank with the Dubai court (and thereafter the English court) about the unreliability of the evidence and the unsafety of the conviction. As I have already held, “fudging the error of the date” was the language of concealment and not the approach of a solicitor of integrity.
(3) That evasive approach could not be justified by the assertion in his evidence that he thought that, even when the transcripts were given the correct date, Mr Boreh had a case to answer. The truth is that he appreciated that the case that the “act last night” was a grenade attack was dependent upon there having been a grenade attack on the evening of 3 March 2009; hence the search for evidence of such an attack. Some false evidence was produced by his clients, which conveniently not only asserted there had been an attack, but also explained why no-one had heard about it. However, by 28 August 2013, Mr Gray knew to put it at its lowest that this so-called evidence would not bear scrutiny and, by the time of the hearing on 10 and 11 September 2013, he knew that he had no evidence of any grenade attack on 3 March 2009.
(4) In any event, even if he had convinced himself that Mr Boreh still had a case to answer on the basis of the telephone transcripts with the correct date, the proper and honest course to have taken would have been to ensure that the Dubai court and, in due course, the English court was made aware that the original conviction was unsafe and the evidence on which it was based unreliable, so that the conviction could not stand and would have to be quashed. Then any extradition request could and should have been put forward only on the basis that Djibouti considered there was a case for Mr Boreh to answer at a fresh trial on the basis of the transcripts bearing the correct date. However, I suspect that the problem with taking that course might well have been that Mr Boreh would be handed back his passport and able to leave Dubai before the extradition request on that proper basis was presented and considered, something which, as the meeting at Kroll reveals, was to be avoided at all costs. That is why the strategy was developed at those meetings on 27 August 2013 of not disclosing to the Dubai court or the English court thereafter that the original conviction was unsafe and the evidence on which it was based was unreliable. Those meetings were attended by representatives of Djibouti, Mr Sultan (at Kroll) and Mr Djama Ali (at both meetings). As I held at  above, it is to be inferred that they agreed with the strategy and in following it Mr Gray no doubt thought he was acting in the best interests of his client.
(5) Contrary to Mr Gray’s purported recollection in his evidence, I do not consider that he explained the full implication of the dating error to Mr Qureshi QC either in their telephone call on 26 August 2013 or at any time thereafter. In particular, I do not consider that he ever told Mr Qureshi QC that the conviction was unsafe or that the evidence on which it had been obtained was unreliable. I consider that Mr Gray only told him that there was an error in one document referred to in the extradition request. Not only is this consistent with the contemporaneous documentation, such as Mr Gray’s own email referred to at  above, but as I have already held at  above, since Mr Simpson QC on behalf of Mr Gray expressly disavowed any allegation of professional misconduct against Mr Qureshi QC, Mr Gray simply cannot have explained the full extent of the problem to him. If Mr Qureshi QC had been aware that the conviction was unsafe and the evidence on which it was based (specifically the telephone transcripts and the confession of Mohamed Abdillahi) was unreliable because the calls had in fact taken place before the Nougaprix attack, Mr Qureshi QC simply could not and would not have made the submissions he made to the court on 10 and 11 September 2013 which I have quoted above.
(6) The strategy of not revealing to any court or outside agency that the conviction was unsafe and the evidence on which it was based was unreliable continued into the third affidavit in support of the freezing order application, which Mr Gray had sworn only a week before the hearing. As I have already found, paragraphs 163.4, 163.6 and 164 of that affidavit involved equivocation, on any view conduct which fell a long way short of the standard of professional integrity and candour which the court is entitled to expect of an English solicitor.
(7) I accept that Mr Gray did not deliberately include the wrong transcripts in the exhibit to his affidavit and this was an inadvertent mistake by the Gibson Dunn staff who put the exhibit together so that when the hearing started he would not have known that the wrong transcripts had been exhibited. However, once Mr Qureshi QC started making the submissions he did on the morning of the first day of the hearing quoted at  above, Mr Gray must have appreciated that the discussion with the court was proceeding on the false basis that the phone calls had been after the Nougaprix attack, not before, as he knew was in fact the position. It beggars belief that he did not realise that counsel and the court were under that misapprehension. Furthermore, as the passages from the transcript of both days of the hearing which I have set out at  to  above demonstrate, the issue about the telephone calls being evidence that Mr Boreh was implicated in a grenade attack on the Nougaprix supermarket the night before the calls was not the subject of some passing reference, but was an issue to which counsel and the court returned again and again. In those circumstances, I simply do not accept Mr Gray’s evidence that because he was tired or doing his emails or leaving it all to Mr Qureshi QC, he was not listening or concentrating. On the contrary, the fact that immediately after the hearing had finished on 11 September 2013, he asked Ms Kahn to include in the draft Interpol letter references to the transcript of the previous day where the court had said there was an arguable case that Mr Boreh was involved in terrorism, demonstrates that he was listening and concentrating as one would expect of the partner in charge of a case of this seriousness, sitting behind counsel in court. Of course what I had said about the case being arguable was on the basis of my reading of the transcripts, which was that they were on 5 March 2009, referring to the Nougaprix attack the previous night. Mr Gray knew that the court was proceeding on the wrong basis.
(8) Furthermore, at Mr Gray’s request, Ms Ngo Yogo II highlighted in yellow extensive sections of the transcripts of the hearing which I am quite sure he did go through and discuss with the associates which passages should go into the draft letter to Interpol. The excerpts which went into the draft which Ms Kahn sent him on the evening of 13 September 2013 included the passage from p. 136 of the first day’s transcript which I highlighted at  above, from which it was obvious that the basis upon which I was saying that there was an arguable case that Mr Boreh was implicated in terrorism was that the telephone calls were talking about the Nougaprix attack and so were after the attack. Even if, contrary to the findings I have already made, Mr Gray was not aware at the hearing that the court and counsel were proceeding on a false basis, he was aware of it when he read this and it was incumbent upon him to come back to court straightaway to correct the error.
(9) The final reason why I have concluded, regrettably, that Mr Gray deliberately misled the court at the hearing in September 2013 concerns his behaviour and reaction when Byrne & Partners wrote to Gibson Dunn on 4 September 2014 drawing attention to the misdating and pointing out that the court had been misled. I will set out my findings about this later in the judgment, but for the present I simply record that he treated their perfectly reasonable letter and subsequent correspondence with disdain and then engaged in a course of thoroughly evasive and positively misleading conduct, up to and including at the hearing on 13 November 2014. Whilst I accept that different people react to problems in different ways and it is not inconceivable that someone might try to cover up in a deliberate manner an inadvertent error, that is unlikely. Accordingly, although his subsequent evasive and misleading conduct is not determinative evidentially, it is strong support for the conclusion I have reached that Mr Gray did deliberately mislead the court at the hearing in September 2013 and that in the period from September to December 2014 he was being deliberately evasive in the hope that it would not emerge that he had been aware of the misdating error at the September 2013 and had not taken steps to correct what he appreciated was a misapprehension on the part of counsel and the court.”
THE ACTIONS AFTER THE DISCREPANCY WAS DISCOVERED BY THE DEFENDANT
One important part of the judgment was based on the attitude that Mr Gray took after the discrepancy in the dates was discovered and an explanation sought.
- “In cross-examination Mr Gray said that he took Byrne & Partners’ letter of 4 September 2014 seriously, but it is fair to say that his immediate reaction was one of disdain describing it in an email to Mr Qureshi QC on 9 September 2014 as “bollocks” and “a storm in a teacup”. He claimed in cross-examination that the whole thing had slipped his memory, which I found difficult to accept, given what I have held to have been his state of mind at the time of the hearing in September 2013.
The judgment does not get any less blunt. In response to an attempt to justify certain statements made in an affidavit the judge observed.
- “Although Mr Simpson QC expended much effort in his submissions on behalf of Mr Gray in seeking to justify paragraphs 39 and 41, in my judgment they are indefensible. Mr Gray sought to justify them in his sixth affidavit as “the absolute truth” although he recognised rightly that they “carefully” did not say that he knew about the dating error. This is the language of obfuscation and evasion. These paragraphs are a demonstration of what Lord Steyn said in Smith New Court v Citibank NA  AC 254 at 274: “It has rightly been said that a cocktail of truth, falsity and evasion is a more powerful instrument of deception than undiluted falsehood. It is also difficult to detect.“
It goes on:
“I find that Mr Gray engaged in a strategy of equivocation and evasion which was not one which any reputable and honest solicitor could ever have adopted and the concept of “acceptable evasion” is clearly anathema to the standards of professional conduct to be expected of an officer of the court. I consider that the explanation for such a dishonest strategy cannot have been to cover up an honest mistake at the time of the September 2013 hearing. Rather, it was designed to prevent his own knowledge of the misdating error and the fact that he had sat through the September 2013 hearing knowing that the court was being misled ever coming out. Although this dishonest strategy in 2014 does not prove that he deliberately misled the court in 2013, it is strongly supportive of that conclusion.””
THE IMPACT ON THE INJUNCTION
The judge carried out a detailed consideration of the relevant law relating to the duty to act in good faith and honesty when applying for injunctions.
- “Given the seriousness of what occurred and the fact that Mr Gray deliberately misled the court at the hearing on 10 and 11 September 2013, I have no doubt that applying by analogy the principles derived from the cases I have referred to at  to  above, it is necessary to demonstrate to these claimants the importance of honesty and openness in all applications to the court, a fortiori in applications for worldwide freezing relief, by setting aside the freezing injunction. As Mr Kendrick QC put it at the outset of his written submissions: “the devastation caused by the hydrogen bomb of a [freezing order] is far wider than the strict legal effect” (per Jacob J in OMV Supply and Trading AG v Clarke, 14 January 1999, quoting an earlier judgment of his own in Alliance Resources Plc v O’Brien). In cases where such wide ranging orders are sought, the importance of the court not being misled, let alone deliberately misled, cannot be over-emphasised. That is so whether the misleading is at an ex parte application or an inter partes hearing. This court operates in large measure on trust of the parties and lawyers who appear in cases before it, so that an abuse of trust such as occurred here has to be dealt with by discharging the relief which had been obtained by misleading the court.
- There are no exceptional circumstances here such as could justify either refusing to set aside the freezing injunction or granting a fresh freezing injunction. Certainly, for the reasons I gave above, there is nothing in the decision of the Court of Appeal in Eastglen which assists Djibouti. That was a case which was out of the norm on its own peculiar facts. Here, unlike in that case, there is no question of the solicitor having misled his own client as well as the court. Furthermore, for the reasons I have also given, I am far from satisfied that what occurred was entirely the fault of Mr Gray, in the sense that the strategy of concealment which essentially led him to deliberately mislead the court was one which was formulated at meetings on 27 August 2013 which were attended by the Inspector General and the Attorney General of Djibouti. Where there has been such serious and deliberate misleading of the court as occurred here, I consider the court should refuse to grant fresh relief to Djibouti in order to express the disapproval and concern of the court at what has occurred and discourage others from similar conduct.
- Accordingly, in my judgment, the freezing injunction must be set aside and I decline to grant any fresh freezing relief, on the basis that the deliberate misleading of the court is so serious that it would be wrong to let Djibouti retain any advantage from what occurred so far as the freezing injunction is concerned.”
OTHER POINTS: IF YOU TEXT IT; E-MAIL IT; SPEAK IT OR RECORD IT THEN ONE DAY IT MAY END UP BEING LOOKED AT IN COURT
One point anyone making a telephone call; text; e-mail or attendance note should take away from this case is that the solicitors (and clients) waived privilege on all their internal documentation
- “Djibouti has waived privilege, solely for the purpose of the proper determination of this application, in a substantial number of documents passing between it and its legal advisers and in internal communications between those legal advisers. Inevitably there has not been a complete waiver of privilege and there are some documents in relation to which Djibouti was not prepared to waive privilege. That is their legal entitlement and prerogative and the court must be careful not to draw adverse inferences merely from the fact that privilege has been claimed and not waived.
- It is also important to have in mind that one consequence of the waiver of privilege which has taken place is that the court has seen many of the internal discussions between the members of the legal team which no-one would have thought would ever be disclosed to the court or to the defendant. I have in mind in considering those communications, particularly where intemperate or ill-advised language is used, that it would be wrong to be over-critical of what was said when it was never intended that it would be disclosed.”
Ethics and litigation
On the duties not to mislead the court
On without notice applications and the duty of candour
- The duty of full and frank disclosure: a case in point.
- Freezing Orders and the duties owed on ex parte applications: nuclear weapons that can blow up in your face. (There are useful links to other articles on this subject in that post).
- Without notice applications for freezing orders: the dangers abound: Greenwich case contains some timely lessons