A High Court judge has ruled that a City firm’s solicitors can be given “need-to-know” designation under the law of Mozambique to assist with disclosure in a $2bn Commercial Court claim.
Mr Justice Robin Knowles adjourned the second question of whether, if designated, solicitors from Peters & Peters would face “a real risk of prosecution” in Mozambique during their disclosure work.
He said the High Court was “pleased to trust” the individual lawyers at the law firms involved in the litigation as officers of the court.
“It is relevant to emphasise this trust. The lawyers are the lawyers to a party but their duties to assist on disclosure are there to help ensure that the disclosure procedure has integrity and is not simply performed as a service to the party.”
The judge said the need for this was “reinforced by the nature of the issues in the present proceedings, which include alleged bribery in connection with major transactions” involving the Republic of Mozambique.
“Serious allegations are made against parties to the proceedings, and in the case of the republic, against some of the republic’s present and past most senior officials and office holders.
“The republic’s disclosure obligations require a search for relevant documents at a number of state entities, largely comprising ministries, councils and offices. This of course presents challenges because classified documents will be involved, with associated confidentiality or secrecy.”
The High Court heard in The Republic of Mozambique v Credit Suisse International and others  EWHC 91 (Comm) that Peters & Peters explained in a letter in December 2021 that the republic’s Attorney General would ask its Commission for the Implementation of State Secrecy for a “need-to-know” designation for some of the law firm’s solicitors.
However, last July, the republic told the court that the designation “cannot be done as a matter of Mozambican law and/or policy”.
The judge said other parties to the proceedings, including Credit Suisse, “do not accept that that is Mozambican law” and Credit Suisse argued that it would be “inimical to basic fairness, and rob the disclosure exercise of any integrity”, if search and review processes were undertaken “without direct solicitor involvement” by the ministries, councils and offices whose officials were “implicated in wrongdoing”.
Robin Knowles J said: “Even had a party not expressed the concern, the court itself is concerned, as a matter of the administration of justice, to ensure that the disclosure procedure has integrity.”
Having heard expert evidence on the law of Mozambique from two “distinguished legal academics”, the judge declared that it was lawful under Mozambican law to designate as “need-to-know” individual solicitors at Peters & Peters.
“I respectfully invite the Attorney General of Mozambique, as representing the republic before this court, to study this judgment carefully and with the assistance of Peters & Peters.”
On the question of whether designated solicitors faced a “real risk of prosecution” in Mozambique, Robin Knowles J quoted from a witness statement dating from September last year from Keith Oliver, partner and head of international at Peters & Peters.
“For reasons which are obvious, my firm would not wish to place any of its partners and employees in a position where they were exposed to any risk of being prosecuted for committing a criminal offence in Mozambique, and would regard such a step as breaching the duty of care which it owes to those persons.”
Adjourning the question, the judge said that if there was no designation, the question “does not engage”. If there was, then that was the point when the question was “most suitably addressed”.