Rupert Butler and Daniel Goldblatt (instructed by Leverets Advocacy Limited) for the 3rd, 4th and 5th Defendants
Judgment by MR JUSTICE ROBIN KNOWLES CBE
First of all, I record my thanks to all parties who have had an involvement on this application for their written and oral submissions, and to the experts for their written contribution.
This judgment should be read together with my judgments previously given in this litigation, including in particular Judgment 4 ([2022] EWHC 3054 (Comm)) (the Personal Email Accounts and Devices Judgment as it has become known), Judgment 6 ([2023] EWHC 91 (Comm)) (the Designation Judgment as it has become known), and Judgment 7 ([2023] EWHC 514 (Comm)).
On 3 March 2023, in the context of disclosure in this litigation, I ordered the determination of the issue of the Republic’s control of former and current office holders’, state agents’ or employees’ work-related communications and other documents held on their personal email accounts or devices, and the steps that the Republic ought to take as a result. The determination was specifically to include ministers, prime ministers and presidents of the Republic.
In summary, the Republic adopted a practice whereby it was common for its officials and office holders at all levels to use their own e-mail accounts and devices for the Republic’s communications. This has been described and amplified in various materials.
It is clear that in the context of disclosure, within legal proceedings in this jurisdiction, “control” of documents may take various forms. One of those forms is practical control, as it may be conveniently termed.
Mr Jonathan Adkin KC, for the Republic, correctly emphasises that the search for an answer to the question whether there is or is not practical control is a search that needs to be approached with reference to principle.
As in my Judgment 4, I have regard in particular to the decision of Males J (as he then was) in Ardila Investments v ENRC [2015] EWHC 3761 (Comm) and to the Court of Appeal’s decision in North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11. These decisions have been cited in other more recent cases before this court, the Commercial Court.
In my judgment, practical control in the present case accompanies the very practice that, as I have summarised, was adopted. It did so unless there was a law preventing the presence of practical control, or there was compelling evidence to the contrary. It is only with the presence of an arrangement or understanding whereby access to documents to which the practice applied would be granted to the Republic that the practice could work.
There is no law of Mozambique to which I have been referred that prevents the conclusion just mentioned. There is no compelling evidence to the contrary.
The conclusion is far more than simply a conclusion as to close legal or commercial relationship. It even goes well beyond the relationship simply between employer and employee, official and government, or office holder and government. It is the practice itself that holds the key.
I have taken account, in addition, the insight that evidence from Ms Lucas, a former official, has given to the matter. I do not lose sight of Mr Adkin KC’s point, on behalf of the Republic, that we are dealing here with a range of different people in different positions. However the practice is one that, doing the best one can with the evidence, was relevant to all, and the conclusion is, I think, as a result, relevant to all.
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