Peter Knox KC, Rupert Butler (door tenant) and Daniel Goldblatt (instructed by Leverets) for the CS Deal Team
Robin Knowles J CBE:
Introduction
This litigation comprises 11 sets of proceedings. There are related arbitrations. In the main set of proceedings the Republic of Mozambique is Claimant (“the Republic Proceedings”). In a number of other sets of proceedings that include questions of state immunity and have become known as “the Immunity Proceedings” the Republic is Defendant.
Two years ago on 21 July 2021 I ordered that there be a combined trial, of the Republic Proceedings, of Preliminary Issues that had been ordered in the Immunity Proceedings, and of all issues that remained under a number of applications brought for stays under section 9 of the Arbitration Act 1996 (save one, which is before the Supreme Court). I ordered that the trial length was to be limited to 13 Commercial Court weeks and that the trial be listed from October 2023 to December 2023,
My reasons were given in my ruling of 21 July 2021 ([2021] EWHC 2749 (Comm)). Broadly, I sought to bring together as many of the disputes between the many parties as possible, so that as much could be decided as was necessary and possible, and within as definite a time frame as possible. There was otherwise a real danger of the litigation, and the disputes it was intended to decide, simply losing coherence and at the same time taking many years. The issues are of potentially great significance, financially and reputationally, to the state, the financial and other institutions, the businesses and the individuals involved. The allegations are of great seriousness and the sums at issue are enormous.
As well as the arbitral proceedings already mentioned there have been criminal proceedings and arbitral proceedings in other parts of the world, but this litigation is of central importance to all parties. In setting the limit to the hearing length and in fixing the dates for trial I had regard to the parties and to the proportionate requirements of this litigation between them, but also to the interests of other users of the Court.
The trial is scheduled to commence on 2 October this year, in 3 months’ time. Over the last two yearstime and resources have been dedicated to case management and preparation towards trial, working through many difficulties. The time and resources have been considerable but not disproportionate to this litigation and to the end of resolving it fairly. Witness statements for trial have been exchanged. Expert evidence across a number of fields has been exchanged and, with very limited exceptions, is to be complete by the end of July. A pre-trial review and certain further interim matters are scheduled to be heard at the end of this month and beginning of August 2023.
In litigation with many challenging areas, an especially challenging area has been disclosure. The overall endeavour here has been vast, but again not disproportionate to the issues in the litigation and to the end of resolving them at a fair trial. A number of parties are still in the final stages of providing further disclosure, although what each still has to do has been defined, and as all parties understand their disclosure obligations are continuing obligations.
I have given a number of judgments and rulings in relation to disclosure. Most have concerned the Republic’s disclosure. I have had to emphasise at several points to the Republic specifically the importance of disclosure and its particular importance in this litigation. As appears below, on 3 March 2023 I had to declare that the Republic was not complying with its disclosure duties, specifically in relation to documents held at three parts of the administration of the Republic.
Between 13 and 15 June 2023 I heard applications by a number of parties to strike out the Republic’s claims in the Republic Proceedings and to debar the Republic from defending the Preliminary Issues in the Immunity Proceedings (“the Applications to Strike Out”). These applications were based on failures, or alleged failures, by the Republic in giving disclosure, and in addressing related orders of the Court.
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