Ras Al Khaimah Investment Authority v Azima

The Claim Form in the Al Sadeq Proceedings was issued on 28 January 2020 (coincidentally, the second day of his cross-examination). The Claim Form included brief details of claim but not the Particulars of Claim. The Claim Form was not served on any of the defendants at that stage, but was published online by www.mynewsdesk.com. In addition to the Claim Form, a copy of a complaint against Mr Gerrard to the Solicitors Regulation Authority was also published online. Mr Gerrard was not aware of the claim or SRA complaint prior to being cross-examined though both were drawn to his attention immediately afterwards as a result of the online publication.

Enyo Law wrote on Dechert’s and Mr Gerrard’s behalf to Mr Al Sadeq’s lawyers on 19 March 2020 stating that, in light of the working restrictions caused by COVID-19, they were authorised to accept service of pleadings from the Al Sadeq Proceedings by email.

The Claim Form and the 64-page Particulars of Claim in the Al Sadeq

During this time, Mr Gerrard contracted COVID-19 as did the rest of his household. He first developed symptoms and started to become seriously unwell on approximately 19 March 2020. He was advised by his doctors on two occasions that it was thought that he might require treatment in hospital. Whilst that has not been necessary, he suffered severely from the illness for some 16 days and during this time lost a stone and a half in weight. It has taken him some time subsequently to recover from the illness.

The contemporaneous material relating to the Al Sadeq Proceedings forms part of Dechert’s client files and engages questions of privilege. Material was made available to Enyo Law and Mr Gerrard from these client files from 1 May 2020 onwards for the purposes of the Al Sadeq Proceedings.

Members of the Enyo Law team were first able to discuss details relating to the Al Sadeq Proceedings with Mr Gerrard on 11 May 2020 and with the other individual defendants on 14 and 18 May 2020, respectively.

In the light of these discussions, and a subsequent review by Enyo Law on 25 May 2020 of the answers he gave under cross-examination in these proceedings, it became apparent to Mr Gerrard on 26 May 2020 during discussions with Enyo Law that he needed to correct some of those answers in order to comply with his professional duties. This realisation precipitated the letter from Enyo Law of 29 May 2020 and the production of the third witness statement.

Number of meetings/interviews with Mr Al Sadeq Mr Gerrard had said in crossexamination that he interviewed Mr Al Sadeq only once: “I only did one of the interviews myself”. In his corrective witness statement he says that he interviewed Mr Al Sadeq at least four times in September and October 2014 and on at least two further occasions, on 25 August 2015 and 25 April 2016. Mr Gerrard therefore accepts that he interviewed Mr Al Sadeq at least six times. He also accepts that he met with Mr Al Sadeq on further occasions when Mr Al Sadeq was in custody but suggests that these were meetings rather than interviews. Mr Gerrard says that the distinction between meetings and interviews is not always clear-cut but that he understands an interview to be a question-and-answer session designed to elicit information relevant to Dechert’s investigations.

Manner in which interviews were conducted / PACE Mr Gerrard rebutted allegations of his abuse of Mr Al Sadeq by assuring the Court repeatedly that he had his team adhere to due process safeguards during all interviews. Specifically, he claimed that in interviewing Mr Al Sadeq he had followed the safeguards in the Police and Criminal Evidence Act 1984 (“PACE”). He said:

Mr Gerrard now says that it was only in October 2015 (i.e. after the four initial interviews that he carried out with Mr Al Sadeq) that Dechert established a process for interviews with Mr Al Sadeq where he was being asked to provide evidence, in which Mr Al Sadeq was to be asked to agree, inter alia, that:

Presence and approval of Mr Al Sadeq’s lawyer Mr Gerrard gave evidence:

Attendance of lawyers from Al Tamimi Mr Gerrard said in his oral evidence that he went with lawyers from Al Tamimi to interview Mr Al Sadeq (Day 5, p.37, lines 11-13). He now accepts that lawyers from Al Tamimi did not attend any of the at least four interviews that occurred in 2014, or the interview in April 2016 although he says that representatives from Al Tamimi did attend various meetings involving Mr Al Sadeq and Mr Gerrard.

Mrs Al Sadeq When asked in cross-examination whether he had interviewed Mrs Al Sadeq, Mr Gerrard said he did not think he had done: Day 5, p.176, lines 11-13. He now accepts that he met with Mrs Al Sadeq on a number of occasions and asked her various questions and that some of these meetings could be regarded as interviews. He offers no particulars or other evidence as to his interactions with Mrs Al Sadeq.

Location of the interviews Mr Gerrard was asked where he interviewed prisoners, and he answered that he did so in the prison on the outskirts of the main town (Day 5, p.37, lines 8-9). He now states that he interviewed Mr Al Sadeq in: (i) the RAK general police headquarters after his initial arrest; (ii) a military prison where he was subsequently held (called Al-Barirat); and (iii) the RAK central courthouse.

Interview before charge In cross-examination, Mr Gerrard said that he did not believe that he interviewed Mr Al Sadeq while Mr Al Sadeq was in prison but before he had been charged although he noted that the criminal process operates differently in RAK (Day 5, p.43, lines 7-8). (I note incidentally that his evidence on whether he had interviewed Mr Al Sadeq before charges were put was not consistent, see paragraph 201.7 of the Judgment). He now accepts that there is no formal charge but that the allegations were formally put to Mr Al Sadeq on 11 September 2014 with the result that he did in fact interview Mr Al Sadeq before he was charged.

Mr Gerrard’s explanation for providing false evidence in cross-examination – honest inadvertence – is highly implausible and should be rejected. It is, for example, impossible to believe that, when giving evidence, Mr Gerrard simply forgot the fact that he had interviewed Mr Al Sadeq “at least” six times, rather than once. This is particularly so given that the circumstances of those interviews would clearly stick in the mind, as they (on Mr Gerrard’s new account) took place in different and memorable locations, involved travel to a foreign country and concerned very serious matters. Moreover, Mr Gerrard’s evidence that he carried out “at least” six interviews is based on drawing a distinction between “interviews” (which count towards the six) and an unspecified number of other “meetings” (which on Mr Gerrard’s account do not). But given that Mr Al Sadeq was in custody, it is specious to characterise encounters between them as “meetings” and Mr Gerrard does not explain how attending a prison to speak to Mr Al Sadeq could constitute a “meeting” in any orthodox sense. When he was questioned at the trial about his interactions with Mr Al Sadeq, he was clearly being asked about all the instances of personal interactions he had with Mr Al Sadeq, while he was in custody. It is similarly very difficult to attribute the other points now corrected to lapses of memory.

Taken together, the nature of Mr Gerrard’s evidence in relation to his dealings with Mr Al Sadeq is significantly altered and its entire tenor is changed. On the

Mr Gerrard’s contention that he did not prepare to be questioned in detail on these matters is not credible. Even on his own account, Mr Gerrard evidently expected to be questioned to at least some extent, as suggested by his use of the language “in detail”. However, Mr Gerrard would clearly have been aware that his interrogations of Mr Al Sadeq and others would be an important subject explored at trial and in his cross-examination, given that RAKIA’s pleaded case (in its CPR Part 18 response) put in issue the question of whether Dechert was conducting illegal detentions and interrogations, by pleading that stories to that effect were “false”. Mr Azima’s first witness statement (to which Mr Gerrard provided a responsive statement) referred to Mr Gerrard having a role in unlawful interrogations and detentions. The Project Update report referred in terms to Mr Gerrard’s connection with the detention of prisoners in RAK, including Mr Al Sadeq. Mr Azima’s skeleton argument set the issue of Mr Gerrard’s role in interrogations and detentions out in detail and noted that Mr Gerrard had avoided addressing it in his witness statement. It was made clear that these points would be explored further at trial.

The likely explanation for Mr Gerrard having given false evidence and for making corrections now is that he was deliberately lying on these issues at trial.

During the trial Mr Azima was not in a position to challenge Mr Gerrard’s evidence on his role with contemporaneous documents as there had been no disclosure of records of the interrogations. However, following service of Mr Al Sadeq’s claim, Mr Gerrard realised that his oral evidence can be contradicted and will be shown to be wrong by the disclosure he and his firm will now be obliged to give. Mr Gerrard has therefore been forced to attempt to take the sting out of Mr Al Sadeq’s complaint of perjury by lodging corrective evidence in these proceedings, at the eleventh hour.

Even if Mr Gerrard was honestly mistaken at the time of giving his evidence as to the matters he has now ‘corrected’, he could and should have corrected the record much sooner than he did. The Court should conclude that Mr Gerrard was aware much earlier that he had given a false account, that he deliberately held back this explanation until after the Judgment was given, and that he has also misled the Court as to the time at which he could have corrected the position. Mr Gerrard omitted to mention that the original Claim Form in the Al Sadeq Proceedings that he saw on around 28 January 2020 provided substantially more detail than the Amended Claim Form that he has exhibited to his witness statement. That detail (as also contained in the SRA complaint) included the key point that, contrary to his evidence, Mr Gerrard had interviewed (or interrogated) Mr Al Sadeq repeatedly over a two-year period. Mr Gerrard saw this information some 50 days before (on his account) he developed symptoms of COVID-19. The trial then continued for more than two weeks thereafter. Mr Gerrard only provided an indication that corrective evidence would be forthcoming more than 4 months later and only after the Judgment had been handed down.

Even leaving that point aside, there is no good explanation for the passage of some six weeks between Mr Gerrard’s recovery from COVID-19 on around (on his account) 4 or 5 April 2020, and Enyo Law’s letter to the Court of 29 May 2020. By around 5 April 2020 Mr Gerrard would have appreciated that there was a serious question over the accuracy of his evidence. It would not have been difficult for him to realise that, in particular, his evidence as to the number of occasions on which he had interviewed Mr Al Sadeq, and the circumstances in which he did so, was incorrect (as was his evidence that he had likely not interviewed Mrs Al Sadeq at all). These are matters that, with the prompting provided by the Particulars of Claim, which were served on 31 March 2020, Mr Gerrard would have realised were incorrect immediately. At that stage, he could and should have immediately written to the Court to, at the least, advise that some correction would be required and would be forthcoming as soon as the detailed position could be confirmed. Instead, that letter from Mr Gerrard came only some 6 weeks later.

Mr Gerrard suggests that the “client file” was needed to investigate the position and that this was not made available to him until 1 May 2020. It is inherently unlikely that the question of corrections could not be explored without access to the client file. The prompting given by the detailed Particulars of Claim and

Given these matters, the Court should infer that Mr Gerrard delayed providing any correction until after the Judgment had been given, in the hope that the Court would be disinclined to take any further action following receipt of it, and would essentially wave through the corrections. This tactical delay has, as a result, led the Court to make findings on Mr Gerrard’s role and credibility without having been informed of all the facts. This is a clear breach of paragraph 1.4 of the Solicitors’ Code of Conduct:

“You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).”

Mr Gerrard can now only be regarded as a dishonest witness, prepared to mislead the Court. This has profound consequences for the Court’s determination of the hacking issue and of the trial as a whole. The Court at paragraphs 377-379 of the Judgment summed up various matters that it considered pointed on the one hand to Mr Page having conducted the hacking on the Ruler’s instructions, and on the other against RAKIA’s responsibility for the hacking. The “significant features” pointing against RAKIA’s responsibility include several factors that cannot stand if the Court accepts that Mr Gerrard was a dishonest witness, tipping the balance of the analysis clearly in favour of RAKIA bearing responsibility for the hacking. These features include: (i) the inherent improbability of Mr Gerrard as a solicitor providing false evidence or conspiring with others to do so; (ii) the acceptance of Mr Gerrard’s evidence that the View from the Window document, while referring to “frauds” by Mr Azima, was only describing suspicions and was not based on information from the hacked data; and (iii) the acceptance of Mr Gerrard’s evidence that at the July 2016 meeting, he did not threaten Mr Azima, and that his challenges to Mr Azima over “HeavyLift” and “Eurasia Hotel Holdings” were not based on information from the hacked material. Moreover, Mr Gerrard’s role in RAKIA’s “innocent discovery” of the hacked data would also need to be reassessed. Taken with the Court’s other findings supporting Mr Azima’s case on the hacking issue, the overall conclusion reached in the Judgment as to RAKIA’s responsibility for the hacking cannot stand.

The Supreme Court in In Re L [2013] UKSC 8; [2013] 1 WLR 634 has explained that until a judgment is perfected in an order, the Court may reconsider and indeed reverse its judgment. The Court overturned earlier authority suggesting that this power could be exercised only in exceptional cases. Rather, the power is exercisable in order to deal with cases “justly”, and is to be exercised “judicially and not capriciously” (para 38).

The submissions above set out a compelling basis on the face of the documents for the Court to re-open the Judgment, reassess the evidence given at trial and to reconsider the Judgment and conclude that RAKIA was responsible for the hacking and that RAKIA’s claim is an abuse of process. It would be an error for the Court to proceed without providing Mr Azima with the opportunity to challenge Mr Gerrard’s account through cross-examination and then to reevaluate the (whole) matter in that light and with the benefit of appropriate further submissions.

The corrections which Mr Gerrard seeks to make are to minor inaccuracies which have recently come to his attention in the context of responding to separate proceedings. The corrective evidence relates to answers that Mr Gerrard provided in cross-examination concerning his interactions with Mr and Mrs Al Sadeq between 2014 and 2016 which were extraneous to the events in issue in these proceedings and did not form part of either party’s pleaded case. The corrections have no bearing on any findings in the Judgment or the orders that RAKIA is entitled to as a consequence of those findings.

The only substantive issue which Mr Azima alleges relates to Mr Gerrard’s corrective evidence, namely the claim that Mr Azima had procured and promoted false stories about Dechert’s involvement in the mistreatment of detainees in RAK, is one that has already been resolved in favour of Mr Azima in the Judgment.

Contrary to Mr Azima’s submissions, Mr Gerrard’s corrective evidence concerning his interactions with Mr Al Sadeq can have no conceivable bearing on the findings relating to the allegations that Mr Gerrard had threatened Mr Azima at a meeting in July 2016, a meeting that took place with a different individual, in a different country, on different dates and concerning different matters.

Mr Azima’s attempt to link Mr Gerrard’s corrective evidence to the “hacking case” does not bear examination. Mr Azima’s case was that the Ruler was “enraged” that Mr Azima was an accomplice of Dr Massaad and involved in a critical press campaign. It was not suggested that the Ruler was, somehow, motivated by Mr Azima’s threats to expose Mr Gerrard’s conduct in relation to Mr Al Sadeq. The contention that Mr Gerrard lied about the number of interviews that took place, the presence of lawyers and their location in order to conceal the true motives for hacking is manifestly absurd.

Mr Gerrard’s third witness statement makes clear that the errors in his oral evidence were made inadvertently while he was attempting to recollect the details of events that took place between four and six years previously, were not matters which he had been asked to address in his witness statements for trial

The errors have been brought to the attention of the Court and corrected by Mr Gerrard as soon as reasonably possible following their discovery during the course of responding to the Claim Form and Particulars of Claim in the Al Sadeq Proceedings which were served on him after the trial in these proceedings concluded. In making these corrections, Mr Gerrard has complied with his ongoing professional duty not to mislead the court.

Mr Gerrard’s correction of the minor errors in his oral evidence does not have any bearing on the Court’s assessment of his credibility more generally. In particular the Judgment shows that the Court was well alive to the fact that Mr Gerrard’s evidence might be unintentionally mistaken in some respects. The Judgment noted, for example, that Mr Gerrard had given evidence which in some respects was “confused” (Judgment, paragraph 307) and that Mr Azima had pointed out that Mr Gerrard’s evidence concerning his compliance with PACE “was not correct, on his own evidence” (Judgment, paragraph 201.8). The Court held that Mr Gerrard’s evidence was honest (Judgment, paragraph 63). Mr Gerrard’s voluntary and proactive correction of non-material errors in one aspect of his oral evidence, in accordance with his ongoing professional duty to the Court, is entirely consistent with – and indeed reinforces – that conclusion.

It is hardly unusual for a witness who is cross-examined at length about peripheral factual matters which are not addressed in the parties’ statements of case to make inadvertent errors in their recollection of events (particularly events that occurred several years previously). Such inadvertent errors do not constitute evidence of dishonesty. On the contrary, as Leggatt J as he then was explained in Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm), human memory is fallible and honest witnesses often make errors when recollecting past events.

The allegation that Mr Gerrard deliberately held back his corrective evidence until after the Judgment was given in the hope that the Court would be disinclined to take any further action following receipt of it, and would essentially “wave through the corrections” is either an allegation of deliberate wrongdoing against both Mr Gerrard and his solicitors, Enyo Law, who on this argument must have been complicit in this wrongdoing, or an allegation that Mr Gerrard also lied to Enyo Law about when and how he became aware of the errors. In either case, this is wholly unsupported by evidence.

If, as Mr Azima contends, the Court’s power to reconsider a judgment exists until the judgment is perfected in a final order, it would have made no sense for Mr Gerrard deliberately to “hold back” his corrective evidence until after the Judgment was delivered but before the final order was made to provide that corrective evidence. The timing of Mr Gerrard’s corrective evidence is inconsistent with any suggestion of a deliberate “tactical delay” designed to prevent the Court from taking any “further action” in respect of his corrections.

In all the circumstances, no action is required from the Court in response to Mr Gerrard’s Statement. The Court should therefore proceed to determine the consequential matters concerning interest and costs without further delay.

been involved in human rights abuses involving detainees in RAK (see paragraphs 197 and 198 of the Judgment). That issue was flagged in Mr Azima’s witness statement and in his skeleton argument before the trial. It was predictable that Mr Gerrard would be cross-examined about his dealings with Mr Al Sadeq. Mr Gerrard should have refreshed his memory about the details of those dealings before his crossexamination by reviewing his and Dechert’s contemporaneous records. If he had not done so, or was for any reason unable to recollect the events about which he was being cross-examined, he should have made that clear to the Court.

Day 5, p.36: “Q. So you interviewed detainees who had been detained at the hands of RAK, did you?

A. Yes, with their agreement and the agreement of their lawyers”

Day 5, p.45: “He had his own lawyers present who were perfectly happy with the situation.”

On the involvement of Al Tamimi (emphasis added):

Day 5, p.37: “Q. And you went there to interview prisoners?

A. I went there with Al Tamimi, the local law firm, to meet prisoners at their agreement and the agreement of their lawyers”

On PACE (emphasis added):

Day 5, p.39: Q. And that material hasn’t been disclosed, has it, Mr Gerrard?

I have no idea whether it’s been disclosed or not. My – the lawyers have had complete access to all our material. I don’t know what was relevant or what was not.

Frankly, I cannot see how an interview following PACE, which we insisted on, whereby the detainee had agreed to be interviewed…”

Gerrard could well have conducted the meeting on 16 July 2016 in a forceful and even aggressive way (paragraph 331). My conclusion as to the inherent improbability of RAKIA’s witnesses conspiring together to conceal RAKIA’s role in the hacking was based on my view as to their likely fear of detection rather than on any assumed disinclination on the part of Mr Gerrard to give false evidence (paragraph 378.5).