EURASIAN NATURAL RESOURCES CORPORATION LIMITED v DECHERT LLP

Table of Contents

This case consists of two actions brought by the Claimant, Eurasian Natural Resources Corporation Limited (“ENRC”) which have been managed together for some considerable time, and which have now been tried together. In the first action (“the 2017 Action”), ENRC made claims against two Defendants (collectively “the Dechert Defendants”). The First Defendant, Dechert LLP (“Dechert”), is a well-known firm of solicitors. The Second Defendant, Neil Gerrard, is a solicitor now retired from practice. Between 23 April 2011 and 31 December 2020, he was a Partner in Dechert. Before that, he was a Partner in DLA Piper UK LLP (“DLA”), which he joined in 1995. As both Defendants are jointly represented, I shall refer to them collectively (in the singular) as “Dechert” unless the context otherwise requires.

In the second action (“the 2019 Action”), ENRC brought claims against the Director of the Serious Fraud Office (“the SFO”). The SFO was joined into the 2017 Action as third party by Dechert. Conversely, Dechert was joined into the 2019 Action as third and fourth parties by the SFO.

The events to which this case relates occurred principally between December 2010 and June 2013. Between 24 December 2010 and 22 April 2011, DLA was retained by ENRC, principally acting by Mr Gerrard. Between 23 April 2011 and 27 March 2013, Dechert was retained by ENRC, again, principally acting by Mr Gerrard.

At all material times, ENRC was and is an international mining conglomerate. Between 12 December 2007 and 25 November 2013 it was listed on the London Stock Exchange, and formed part of the FTSE 100 list of companies as from 12 March 2008. It ceased to be a Plc on 16 January 2014 and was then re-registered in its present name. It had substantial mining operations in Kazakhstan, including through its indirect subsidiary Sokolov-Sarbay Mining Production Association (“SSGPO”). By 2006, ENRC had annual revenues of more than US$3 billion and accounted for 4% of Kazakhstan’s GDP.

Put very broadly, ENRC retained Mr Gerrard to advise on and assist it with various internal investigations into some of its operations in Kazakhstan and then also the Democratic Republic of the Congo (“DRC”) in particular, where it was thought that they may have been tainted by bribery, corruption, and fraud. The immediate catalyst for Mr Gerrard’s involvement was the sending to ENRC of an anonymous whistle-blower’s letter on 20 December 2010 which made serious allegations about ENRC’s operations in Kazakhstan (“WB1”). A particular concern for ENRC was whether the SFO might decide to intervene and launch a criminal investigation into its activities. As will be explained in more detail below, at the time when DLA was first instructed, it was possible for the SFO to bring charges against a company and/or its directors even where the relevant events occurred outside this jurisdiction provided that certain conditions were met. After the coming into force of the Bribery Act 2010 (“the Bribery Act”) on 1 July 2011, it was easier for the SFO to exercise this “international reach” of its powers. A key objective for ENRC was to avoid any criminal investigation, and if it had to engage with the SFO, to do so in a way which would lead to a form of civil settlement (again put very broadly, but explained in more detail below) instead.

In the event, the SFO did become directly involved with ENRC on 10 August 2011 when it first wrote to it (“the SFO Letter”). The day before, The Times had published an article (“the August Article”, as further defined at paragraph 86(1) below) which contained a number of serious allegations about ENRC and its failings, based to a large extent on ENRC’s confidential information. In short, there had to have been a major leak from someone to facilitate the publication of this article (“the August Leak”).

In the following 20 months or so, ENRC engaged with the SFO in various ways including at a number of meetings, while also seeking to progress its own internal investigations which themselves were of interest to the SFO. During that period, the SFO did not launch a criminal investigation - but neither was a civil settlement reached. On 25 March 2013, Dechert’s retainer was abruptly terminated by ENRC. On 17 April 2013, the SFO decided in principle that it would now launch a criminal investigation into ENRC and this was confirmed on 19 April. Nine years later, that investigation is still ongoing and has yet to conclude with the bringing (or decisively not bringing) of any criminal charges. The fact of this ongoing investigation has given rise to one of the remarkable features of this case which is an effective “Chinese wall” within the SFO so that information about the criminal investigation does not itself seep into the evidence given by the numerous SFO witnesses who have testified before me.

Initial estimates for the work to be done for ENRC by Dechert, as at 29 March 2011, were around £400,000 although on any view, these were early days. But in the event, the total fees charged by Dechert up until 27 March 2013 were some £13 million, while work done by relevant third parties exceeded £11 million.

The claims made by ENRC against Dechert and the SFO are of the most serious kind. As against Dechert, it is said that Mr Gerrard acted in gross breach of his duties as a solicitor by, among other things, disclosing clearly confidential and/or privileged information to the SFO and expanding the scope of ENRC’s investigations greatly, in order to generate massive amounts of legal fees. It also alleges that the instigator of the August Leak was none other than Mr Gerrard himself. ENRC also says that he facilitated two other leaks to newspapers and anonymously provided a number of privileged documents to the SFO in June 2013 (“the June 2013 Material”, as further defined at paragraph 1446 below). Other allegations include the giving of wrong advice in numerous respects.

While, of course, the core claims against Mr Gerrard, whether in contract or tort, would require it to be shown that he was negligent, the claims here go beyond that. That is first, because, on the facts, ENRC alleges that Mr Gerrard had engaged in a deliberate (or at best reckless) course of conduct. Second, because of the existence of a limitation of liability clause in Dechert’s contract of retainer with ENRC, it might be necessary for ENRC to show at least recklessness, as opposed to mere negligence.

As for the SFO, ENRC claims that certain of its officers (and through them, the present Director as a matter of vicarious liability) were not merely aware of many of Mr Gerrard’s breaches of duty, they actively participated in them to the extent that they were liable for the tort of inducement to breach of contract and/or fiduciary duty, the latter breaches being on the part of Mr Gerrard. A further or alternative claim is that they were guilty of misfeasance in public office because of the way in which they conducted themselves in relation to Mr Gerrard and as against ENRC. Put bluntly, in respect of both such claims, it has to be shown that those officers were either dishonest or reckless or guilty of bad faith in the required sense. One of the allegations is that the former Director of the SFO, Richard Alderman, while in post, secretly met with Mr Gerrard prior to the publication of the August Article, and Mr Gerrard provided to Mr Alderman the gist of the leaked information or at least tipped him off about the article.

Again, in very broad terms, ENRC alleges that, but for such conduct on the part of Mr Gerrard and the SFO, the SFO would never have become seriously interested in ENRC at all, and ENRC would not have voluntarily engaged with it; alternatively ENRC could have reached a resolution with the SFO after a far more modest investigation and with far less legal or other work being required. And on any view, the SFO would never have launched the criminal investigation which it did. Almost all questions of causation and loss have been put off, either for a further judgment (if required) although still based on this trial (Phase 1A) or for a further trial (Phase 2). This judgment deals with what have been called the Phase 1 issues.

The sums claimed by way of damages or other monetary relief, as against both Dechert and the SFO are as follows:

In addition, exemplary damages are claimed against the SFO on the basis of its alleged oppressive, arbitrary and unconstitutional conduct. Further, declaratory relief is sought against the SFO to prevent it making any use of the confidential and privileged information disclosed to it in breach of Dechert’s duties, as well as the removal from its criminal investigation team of any individuals who reviewed such material.

Save in one (important) respect, Dechert firmly deny all of the allegations against them. They also allege, if necessary, contributory fault on the part of ENRC as well as raising a limitation defence and a further defence based on the limitation of liability provision referred to above. However, Dechert have now admitted one reckless breach of duty on the part of Mr Gerrard in relation to what I shall refer to as “the Depel Interview”. This admission was made following the end of witness evidence and as a result of evidence given by Mr Gerrard in cross-examination, itself following the late disclosure of a large number of text messages to and from Mr Gerrard.

As for the SFO, it equally robustly denies the allegations against it. If necessary, it also relies upon a limitation defence. In addition, and in respect of much of the claim based on its knowing or reckless receipt of ENRC’s confidential information via Mr Gerrard, it relies on various findings made by Andrews J (as she then was) in earlier proceedings between ENRC and the SFO (“the Privilege Proceedings”). It contends that this Court is bound by those findings so as to acquit the SFO of much of its alleged wrongdoing. This has been referred to as the SFO’s “Abuse of Process” argument.

Finally, there are contribution claims going both ways as between the Dechert Defendants and the SFO. These are made solely pursuant to s1(1) of the Civil Liability (Contribution) Act 1978 (“the 1978 Act”).

ENRC itself was formed in December 2006 to become the holding company for the ENRC natural resources group which had itself acquired most of its assets in the privatisation process undertaken in Kazakhstan in the mid-1990s. Its principal base of operations and location of assets was in Kazakhstan.

The three founding shareholders were Alexander Mashkevitch, Alijan Ibragimov, and Patokh Chodiev (“the Founders”, sometimes referred to in this litigation as “the Trio” but I shall use the former expression). Following ENRC’s admission to the LSE, each of them would hold 14.9% of the issued Ordinary Shares making 44.7% collectively. This was identified as a Risk Factor at p22 of the Prospectus for ENRC’s IPO (“the IPO Prospectus”), because as a result of that shareholding,

“the Founders… will be able to exercise significant influence over all matters requiring shareholder approval, including the election of directors and significant corporate transactions. In addition, each of the Founders has appointed a representative to the Board. Although the Company has entered into a relationship agreement with each of the Founders to enable the Group to carry on its business independently… there can be no assurance that the Founders will not continue to exert significant influence over the Group’s operations and employees.”

Other significant shareholders included the Republic of Kazakhstan with 19.7% and a subsidiary of Kazakhmys Plc, another Kazakh mining company, with 14.9%.

These were, at the material times, or are, as follows (in alphabetical order as with the further lists below):

The AC was the ENRC body which formally instructed DLA and then Dechert. Its members consisted of Mr Ammann until August 2012, whoever was the chairman at the time (Dr Sittard, then Mr Dalman), Mr Thompson, SPJ and Sir Ken Olisa.

In a letter from DLA dated 29 March 2011 (“the DLA Letter”) addressed to the AC and sent by email to Dr Sittard, Mr Ammann, SPJ and Sir Ken Olisa, DLA recommended that a new Investigation Committee (IC) be formed to provide DLA with instructions and assistance on the investigation and which would be empowered to do so by the AC for that purpose. DLA would then report to and take instructions from the IC while continuing to report monthly to the AC. DLA suggested that the members of the IC should be a member of the AC together with Mr Barker and Mr Depel. The DLA Letter is a significant document for other reasons as well as will be seen in due course.

The IC was duly set up with Mr Ammann as the Chairman but it did not include Mr Depel. He was vetoed by Mr Ammann and Mr Barker who, by now, were frustrated with his lack of professionalism. This was reflected in Dechert’s Engagement Letter dated 27 April 2011 which was addressed to Mr Barker and Mr Ammann. It acknowledged ENRC’s instructions to Dechert to advise the AC, with instructions being taken from Mr Ammann and/or Mr Barker for that purpose, and Dechert communicating with the AC and/or the IC as necessary. Mr Barker was replaced by Mr Ehrensberger on the IC following the former’s resignation in July 2011.

In January 2012, a new committee called the Special Investigation Committee (SIC) was formed to oversee the investigations then underway and to be the instructing body for Dechert, as set out in Dechert’s letter of 17 January 2012. Its initial members were Dr Sittard, Mr Ehrensberger and Mr Wilkinson. It therefore replaced the AC as the formal instructing body.

Mr Gerrard has already been identified in paragraph 1 above. Other personnel involved were:

These included:

These included:

These were, or are, the following:

As would be expected, there has been a mass of documentary evidence, principally in the form of emails, along with notes of meetings and telephone calls. Such notes vary both in form (i.e. manuscript or typed) and level of detail. Their accuracy, and indeed meaning, have been the subject of many disputes at trial. In addition, certain individuals never, or hardly ever, took notes, in particular Mr Gerrard himself. But this was also true (though over a shorter period) of Mr Alderman, the SFO’s Director from November 2008 to 20 April 2012, and Mr Gould, who was employed by the SFO between January 2008 and January 2015. Indeed, one allegation made by ENRC is that some or all of these failures to take (or take proper) notes, were themselves deliberate.

There were also disclosed a number of telephone records which in particular showed calls made and taken by Mr Gerrard. The dates and times and length of the calls were provided but obviously not their content.

A major development in the disclosure in this case (presaged above) was the belated disclosure of more than 600 text messages to or from Mr Gerrard, back-up copies of which had been retained. The existence of those copies was communicated by Clyde & Co, for Dechert, in the evening of 6 July, being Day 23 of the trial and Day 6 of Mr Gerrard’s (continuing) cross-examination. This led to disclosure of further material in a rolling process, but which was undertaken as fast as possible for obvious reasons. I discuss this aspect of the case in more detail below. No party has suggested that this development in disclosure was not of considerable significance.

For ENRC I heard from the following witnesses:

Mr Zinger did not give live evidence but his Witness Statement (“WS”), filed on behalf of ENRC, was permitted to be adduced as a hearsay statement. The same applies to Leann Adams, who was PA to Mr Gerrard from July 2008 to December 2019, moving firms with him.

For Dechert I heard from:

For the SFO I heard from:

In addition, the SFO served a WS from Mr Coussey on 10 December 2020. For good reason, as set out in a confidential WS, the SFO decided not to call him as a live witness; Mr Coussey’s WS has however been adduced as a hearsay statement. In addition, there are WSs from the following SFO witnesses whom neither Dechert nor ENRC wished, in the end, to challenge: Susan Givens (the SFO’s Head of Communications), Gillian Anderson, Ian Chapman, Terence Coleman, Jacqueline Connery, Janet Dias, Joy Hamilton, Narelle Morley, Christopher Lee Man Yan (all working in Materials Management), Mark Ashton, Ceri Davis, Jonathan Chung-to Chan, Michael Fenner-Evans, Benjamin Griffiths, Matthew Herdman, Ida Hoyer, Abigail McClements, Andrew Parratt, Lily Riza and Jamie Sharma (all working on the QUT01 case team).

All the above live witnesses are listed in order of their appearance at trial.

There were two witnesses who had been expected at an earlier stage to appear and give evidence but in the event they did not. The evidence of both would have been of considerable importance had it been given. For the reasons set out below, there is not a hearsay statement tendered in respect of either of them.

The first is Mr Alderman himself. The SFO was in touch with him since June 2019 and had indicated in its Case Management Information Sheet dated 28 April 2020 that it anticipated calling him (along with Keith McCarthy - see below) and others. However, it appears that the SFO did not tell Mr Alderman that they wished to call him until August 2020. In the event, he refused to provide a WS and said he had “personal and sensitive reasons” for not giving evidence which the SFO said were unexplained at the time. It did not issue a witness summons against him until 13 May 2021. This was shortly before the opening of the trial on 24 May and the commencement of the evidence on 7 June. On 17 June, being Day 13 of the trial, the SFO intimated that it was going to apply to set aside its witness summons, and it did so the following day. The evidence in support of that application included a confidential exhibit which I have seen. The result was that I agreed that for personal reasons entirely unconnected with this case, Mr Alderman was not then in a position to give evidence and the summons was set aside. ENRC asks the Court to draw an adverse inference (if required) from the ultimate non-appearance of Mr Alderman or indeed any evidence adduced on his behalf. I deal with that question below.

The second person is Keith McCarthy, employed by the SFO between 2008 and December 2011. He was its Chief Investigator from 2009 until he left. ENRC had obtained a WS from him in May 2018. At all material times, Mr McCarthy had his own separate legal representation. ENRC informed the SFO that Mr McCarthy had met with its solicitors but they had not been able to obtain a full account from him of relevant matters because of legal restrictions which his lawyers said were in place which would limit what he could say about his time at the SFO (see paragraph 49 of the first WS of Michael Roberts of Hogan Lovells dated 8 June 2018). Some time later, by a letter dated 13 January 2020, and in the context of a dispute about the provision of Further Information by ENRC, Eversheds, acting for the SFO, said that it would not release him from the confidential obligations which he continued to owe to the SFO, as a former employee. Subsequently, ENRC notified the other parties that it was not going to call Mr McCarthy. Indeed, in Hogan Lovells’ letter of 6 February 2020 it suggested that since, in effect, the SFO had “gagged” Mr McCarthy, it was incumbent on the SFO to call him as its witness. The SFO did not do so. In fact it (and Dechert) ask the Court to draw an adverse inference, this time against ENRC, in respect of its failure to call Mr McCarthy.

There is then one further person who did not give evidence although ENRC did not intimate that he would be called. This is Mr Felix Vulis, CEO of ENRC between 20 August 2009 and 15 November 2014 and currently the sole director of ENRC. This is despite the fact that he has signed almost every statement of truth made on behalf of ENRC. The SFO invites the Court to draw an adverse inference against ENRC in respect of the absence of this potential witness as well.

In this case, I do not propose at the beginning to set out in general terms my views of the key witnesses. Their credibility or otherwise will emerge in the course of the judgment as I deal with their evidence on particular matters and make general observations as necessary in that context.

Certain observations I made in the case of PCP v Barclays Bank [2021] EWHC 307 (Comm) are apposite here also. Thus,

Despite the (largely) sequential approach I have taken to determine the numerous issues arising between ENRC and Dechert and the SFO, I have also undertaken the exercise of assessing the evidence cumulatively and holistically when considering in particular whether a witness’s evidence on a particular point should be accepted or not.

Next, given the length of the trial, the number of witnesses, and written submissions, amounting to over 1,500 pages (over 1,180 being in closing) with many hundreds of footnotes, followed by two weeks of oral closings, it is simply not possible for me in a judgment of any manageable length to deal with every single point and every single piece of evidence relating to every point. I have, nonetheless, read and listened with care to all the submissions made and evidence given even if they are not all identified in this judgment and have dealt with all the key points.

Concomitant with that approach, not every matter which, strictly speaking, was required to be put to a particular witness was put. In most cases, that was justified, given time constraints and in some cases a point which was put was sufficient where there were other similar points. That said, there were, in my view, a number of significant matters which were not put to witnesses and should have been. I deal with those instances, and whether the failure to put a matter made any difference, below.

Equally, it was agreed that all sides could refer in their closing submissions to documents which were not in fact read out or put in the course of the trial, albeit they were in the trial bundle. In the event, I have had to consider many such documents.

It has been necessary in this judgment to cite or quote from a very large number of contemporaneous documents. Where I do so, and in order to assist the reader, I have reformatted them, save where their particular format is relevant and so should be preserved.

Given the number of issues, many of them interlocking, it would be impossible to undertake a chronological survey of all the evidence and necessary findings of fact in one go, as it were. However, within the description and analysis of the 30 Disputed Contacts (“DCs”, explained at paragraph 86(2) below), I have endeavoured to interpose or inject other relevant events, so that a sense of the overall chronology can be given. I have attempted to assist this by a relatively brief chronology which forms Appendix 1 to this judgment. I have also set out as Appendix 2, a dramatis personae, which essentially reproduces that contained in paragraphs 21, 26, 27 and 29 above, but which might be useful as a separate document when reading this judgment.

ENRC’s engagement with the SFO and with Dechert has spawned a substantial amount of litigation, quite apart from the two claims before me. This includes the following claims brought by ENRC:

In addition, on 2 February 2016, the SFO issued a Part 8 claim seeking a declaration, for the purposes of the criminal investigation, that ENRC was not entitled to refuse to disclose or produce certain documents subject to notices issued by the SFO under s.2 of the Criminal Justice Act 1987 (the “1987 Act”) on grounds of legal professional privilege (the “Privilege Proceedings”). This was dealt with in a judgment of Andrews J (as she then was) on 12 May 2017. An appeal against her decision was allowed in part by the Court of Appeal on 5 September 2018.

On 25 September 2007, HS produced a report for ENRC (“the HS Report”). It was concerned with possible irregular business practices in relation to end customers in Russia who had purchased ENRC products from companies referred to as the Russian Trading Structure (“RTS”). Although the relevant transactions ceased in 2006, there were possible further liabilities in relation to them and accordingly, the RTS issue was disclosed as a Risk Factor in the IPO Prospectus.

On 11 March 2010, Peters and Peters LLP produced a report for ENRC dealing with 3 areas of concern in relation to the operations of SSGPO in Kazakhstan (“the PP Report”).

Matters discussed in the PP Report were then investigated internally by ENRC’s Internal Audit team with conclusions set out in a report for the AC dated 5 August 2010 (“the 2010 IA Report”).

In November 2009, ENRC acquired the Central African Mining and Exploration Company Plc (“Camec”), an English mining company operating in Africa through subsidiaries (known internally as Project Crete). Due diligence was carried out by HS and PwC among others. AF advised in relation to the sanctions aspects of the acquisition.

Prior consent for the acquisition was given by the Serious Organised Crime Agency (“SOCA”) on 16 September 2009 pursuant to a Suspicious Activity Report (“SAR”) issued the previous day by HS on behalf of ENRC. This was about Camec’s potential involvement in sanctions breaches and the potential interests of sanctioned individuals including Muller (“Billy”) Rautenbach, a Zimbabwean businessman. He had been subject to financial sanctions in the EU and UK between January 2009 and 17 February 2012 and in the US between November 2008 and April 2014. Mr Rautenbach’s interest in Camec was thought to be through a company called Harvestview Ltd which had a minority shareholding in it. That shareholding was “frozen” by ENRC after the acquisition so as to comply with EU and US sanction regimes.

In February 2010, ENRC acquired Chambishi Metals Plc (“Chambishi”), the owner of the Chambishi copper and cobalt mine in Zambia. Due diligence was carried out by JD and PwC, among others.

ENRC acquired Congo Cobalt Corporation (“CCC”), a company registered in the DRC in July 2010.

On 20 August 2010 ENRC acquired a 50.5% shareholding in Camrose Resources Ltd (“Camrose”), a BVI company indirectly holding various mining interests in the DRC (known internally as Project Pine). This shareholding was acquired from a group of companies indirectly owned and controlled by Dan Gertler, an Israeli businessman. Legal due diligence was carried out for ENRC by HS and other advisers, including AF. The consideration paid by ENRC was a total of $175 million. ENRC also agreed to make a shareholder loan to the company totalling US$400 million (“the Camrose Loan”). $35 million of that was said to have been drawn down by a company called Metalkol and is referred to in more detail below.

At the same time, it was understood that Camrose would be acquiring 100% of the Highwind Group of companies thought to be beneficially owned by Mr Gertler. The Highwind Group in turn owned 70% of Metalkol. This company owned a valuable mining permit in relation to the Kolwezi mines in the DRC (“the Kolwezi Licence”).

SOCA consent was obtained for this transaction pursuant to two SARs dated 12 July and 16 August 2010 dealing with the link between the Highwind Group and Mr Gertler, and various proposed financing arrangements.

Controversy surrounded Camrose. This is because First Quantum Minerals Ltd (“FQ”), the former owner of the Kolwezi Licence, alleged that this licence had been illegally revoked by the Congolese Government in 2009 and that Mr Gertler then unlawfully acquired it for US$20 million. FQ said that the licence was transferred to the Highwind companies and thereby to ENRC pursuant to the acquisition of those companies, for $175 million. It was said that the acquisition of the licence by Mr Gertler was corrupt and at an undervalue. In September 2010, FQ brought proceedings against the Highwind Group of companies, now owned by ENRC. In early 2012 the dispute was settled by ENRC agreeing to pay to FQ £1.25 billion.

By late 2012, ENRC had resolved to buy out Mr Gertler’s minority 49.5% interest in Camrose, which was believed to have been held through a company called Cerida. ENRC obtained approval for the acquisition from SOCA on 7 December 2012 pursuant to a SAR filed on 30 November 2012. The acquisition, internally known as Project Moses, completed on 28 December 2012.

These corporate acquisitions are not merely relevant by way of background. Elements of them ultimately featured as part of Dechert’s investigation.

On 20 December 2010 an email was sent anonymously to Kazakhstan’s Committee for National Security and its Chief Prosecutor’s Office as well as to the Almaty, Astana and London offices of ENRC. This was WB1. It read as follows:

“I'm an engineer of the supply/purchasing department at the SSGPO JSC, Rudnyi, Kostanayski Region, and I'm writing to you on behalf of a group of 4 employees to report certain facts of corruption and financial wrongdoings, that have been happening at the enterprise in the last few years. The relatives of the director are constantly present at the Rudnyi headquarters, and are intentionally and out of self-interest limiting competition amongst those taking part in the tender processes/potential suppliers. Currently, 90% of those who work with the enterprise, are those who give kick backs to the director and his relatives. To facilitate this, various manipulations are happening at the tendering stage. Some of the acquired machinery is not at all included in the tenders organised on ENRC's goods and services purchasing website, and is instead bought directly at inflated prices. Moreover, the machinery is very often of low quality and doesn't comply with the stated requirements. The managers, and also their deputies, of all the subdivisions are forced to buy the machinery at inflated prices.

For example, deputy head of security Razmat, is not hiding and boasts about having monthly kickbacks worth $200,000 - 300,000. Farhad Ibragimov also doesn't hide that he receives $30,000 - 40,000 every month, protecting himself with his highly esteemed uncle's name. Former employee - Satyr Parhatovich Sadykov, has not been employed by SSGPO for a few years, but nevertheless freely accesses the central office and in having enormous influence and support from highly-placed relatives, is threatening procurement engineers with redundancies and is literally shoving equipment that, according to our factory workers, is poor quality and often second-hand from the Pervouralsk and Uralmash factories. The father of SSGPO's Director's wife, is not an employee of the SSGPO, however using his connections as a relative of the esteemed Mr Shodiev, is forcing the purchase, at hyper inflated prices, of Rudgormash factory's equipment for the SSGPO and for other company enterprises.

It is also widely known that the director of the SSGPO has bought a state-owned farm in our region and it is known for a fact, that payment for the equipment, spare parts and running repairs is coming out of the SSGPO's budget.

For obvious reasons we are unable to disclose our surnames, but we hope that you will conduct the necessary investigations and take the necessary measures.”

By the time of WB1, questions had already been raised in the press about ENRC’s approach to corporate governance. Its investments in the DRC had also attracted attention because of the DRC’s low ranking in terms of perceived corruption. There was added focus to all of this because of the forthcoming Bribery Act.

It was also clear that, internally, ENRC was somewhat dysfunctional. It had recruited SPJ, Sir Ken Olisa and Sir Richard Sykes as eminent non-executive Directors at least in part to assuage concerns about its own governance. Once there, they objected to the roles of Mr Ammann and Mr Vulis, and they also stressed to the Founders the need for the Board to operate independently. In June 2011, as already noted, Sir Ken Olisa and Sir Richard Sykes were not reappointed as directors.

In the course of Dechert’s investigation, it is fair to say that ENRC’s directors and officers did not always speak with one voice. Indeed, Dechert’s original case was that particular individuals positively acted to obstruct that investigation, although ultimately this point was not pursued with the relevant witnesses or in its submissions.

Mr Gerrard had been an officer in the Metropolitan Police prior to qualifying as a solicitor in 1991. He became a Partner at Pannone in 1993, practising in corporate crime, and his clients included Ernest Saunders and Asil Nadir. He was headhunted by DLA in 1995 whereupon he became an equity Partner. He established its Regulatory and White-collar Crime department, became Head of White-collar Crime Europe in 1998 and Global Co-Head of Regulatory, and then Litigation and Regulatory, in 2005 and 2006 respectively. He had been ranked as a leading practitioner in fraud and corporate crime in the Chambers and Legal 500 directories since 2010.

Subsequent to the termination of Dechert’s retainer on this case in March 2013, Mr Gerrard worked on other matters involving the SFO. In particular, his team at Dechert acted in relation to a Deferred Prosecution Agreement (“DPA”) negotiation on behalf of Airbus SE as approved by the Crown Court on 31 January 2020. The DPA involved a fine of €991 million and followed a global investigation covering 5 jurisdictions and lasting for years. He retired, from Dechert and practice, later in 2020.

It is therefore unsurprising that Mr Gerrard held himself out as a specialist in corporate crime and someone who was very familiar with the SFO and how it worked.

According to Mr Ehrensberger, JD had been one of ENRC’s regular corporate advisers and he had worked with them extensively in his previous role as Head of M&A which was from March 2008 to July 2011. That period, of course, covered the Camec, Chambishi and Camrose acquisitions. However, HS were also corporate advisers for ENRC. They had acted in that capacity on the Camec and Camrose deals, whereas JD had so acted in relation to Chambishi.

It is said that JD also had a role in the Camrose acquisition. That is because the Camrose Due Diligence Report has a cover with the name only of JD on it. However, that is the only reference to JD in that document. The cover sheet “Legal Due Diligence” after the index bears the name of HS. If they had a role in connection with Camrose it is not clear what it was. It was HS which filed the two SARs in July and August 2010.

On the other hand, JD did act on the later buyout of Mr Gertler’s shareholding in Camrose in late 2012 and it filed the single SAR in respect of that. It had also acted for ENRC on the IPO in 2007.

It is necessary to sketch out in the broadest terms the investigation work which DLA/Dechert was instructed to perform as there will be many references to its elements hereafter.

On Kazakhstan, the investigation was all about SSGPO. Two principal points were raised in WB1 (see paragraph 66 above):

Then, in January 2011, Mr Depel raised an issue as to whether SSGPO had been selling materials to Iran in breach of sanctions. This was the Iran Allegation.

Then, in February 2011, ENRC’s Internal Audit reported an allegation that the son of a local police chief in Kazakhstan had been given a scholarship by SSGPO to study at the University of Michigan. Scholarships were meant to be limited to children of employees and did not usually extend to universities abroad. This was the Education Allegation.

Finally, in December 2011, an allegation arose from a whistleblower that SSGPO was paying other companies to do the work of topsoil removal, known as “stripping”, at various sites, which work was not done because SSGPO was doing it itself. This was the Stripping Allegation.

All of the above formed part of ENRC’s engagement with the SFO which was commenced on 9 November 2011.

On Africa, following the engagement with the SFO, the investigation broadened to include various aspects of the Camrose, Camec and Chambishi acquisitions referred to above.

The only formal communication to the SFO in writing that transpired was the Kazakhstan report which arrived in draft on 30 January following the Rappo Letter of 23 January 2013 and then the final version on 28 February. The Africa investigation was still ongoing, with no report, when Dechert’s retainer was terminated on 27 March, 2013.

On the primary issues of liability, there is only a limited number of legal issues. Most of the issues I have to resolve are ones of fact.

I will set out below the key issues in the claims against Dechert and the SFO. Later in this judgment I will determine the nature and scope of the duties that each of Dechert and the SFO owed to ENRC. Further issues on liability will be discussed after I have set out my analysis of all the alleged breaches of duty.

These are alleged, essentially, to be the following:

I have dealt below with those allegations though not necessarily in that order or quite as formulated. I have been guided, ultimately, by how the allegations were framed in ENRC’s written Closing.

Dechert deny the allegations recited above, essentially on the facts. Sometimes, they agree the facts but argue that no breach of duty resulted. But in addition, and as subsequent points,

The key factual allegations underlying the claims for inducement and misfeasance in public office are as follows, noting the particular SFO personnel said to be involved:

The allegations of wrongdoing in sub-paragraph 89(3)-89(7) above is made in the context of a claim in misfeasance only.

It is then said that this conduct amounted to the tort of inducement to breach of contract or fiduciary duty and/or misfeasance in public office, broadly as follows:

ENRC says that it was plain to the relevant SFO officers at the time that conduct of this nature - resulting in a very public and never-ending criminal investigation - would cause ENRC huge reputational, consequential and other losses (quite apart from the fact that ENRC was paying Dechert very large sums in fees during the course of the Retainer).

I have set out broadly, ENRC’s case on causation and loss at paragraphs 12-14 above and the denials by Dechert and the SFO of the entirety of the claims against them in paragraphs 15-16 above.

In fact, the only matters for determination in this judgment on causation and loss concern ENRC’s contention that, but for the SFO’s wrongful conduct, (a) the SFO would not have sent the SFO Letter and (b) ENRC would not have agreed to enter the Review Process with the SFO on 9 November 2011. This is in turn denied by the SFO.

The primary statements of case have undergone more than one amendment. Unless the context otherwise requires, I shall simply refer to each of them as “the Particulars of Claim”, “the Defence”, etc.

For the purposes of dealing with a number of issues hereafter, it is necessary to sketch out the elements of a number of different criminal offences, principally (but not exclusively) concerned with bribery and corruption. I have taken those offences from lists provided to me by both ENRC and Dechert.

Put broadly, s1(1) and (2) thereof make it an offence to take or give (respectively) a bribe. The person bribed must be a public officer. The relevant conduct must take place (a) in the UK or (b) anywhere else provided that it was committed by a British national or UK incorporated company. The 1889 Act applied until 1 July 2011. It applied to conduct wholly outside the UK as from 14 February 2002.

For a company to be convicted, the corrupt intention to induce or reward must be held by its “directing mind and will” (“DMW”).

Offences similar to those set out in s1 of the 1889 Act are provided for in s1 of the 1906 Act, except that the person bribed is not limited to a public officer but may be any “agent”. There are certain other differences between the 1906 and 1889 Acts, but it is not necessary to examine them here.

The provisions concerning conduct outside the UK and the relevant mens rea are, however, the same as in the 1889 Act.

It is at common law an offence to give or offer a bribe to a public official or for a public official to receive or solicit a bribe. Once more, the application of this to conduct outside the UK and the mens rea requirements are the same as for the 1889 Act.

This applies to conduct committed wholly after 1 July 2011. It replaces the bribery offences listed above from after that date.

Section 1 deals with bribing a person. It requires an intention on the part of the defendant to induce a person to perform improperly a relevant function or activity (themselves defined) among other things. In the case of a company, that intent must be held by its DMW.

As to jurisdiction, the UK Courts have jurisdiction if any act or omission forming part of the offence is committed within the UK. If not, they will still have jurisdiction if a person’s acts or omissions outside the UK would form part of the offence if done in the UK and that person has a “close connection” with the UK. Such a person would include a British citizen and a UK-incorporated company. However, in a new development from previous law, it would also include a non-British national who is ordinarily resident in the UK.

Section 2 deals with the taking of bribes. This includes the case where a person accepts a financial advantage, intending that, in consequence, a relevant function or activity should be performed improperly. The jurisdictional position is the same, pari passu, as for s1.

Section 6 creates a separate free-standing offence of bribing a foreign public official. The jurisdictional scope is the same as for s1. However, the mens rea for the bribe is different and easier to establish. It is simply to influence the person bribed in his capacity as a public official with the intention of obtaining a business advantage.

Section 7 is the key and significant departure from previous law. This offence is entitled “Failure of commercial organisations to prevent bribery”. A relevant commercial organisation (“C”) commits an offence if a person associated with it bribes another, intending to obtain or retain business for C or obtain or retain an advantage in the course of business for C. C must be a company or partnership which is either (a) established or formed in the UK and carries on business there or elsewhere or (b) incorporated or formed elsewhere but which carries on business or part of its business in the UK.

A person is “associated” with C if he performs services for or on behalf of C. Whether there is a relevant performance of services will be decided by considering all the relevant circumstances and is a question of fact. However, examples of who might be so associated are said to be employees, agents and subsidiaries. But there will be others as well and the Ministry of Justice Guidance on the Act gives a number of further examples.

It is clear from the above that the jurisdictional reach of this offence is considerably wider than under the previous law. In addition, the offence (subject to the defence provided) is effectively one of strict liability, since if the relevant acts by an associated person are shown, no particular mens rea on the part of C is required.

However, it is a defence for C to prove that it had in place “adequate procedures designed to prevent persons associated with C from undertaking such conduct” (i.e. bribery).

For present purposes, this covers, broadly, frauds where any act or omission forming part of the offence occurs in England and Wales.

This covers cases where the intended fraud was to take place in England and Wales, or if intended to take place abroad, it would be an offence in that place and any party to the conspiracy (or his agent) (a) did something in England and Wales in relation to the agreement, before it was made, or (b) joined the conspiracy in England and Wales, or (c) acted or omitted to act in England and Wales in pursuance of the conspiracy.

This offence covers conspiracy to commit any offence, not merely fraud, so it would include bribery. Its jurisdictional reach is similar to that under the common-law offence of conspiracy to defraud.

By ss44 and 45 thereof, a person commits an offence if he does an act capable of encouraging or assisting the commission of an offence and either (a) intending that encouragement or assistance or (b) believing the offence will be committed and that his act will encourage or assist it. The underlying offence can be one which has been committed or is intended to be committed overseas, provided that (a) it would be triable in England and Wales or (b) it would be so triable if committed by a person who satisfies a nationality or residence condition.

In addition, the act of encouragement or assistance must be wholly or partly in England and Wales.

The offence of false accounting here has the same jurisdictional reach as the Fraud Act 2006.

There are various false accounting offences under this Act where committed by an officer of the company.

As from 6 April 2008, an officer of a company commits an offence if he fails to comply with the statutory duty under s386 to keep accounting records.

This Act creates offences of making misleading, false or deceptive statements to the market.

On the assumption that there is the prospect of criminal offences justiciable under English law, then, being a party to steps taken to conceal or destroy evidence in relation to those offences (wherever the evidence may be located) can constitute the common-law offence of perverting the course of justice. Further, under s2(16) of the 1987 Act it is an offence for any person who knows or suspects that an investigation by the police or the SFO into serious or complex fraud is being or is likely to be carried out to falsify, conceal, destroy or dispose of documents which he knows or suspects would be relevant to such an investigation.

There is a broader question as to the general ability of the SFO to be able to prosecute ENRC either with, or without, the information supplied to it by Mr Gerrard and/or ENRC. Appendix 3 to Dechert’s Closing deals not only with the relevant offences but also their implications. It is not necessary for me to assess the detailed points made therein. This is because in my judgment (a) they do not affect the limited respects in which I have found Mr Gerrard to have given wrong advice on criminality (see paragraphs 939-963 below) and (b) in my judgment the main issue that arose in the investigation which calls for comment is the notion that matters would be and were, of less interest to the SFO where they essentially concerned a fraud committed not by the company (for example SSGPO) on some other party, but one which was a fraud on the company itself. This latter point needs further consideration.

First, such frauds were not on their face concerned with bribery and corruption which was the main focus of the SFO. Indeed, at least in some meetings, the SFO seems to have taken that on board. It is one reason why, as we shall see, the SFO was in truth much more interested in Africa than Kazakhstan.

However, Dechert has made the point that even where the fraud is on the company, there can still be criminal liability, at least in English law. Here, the case of Moore v Bresler [1944] 2 All ER 515 is relied upon. This was a case where the company was convicted of making false returns in respect of purchase tax with intent to deceive, contrary to the Finance (No. 2) Act 1940. Provided the relevant company officers making the returns were acting within the scope of their employment, the company would be liable. A point was taken that the relevant officers were not acting within the scope of their authority because they themselves were using the relevant sales to defraud the company i.e. their own employer. It was held by the Court of Appeal that this feature did not mean that they were not acting within the scope of their employment nor did it somehow absolve the company of guilt even though, in one sense, it was the victim of the fraudulent sales.

All of that is perfectly understandable. As is the reference to it in paragraph 19 of the 2009 SFO/CPS Guidance on Corporate Prosecutions where it was cited in the precise context of the corporate liability point which was its subject.

But the matters raised in respect of Kazakhstan were not on their face concerned with criminal offences committed there as against the external authorities as it were. So the way in which the fraud on the company was said to be irrelevant in Moore had no application there. Had there been such offences which, as a matter of English law, gave jurisdiction to the SFO here, then Moore might have been relevant but in reality it is not. Thus the difference between a fraud committed on rather than by the company remains important, in my view.

The SFO is itself a prosecuting authority. By s1(3) of the 1987 Act, the Director may investigate “any suspected offence which appears to him on reasonable grounds to involve serious or complex fraud”. By s1(5), the Director may then “institute and have the conduct of any criminal proceedings which appear to him to relate to such fraud” or may “take over the conduct of any such proceedings at any stage”.

Once a criminal investigation has begun, s2(2) and (3) empower the Director to require the person under investigation (or any other person whom he has reason to believe has relevant information) to answer questions or otherwise furnish information, or produce any specified documents or class of document, which appear to relate to any matter relevant to the investigation.

Further, and as from 1 July 2011, by s2A, the Director may also exercise the powers granted by s2 prior to the commencement of any criminal investigation for the purpose of enabling him to decide whether to start such an investigation. This is subject, among other things, to an exception where privileged documents are concerned (see s2(9) discussed below) and to the fact that if there is a reasonable excuse for non-compliance with the requirement from the SFO made under s2, that non-compliance will not constitute an offence – see s2(13).

Importantly, s2 also provides:

“(4)

Where, on information on oath laid by a member of the Serious Fraud Office, a justice of the peace is satisfied, in relation

to any documents, that there are reasonable grounds for believing—

(a)

that—

(i)

a person has failed to comply with an obligation under this section to produce them;

(ii)

it is not practicable to serve a notice under subsection (3) above in relation to them; or

(iii)

the service of such a notice in relation to them might seriously prejudice the investigation; and

(b)

that they are on premises specified in the information,

he may issue such a warrant as is mentioned in subsection (5) below.

(5)

The warrant referred to above is a warrant authorising any constable—

(a)

to enter (using such force as is reasonably necessary for the purpose) and search the premises, and

(b)

to take possession of any documents appearing to be documents of the description specified in the information or to take in relation to any documents so appearing any other steps which may appear to be necessary for preserving them and preventing interference with them.”

It is the exercise of such a search warrant which has been colloquially described (by Mr Gerrard and others) as a “raid”. It will be appreciated that it is not always necessary for there to have been issued a s2 notice which has not then been complied with, because of sub-paragraph 4 (a) (ii) and (iii). Moreover, a criminal investigation does not need to have commenced either, because by reason of s2A(3)(c), there can be an equivalent search warrant in respect of a s2A exercise.

Both ss2 and 2A have numerous other ancillary provisions but it is not necessary to examine them at this stage. The interviews and document production which occurred at the instance of the SFO in this case were pursuant to its s2 and 2A powers.

All of the above is in the context (and only in the context) of an actual or putative criminal investigation.

However, it is also necessary to refer here to the making of a Civil Recovery Order (“CRO”). This procedure was introduced by Part 5 of the Proceeds of Crime Act 2002 (“POCA”). The High Court may make a CRO against property if it is satisfied that such property was the proceeds of crime, strictly “unlawful conduct”. The conduct may have been carried out anywhere in the world provided that it would have been criminal if carried out here. The “recoverable property” may itself be anywhere in the world provided that there is a connection between it and the relevant civil recovery proceedings brought here.

Proceedings claiming a CRO may be brought by a number of different authorities, including the SFO, which was entitled to bring such proceedings from 1 April 2008. The proceedings are civil in character and are “in rem” in the sense that they are brought against the property itself.

Since 1 April 2008, and by reason of an amendment to POCA inserted by the Serious Crime Act 2007, additional powers were granted to those authorities contemplating CRO proceedings. By s341(2) any “civil recovery investigation” is an investigation into whether property is recoverable property, who holds the property, or its extent or whereabouts but there is no such investigation once proceedings for a CRO have been commenced. One such power is that provided for by s357. Here, a judge may, on an application made to him by the relevant authority, make a disclosure order if satisfied that each of the requirements for the making of the order is fulfilled.

In 2009, a Guidance Note was produced by the Secretary of State pursuant to s2A of POCA. It stated in the Introduction that:

“In any case where proceeds of crime have been identified but it is not feasible to secure a conviction, or a conviction has been secured but no confiscation order made, relevant authorities should consider using the non conviction-based powers available under the Act.”

In the section dealing with civil recovery, the Guidance points out that civil recovery proceedings are often contested and may in certain circumstances involve protracted litigation. In other cases, however, an order can be obtained quickly and simply where the other party consents to it; but it is important to emphasise that there still needs to be property emanating from crime otherwise there could be no jurisdiction for making the order.

As will be seen below, the SFO’s 2009 Guidance envisages the use of an agreed CRO to achieve a civil settlement between the relevant party and the SFO following engagement in the SR process (as described at paragraph 141 below) where this is considered an appropriate alternative to a criminal investigation and prosecution.

On 21 July 2009 the SFO published a document entitled “Approach of the Serious Fraud Office to dealing with overseas corruption” (“the 2009 Guidance”). It was the potential and then actual operation of the self-reporting process explained in that document that lies at the heart of ENRC’s engagement with the SFO in this case. For that reason, it is necessary to refer extensively to this document. I add at the outset that it was significantly changed by revised Guidance on Corporate Reporting on 9 October 2012 (“the 2012 Guidance”).

There will be much reference to the 2009 Guidance below. However, and although there was criticism of the 2009 Guidance and there are issues as to how it was applied here, some points about what the Guidance intended are relatively clear.

First, it refers to a “self-referral” or “self-report” (“SR”). It envisages that the relevant company decides voluntarily to report to the SFO a “case of” or “a problem concerning” overseas corruption. This is likely to happen only when there has been advice and a degree of investigation by its professional advisers which reveals that there is a “real issue and remedial action is necessary.” In other words, the company is likely to be reasonably sure that there has been criminal wrongdoing which could be the subject of prosecution here.

Next, following the SR and the acknowledgement of a problem, the SFO would need to be assured about a number of things. These are set out at paragraph 4 and include the SFO wanting to establish:

That further investigation is covered in paragraphs 11-13. They provide that if both sides were satisfied as to the answers to the questions raised in paragraph 4, they would then discuss the scope of any further investigation needed, if possible, to be done by the company’s professional advisers. The SFO would want to be involved in regular update discussions concerning the progress of such further investigation. It is implicit in this that at some point the further investigation would come to a conclusion.

The whole point of the SR process from the company’s point of view would be to secure a civil rather than a criminal outcome in respect of the wrongdoing reported, albeit that there could be no absolute guarantees.

The only pre-SR engagement with the SFO referred to is at paragraph 2 which says that there could be earlier engagement between the company’s advisers and the SFO to obtain an initial indication, where appropriate, and after a detailed review of the facts, of what the SFO’s approach might be. It seems to me that this is not indicative of some pre-report investigation but rather securing from the SFO (if it was prepared to give it) an indication as to whether it might or might not contemplate a civil settlement in the case concerned.

On the face of it, what the 2009 Guidance was not about was reporting to the SFO mere suspicions or initial thoughts or reports about matters which might possibly involve criminal offences after fuller investigation, or giving to the SFO a “running commentary” on how a particular investigation was doing or supplying the SFO with pieces of information along the way, in advance of the report itself.

This is why a self-report is such an important step for a company because it amounts to volunteering information which shows or is likely to show the commission of a criminal offence, where there is no complete guarantee that a criminal investigation will be avoided or that the SFO may not require a substantial further investigation before resolving the matter.

I shall refer to the process of engaging with the SFO pursuant to, or purportedly pursuant to, the 2009 Guidelines in this case as “the SR Process”.

The causes of action pleaded against Dechert are the familiar ones where the professional liability of solicitors is concerned, that is to say breach of contract and/or negligence and/or breach of fiduciary duty. The law of such claims does not need to be rehearsed at this stage. The question which does arise, because it is not entirely common ground, is the nature and scope of Dechert’s particular duties qua solicitors here. Hence the title of this section. I am not dealing here with any legal questions arising out of Dechert’s limitation defence or limitation of liability defence. They will be considered below, to the extent necessary, once my primary findings on the question of breach of duty have been set out.

It is common ground that it was an implied term of the Dechert Retainer that it would act with the care and skill to be expected of a firm of solicitors with relevant expertise (“the Core Duty”). In this particular case, I consider that the relevant expertise is that of solicitors who (among other things) specialise in white-collar crime work and internal corporate investigations. There is, on the statements of case, a narrow dispute as to the particular content of that expertise (see footnote 16 to the Amended List of Issues and Common Ground in the 2017 claim). In the event, nothing turns on it.

It is also accepted that Dechert would act in accordance with, and not contrary to, its client’s instructions (“the Instructions Duty”) and that it would not disclose to any third parties confidential information belonging to ENRC without the latter’s consent (“the Non-Disclosure Duty”).

Dechert also accept that both Dechert as a firm, and Mr Gerrard personally, owed fiduciary duties to ENRC. These included a duty of confidence and a duty to act in what they in good faith considered to be the best interests of ENRC, and not to allow their own interests to conflict with that duty.

On the face of it, and not least because Mr Gerrard was hired specifically because of his expertise in and experience of white collar crime cases and investigations, and of dealing with the SFO, he owed a personal duty of care in tort to ENRC as well. While Dechert have denied this, the only possible argument is that somehow this duty did not arise because of the limitation of liability clause. For the reasons given below when I deal with that clause, I reject that suggestion and I find that Mr Gerrard did owe a personal duty of care as well.

ENRC alleges that Dechert had an implied duty to disclose any material information in their possession which related to their retainer and in particular to ENRC’s engagement with the SFO and which was within their knowledge. ENRC relies on paragraph 9-149 of Clerk & Lindsell on Torts 23rd Edition. Dechert initially denied this duty but then accepted it in principle in its Opening Submissions. In evidence, Mr Gerrard admitted that ENRC was entitled to be made aware of all information which was material to his retainer and that he should tell ENRC of any wrongdoing by him. He also agreed that he should disclose his actual or suspected involvement in any leak even if inadvertent, and whether current or former employees had been interviewed or were going to be interviewed by the SFO especially if they had privileged information. He also had a duty to tell ENRC if the SFO was considering confiscation proceedings against senior ENRC officers or employees, due to alleged wrongdoing in the course of their employment. In my judgment, Mr Gerrard was right to admit all of this. It is self-evident in my view (altogether, the “Disclosure Duty”).

Dechert made a number of points in its Opening Submissions which might be thought to lessen the standard of care actually owed. Given the nature and seriousness of the allegations here, any such nuanced disagreement is hardly likely to make any difference. But in any event, I agree with ENRC that the standard is the objective one of the reasonable solicitor and the application of that standard to particular facts or situations can vary depending on whether one is instructing a generalist solicitor to deal with highly specialised situations or whether (as here) a specialist solicitor with avowed experience in the field is chosen. Indeed, it is difficult to see how Mr Gerrard could purport to be any closer to the SFO and its operations, given how he described himself on his firm’s website as a candidate for the Directorship, albeit that this claim was untrue. More pertinently, he had personal experience of the SR regime through the cases of MW Kellogg and Mabey & Johnson. And most telling of all, in his evidence, he never suggested he was unaware of some features of the SFO’s processes or the SR scheme. On the contrary, he spoke with complete confidence that whatever course he took with the SFO was clearly the right one. He hardly suggested he was feeling his way. Accordingly, the relevant standard is that pertaining to the reasonable solicitor in Mr Gerrard’s position, i.e. as an expert specialist in the field.

At this point, it is appropriate to say something about the application of the concept of authority in relation to Mr Gerrard’s alleged breaches of duty. In a number of instances it is said on behalf of Mr Gerrard that even if he did not have ENRC’s express authority to do or say something, he had its implied authority. In principle, he could act pursuant to an implied authority which is, after all, just another form of actual authority. Whether he had such implied authority is a matter to be decided on the evidence and objectively, as with any other implication.

As noted above, both because it is its case on the facts and because of the possible effect of the limitation of liability clause, ENRC alleges that in fact, Mr Gerrard’s breaches of duty were at least reckless. Hereafter, where I refer to a question of knowing breach, that should be taken to include a reckless breach.

Here, it is necessary to say rather more about the relevant causes of action than in the case of the claims against Dechert. As to the question of limitation again, that matter will be dealt with later in this judgment.

There is no real dispute between ENRC and the SFO on the elements of this tort, save whether it extends to breaches of fiduciary duty, which ENRC says it does, while the SFO says it does not. I deal with that dispute below although, as I shall explain, it is academic on the facts of this case. I therefore turn to the elements of the inducement tort.

I can take the various elements of the tort from the judgment of Lord Hodge in the Outer House in Global Resources v Mackay [2008] CSOH 148. It is not suggested that Scottish and English law differ in this regard, and it was for example cited with approval by the Court of Appeal in the recent case of Kawasaki v Kembell [2021] EWCA Civ 33. At paragraphs 11-14 of his judgment, Lord Hodge referred to the following necessary elements:

Lord Hodge also stated that lawful justification may be a defence. That does not arise here.

Equally, loss must have been caused to C as a result of the inducement. However, I am not concerned with that question in this judgment.

Something more needs to be said here, first, about the Inducement Requirement. There is no doubt that the paradigm examples of the tort concern active persuasion or encouragement by A to B to do that which puts him in breach of contract with C, as A knows. But, as reflected in modern descriptions of the tort as one of accessory liability, knowingly assisting B to break the contract may be sufficient. That is especially so if, without A’s assistance, the breach of contract itself cannot be committed.

Thus, in Lictor v Mir Steel [2011] EWHC 3310, the assets and business of a company in administration, Alphasteel, were sold in a hive-down to a company formed by the administrators called Mir Steel, the first defendant. Mir Steel was then to sell them on to a company called Libala, the second defendant. The claimant, Lictor had supplied substantial equipment to Alphasteel for use in the production of steel but it remained the property of Lictor and in any event Alphasteel covenanted not to sell it. It was common ground that Alphasteel, by selling it down to Mir Steel was in breach of that covenant. Moreover, since the administrators controlled Mir Steel, they knew of the breach of covenant. Lictor alleged that Mir Steel had induced the breach of contract on the part of Alphasteel.

However, Mir Steel sought to dismiss the claim made against it on the basis that it had not induced or persuaded Alphasteel to sell the equipment to it. David Richards J (as he then was) rejected that argument and said this at paragraph 48:

“…in circumstances where the defendant’s involvement or co-operation is necessary to the breach intended by the contract breaker, then the defendant who participates in this way with the relevant knowledge is liable. He submitted that the necessary element of causative participation was satisfied if the defendant does an act which enables the contract breaker to breach his contract and without which no breach would occur. In such circumstances the defendant is sufficiently instrumental in causing the breach to be liable. Active persuasion by the defendant is not required.”

Then, applying this to the facts of the case David Richards J said as follows:

“[51] In the course of his judgment…Roxburgh J, commenting on the use by Lord Macnaghten of the word ‘interference’ in Quinn v Leathem…considered that mere passivity would not be sufficient to give rise to liability. An example of mere passivity is found in the decision of the Court of Appeal in Batts Combe Quarry Ltd v Ford…In that case a father who had sold his quarry business with a covenant not to be engaged or concerned in the business of a quarry within 75 miles for a period of ten years, provided funds to his sons to purchase and operate a quarry in the immediate neighbourhood of the quarry which he had sold. The funds were provided gratuitously to his sons. He was held liable for breach of contract but the claim for inducing his breach of contract against the sons was dismissed at first instance, a decision which was affirmed by the Court of Appeal. Dealing with this Lord Greene MR said…: ‘First of all it was said that the sons, by accepting their father’s bounty amounting to something over £7,000, did procure him to break his covenant—that is assuming, of course, that the finding of the money by the father was a breach of covenant. Assuming that, it was said that that was a procuring of a breach of contract. In my opinion, that argument is completely misconceived. The tort of procuring a breach of contract requires something much more than that. Mere acceptance of a proffered bounty given in breach of covenant cannot, it seems to me, be said to be in any sense a procuring of a breach of contract.’

[52] The terms of the hive-down agreement are readily distinguishable from the mere acceptance of proffered bounty. Not only did Mir Steel agree to purchase the equipment as part of the assets of the business for a very substantial price which it paid with funds advanced to it by Libala, it also undertook significant and continuing obligations. These included, for example, the obligation contained in cl 9.5 that it would be responsible for settling any claim made against it by the claimant in respect of the hot strip mill. The agreement by Mir Steel to purchase the equipment and other assets on the terms of the hive-down agreement is in my judgment, consistently with the authorities on which Mr Boyle relied, at least arguably sufficient to constitute acts required for liability in tort for inducing a breach of contract.”

Accordingly, assisting the breach can be enough at least where the breach could not be committed without it. This was recognised by Popplewell LJ in Kawasaki. At paragraph 23 having referred to the fact that liability for inducement is an accessory liability, he said:

“ A commits a tort and attracts liability to C because he does something which joins in with the conduct of B in a way which makes him an accessory to the breaking of the contract by B.”

Here, I turn first to the well-known judgment of Lord Hoffmann in OBG. Among other things, he said this:

“39 To be liable for inducing breach of contract, you must know that you are inducing a breach of contract. It is not enough that you know that you are procuring an act which, as a matter of law or construction of the contract, is a breach. You must actually realize that it will have this effect. Nor does it matter that you ought reasonably to have done so. This proposition is most strikingly illustrated by the decision of this House in British Industrial Plastics Ltd v Ferguson in which the plaintiffs former employee offered the defendant information about one of the plaintiffs secret processes which he, as an employee, had invented. The defendant knew that the employee had a contractual obligation not to reveal trade secrets but held the eccentric opinion that if the process was patentable, it would be the exclusive property of the employee. He took the information in the honest belief that the employee would not be in breach of contract. In the Court of Appeal …MacKinnon LJ observed tartly that in accepting this evidence the judge had vindicated his honesty . . . at the expense of his intelligence but he and the House of Lords agreed that he could not be held liable for inducing a breach of contract…

42 The next question is what counts as an intention to procure a breach of contract. It is necessary for this purpose to distinguish between ends, means and consequences. If someone knowingly causes a breach of contract, it does not normally matter that it is the means by which he intends to achieve some further end or even that he would rather have been able to achieve that end without causing a breach. Mr Gye would very likely have preferred to be able to obtain Miss Wagner’s services without her having to break her contract. But that did not matter. Again, people seldom knowingly cause loss by unlawful means out of simple disinterested malice. It is usually to achieve the further end of securing an economic advantage to themselves. As I said earlier, the Dunlop employees who took off the tyres in GWK Ltd v Dunlop Rubber Co Ltd…intended to advance the interests of the Dunlop company.

43 On the other hand, if the breach of contract is neither an end in itself nor a means to an end, but merely a foreseeable consequence, then in my opinion it cannot for this purpose be said to have been intended. That, I think, is what judges and writers mean when they say that the claimant must have been “targeted” or “aimed at” In my opinion the majority of the Court of Appeal was wrong to have allowed the action in Millar v Bassey [1994] EMLR 44 to proceed. Miss Bassey had broken her contract to perform for the recording company and it was a foreseeable consequence that the recording company would have to break its contracts with the accompanying musicians, but those breaches of contract were neither an end desired by Miss Bassey nor a means of achieving that end.”

For present purposes, the key passages are paragraphs 42 and 43 but I cite paragraph 39 to emphasise the point that knowledge by the defendant that what he is procuring is a breach of contract, dealt with in that paragraph, is a separate requirement to intention. The distinction is important because it would be possible to have the former without the latter. What has to be shown for intention is either that the breach by B is itself the end in question i.e. the aim of A, or that breach is a means to some other end. As Lord Hoffmann points out, cases where the breach is an end in itself are rare. So one is looking at the means to the end. It is therefore vital to discern what was A’s end or aim. In many cases, this is obvious. So, for example, in Lumley v Gye (1853) 118 ER 749, Mr Gye’s aim was to obtain the services of Ms Wagner which could not be done without putting her in breach of her contract with the theatre who presently had the use of her services. The aim of securing her as a performer was the end in question but the means to it was her breach of contract.

Lord Hoffmann distinguished such a means from a case where the breach was merely a foreseeable consequence. He referred to the case of Millar v Bassey [1994] EMLR 44 which had been cited in argument. Here, the well-known singer Shirley Bassey decided not to make a particular record with her existing record company, which put her in breach of her recording contract with that company. As she knew, a producer and musicians had been hired by the record company for the purpose of making the album. She knew that the consequence of her breach of contract would be that the record company would not now be able to use the services of the producer and musicians which it had already contracted for. While knowledge and inducement were alleged, there was no separate allegation of intention to cause the breach on the part of the record company. At first instance, the Judge struck out the case on that basis. In the Court of Appeal, the majority considered that in an evolving and complex area of the law the case should be allowed to proceed to trial. Peter Gibson LJ, dissenting, said that the Intention Requirement was clearly established on the authorities and the failure to plead it was fatal to the claim. Because of the majority decision the case was allowed to proceed to trial although it is not clear if it ever did.

As can be seen from paragraph 43 of his judgment, Lord Hoffmann said that the majority of the Court of Appeal was wrong. This was not simply on the basis that an essential requirement had not been pleaded. As a matter of substance, Lord Hoffmann was saying that Ms Bassey did not have the relevant intention anyway, because the breach of contract on the part of the record company with the producers and musicians was neither an end nor a means to an end so far as she was concerned. I think what is meant here is that the breach of the contract with the musicians was not why she broke her contract, although the further breach committed by the record company was a necessary consequence. The means to the end here was no more than her leaving her present record company in breach of contract. Using somewhat different language, the breach of contract with the producer and musicians was simply a by-product of her course of action.

By way of contrast, in order for Mr Gye to obtain the services of Ms Wagner, she had to break her contract with the theatre. That was not his end or aim but it was the means, indeed the only means, to achieve it.

It is perhaps unfortunate that the Intention Requirement is expressed by the very word “intention” although one understands its ancestry from the case-law on economic torts and the importance of ensuring that they have clear limits. But really, it is almost a question of analysis as to the role played by the breach of contract in the defendant’s putative aim or scheme. This is reflected in the fact that it was thought necessary by Lord Hoffmann to say that it is not open to a defendant to say that he did not intend the breach (i.e. the Intention Requirement is not made out) if the breach was an essential part of what he wanted to achieve, as in Lumley. That seems to me to be close to saying that the defendant is deemed to intend the breach because it was bound to occur.

The reason why the Intention Requirement is often easy to satisfy, once there is the relevant inducement and knowledge, is because the defendant usually takes the initiative or is at least jointly active with B in terms of causing the relevant breach of contract. Where the aim for A (and usually B) is some economic benefit derived from the breach of contract, it is not difficult to find the Intention Requirement proved.

In Lictor, it was also argued that there was no relevant intention on the part of Mir Steel. As to that David Richards J said as follows:

“[46] Mr Downes submitted on the basis of these paragraphs that the breach of the April 2000 agreement involved in the sale of the equipment was no more than a foreseeable consequence of the hive-down agreement. It was not therefore a result which could be said for the purposes of this tort to have been intended by Mir Steel. I am unable to accept this submission. It seems to me to be the case, or at any rate to be reasonably arguable, that the breach of the April 2000 agreement was the means by which the aim of transferring the equipment as part of the hive-down agreement was achieved. If the transfer of the equipment constituted a breach of the April 2000 agreement, then a breach of that agreement was necessarily involved in the transfer. In other words, without the breach the transfer could not be achieved. The breach of the April 2000 agreement was not the end in the sense used by Lord Hoffmann. Just as Mr Gye would very likely have preferred to have been able to obtain Miss Wagner’s services without having to break her existing contract, so no doubt Mir Steel would have preferred to have taken a transfer of the equipment without any breach of the April 2000 agreement. But, as Lord Hoffmann observed, that does not matter. The breach of the April 2000 agreement was integral to the transfer and not, as in the case of the breach by the recording company of its contract with backing musicians resulting from Shirley Bassey’s breach of her recording contract, a mere consequence.”

So far as breach of fiduciary duty is concerned, there is no case which clearly establishes that the tort can extend this far. In First Subsea v Baltec [2014] EWHC 860, Norris J said that it did not, at paras. 351-353. The editors of Clerk and Lindsell on Torts 23^rd Edition at paragraph 23-23 agree. Possibly, where there are identical contractual and fiduciary duties, the tort could encompass the latter but if so, it is difficult to know what inclusion of the latter adds. The same is true in this case. In the present context, a situation where the SFO knowingly induced a breach of fiduciary duty but not a breach of contract does not realistically arise. Nor is there some limitation point which the SFO could invoke as against ENRC which turns on whether breach of fiduciary duty is encompassed or not. That is hardly surprising since, for the SFO, the cause of action is the commission of a tort, not the commission of a breach of contract as opposed to a breach of fiduciary duty. I therefore proceed on the basis that the tort is here limited to breaches of contract.

In the context of this case, the relevant contract is, of course, the Dechert Retainer. The breach thereof is by Mr Gerrard. As for the SFO’s knowledge of the retainer, it is not suggested that at any material time, the relevant officers did not know that Mr Gerrard was acting for ENRC and hence there was a retainer between ENRC and his firm. Equally, it is not suggested (nor could it be) that the relevant SFO individuals did not know that under the retainer, Mr Gerrard owed a contractual duty not to act without his client’s authority and only to act in its best interests.

So far as the Knowledge Requirement is concerned, if Dechert, through Mr Gerrard, was in breach of contract because he had no authority to meet and/or to give confidential information to the relevant SFO officer on the relevant occasion in the way that he did, the question is whether the officer was at least recklessly indifferent as to that lack of authority or not. Equally, if Mr Gerrard was acting otherwise than in the best interests of ENRC, was the officer at least recklessly indifferent to that fact?

The Inducement and Intention Requirements are important elements here and cannot be simply assumed. That is because the DCs were almost always initiated by Mr Gerrard, not the SFO and in some cases the relevant meetings or calls were themselves authorised by ENRC, if not their actual content. Furthermore, it is not (now) suggested that a motive for inducement by the SFO was to assist Mr Gerrard in furthering his goal of raising the stakes and expanding the investigation so as to earn more fees (see paragraph 211 below).

In reality, when the SFO witnesses were cross-examined about the DCs and when the latter were addressed individually by ENRC in its written and oral Closings, the key point was that the relevant SFO officer must have known and did know (or was reckless as to the fact) that Mr Gerrard was plainly acting without authority and against the interests of his client. These are the matters on which I shall focus, too. In relation to any given DC, I shall make reference to whether Mr Gerrard and/or the relevant SFO officer were in knowing or reckless breach of duty. The duties on the part of the SFO officers relate to the claim in misfeasance (see below) but any breach of duty on their part found by me is equivalent to a finding that they knew that (or were reckless as to whether) Mr Gerrard was acting without authority and/or not in the best interests of his client and was thereby in breach of contract, which is then relevant for the inducement claim.

As to whether, in any case where there was such knowledge or recklessness, the SFO officer can then be said to have knowingly and intentionally induced Mr Gerrard’s breach of duty, I will address that point generally, after considering the individual DCs.

There are two forms of this tort. The first arises where the defendant specifically intends to injure the claimant i.e. “targeted malice”. ENRC does not allege this of the SFO, here. Instead, it relies on the second form. This is where the relevant officer has acted unlawfully and knows that he has done so and that it will probably injure the claimant – or that he is recklessly indifferent to those facts. In the discussion which follows, where I refer to knowledge, this includes recklessness.

In addition, the defendant must be a public officer engaged in carrying out public functions. There can be no serious suggestion that this is not the case here. Messrs Alderman, Gould, Thompson, and the other SFO “actors” alleged to have committed the alleged misfeasance were clearly public officers and their dealings with ENRC were plainly undertaken as part of their public function.

The claimant must also have a sufficient interest to bring the claim, which ENRC plainly does.

Again, the misfeasance must of course cause loss, but, again, apart from one aspect of causation, loss itself is outside the scope of this judgment.

Something further needs to be said about the requirement that there be knowledge of probable injury to the claimant. I have taken that requirement from the well-known judgment of Lord Steyn at p191E in the leading case of Three Rivers DC v Bank of England [2003] 2 AC 1. At p192C, he said that the basis of the action lay in the defendant taking a decision in the knowledge that it is an excess of the powers granted to him and that it is likely to cause damage to an individual. Mere foreseeability of loss is therefore insufficient. I shall refer to this requirement of any misfeasance claim as the “knowledge of loss” requirement.

In Three Rivers itself, the losses claimed were the deposits placed in BCCI by very many depositors as a result of its fraudulent operations, and which were subsequently lost. The depositors’ case was that had the Bank of England not been in breach of duty in granting a banking licence to BCCI in the first place, or at least not withdrawing it subsequently, those deposits would never have been made and/or would have been able to be reclaimed. The knowledge of loss requirement here was therefore that the relevant officials knew that by continuing to allow BCCI to operate this would probably cause loss to the depositors in the form of their lost deposits.

Turning to the misfeasance case against the SFO here, as with the losses actually claimed (and summarised at paragraphs 13 and 14 above) there is in the Particulars of Claim a generic plea of knowledge of loss in respect of all the different misfeasances alleged, as follows:

“51.

The SFO (and in particular Messrs Alderman, Gould, Thompson, Green and Coussey) knew, as a result of information in the public domain as well as their involvement with ENRC, that:

51.1

ENRC was a large publicly traded mining company with the characteristics described in paragraph 1 above;

51.2

ENRC was going to, and did in fact, incur substantial legal and other professional fees in connection with the Retainer, the Initial Contact, the Review Process and the SFO’s subsequent investigation into its conduct. The said professional fees included (without limitation) those incurred by ENRC in respect of computer, data processing and hosting specialists, translators, accountants, forensic consultants, and solicitors, counsel and other legal advisers.

52.

In the premises, the SFO took each of the unlawful acts set out above with knowledge of, or with recklessness as to, the serious risk of loss to ENRC.”

In response to that, paragraph 172 (1) of the Defence takes the point that the knowledge of particular individuals cannot be aggregated for these purposes. This was common ground at trial, so that the elements of the tort of misfeasance must be made out with respect to each individual accused of it, including the knowledge requirement.

Paragraph 172 (2) of the Defence stated that the knowledge of loss plea in paragraph 52 of the Particulars of Claim was unsupported by the matters pleaded in paragraph 51.

As already noted at paragraph 92 above, ENRC alleges that it was plain to the relevant SFO officers that their misconduct would cause “huge” losses to ENRC including with regard to the cost of defending a lengthy criminal investigation and the fees incurred while Dechert were retained. Thus, at least in broad terms, the loss of which it is said the relevant SFO officers had knowledge is aligned to the losses actually alleged.

I mention this to emphasise that the knowledge of loss requirement is not satisfied by showing knowledge of the probability of some loss or damage to ENRC regardless of what it is. To be fair to ENRC, it has not suggested otherwise. But one needs to take particular care when analysing, for example, the DCs where knowledge of breach of duty is said to be made out where the relevant officer knew that the information being given to them by Mr Gerrard was clearly against the interests of his client and unauthorised. The fact (if it be established) that the officer knew that what he was being told was damaging to ENRC says nothing about whether the knowledge of loss requirement is also made out.

A further point arises in relation to knowledge of loss. So far as the 6 non-DC allegations of misfeasance are concerned, as made against Mr Thompson (the Depel Interview), Sir David (WB2), Mr Coussey (June 2013 Material), Mr Gibson (website) and persons unknown (Beige Notebook and leak of the decision to launch the criminal investigation), knowledge of loss must be established in each case against each relevant individual.

However, the approach to establishing knowledge of loss in relation to each of the 30 individual DCs is less straightforward. Nine involve Mr Alderman, ten involve Mr Thompson and eleven involve Mr Gould (two involve Mr Rappo but no cause of action is alleged against him). It seems to me to be artificial to consider whether the knowledge of loss requirement is established in respect of each separate DC, in a vacuum as it were. And indeed, for almost all of the DCs, there was no attempt to put the knowledge of loss case to the relevant individual where they gave evidence for every occasion when there was a DC. The only sensible way to consider knowledge of loss here is to examine this issue after all the DCs have been considered individually. To the extent that any individual was in knowing breach of duty in one or more of the relevant DCs, one can then ask the further question as to whether there was knowledge of loss either individually or cumulatively.

There is more between the parties as to what the potential breaches of duty could be here, than in the case of the tort of inducement.

ENRC alleges that the SFO had duties (which it goes on to say were knowingly or recklessly broken):

The SFO accepts that it had the first two duties and by the end of the trial appeared to accept much of the third. However, here, some further discussion is necessary. First, the duty to protect the LPP and confidentiality of a third party, of course, only arises when confidential information (including LPP information) was disclosed without the consent of the party who owned it. Obviously, if there was such consent, the SFO could not be in breach of the LPP Duty. As with the claim in inducement, what this means in practice is that if, in any given instance, there was no consent, the question has to be asked whether the relevant officer knew this or was recklessly indifferent to that fact.

Second, there is a distinction between privileged information and “merely” confidential information. Section 2(9) of the 1987 Act provides that no person shall be obliged to provide to the SFO, exercising its investigatory powers, any information which he would be entitled to withhold on the grounds of LPP in High Court proceedings, save that a lawyer may be obliged to provide the name and address of his client. Accordingly, absent consent from the owner of the LPP information (i.e. a waiver of the privilege), there is an absolute ban on the use of privileged information by the SFO, unless a statute permits it or a common-law exception applies, for example, illegality. None of those matters arise here in terms of what the SFO did.

Confidential information can be used if statute provides for it. Section 2 of the 1987 Act does provide for it within the general investigatory powers of the SFO, if exercised, save for a specific provision in relation to cases where a bank’s duty confidence to its customers arises. Such information can also be used if the common law permits it. The existence of such permission can lead to a balancing exercise between the interests in preserving confidential information on the one hand, and competing public interests on the other.

I would accept that there are these limitations on the SFO’s LPP Duty. In practice, however, when one turns to the particular allegations made against the SFO here, and its answers to them, these points hardly ever arise.

However, there is a very real dispute between the parties over the existence or otherwise of the Evidence Duty. The SFO’s position is straightforward. It has to be shown that there is some legal duty to preserve documents and information as such. Guidance or best practice to that effect will not do, because they would be insufficient to found the relevant duty for the purposes of the tort of misfeasance. It contends that the only legal duty that could be relevant is that imposed by the first part of the Criminal Procedure and Investigations Act 1996 (“the CPIA”). Section 1 (4) says that this part applies where a person has been charged with an offence. It also defines a “criminal investigation” as one whereby police officers or other persons have a duty to conduct an investigation with a view to it being ascertained whether a person should be charged with an offence, or is guilty of it, having been so charged. It is common ground that the effect of sections 1(3) and 3 of the CPIA is to impose a duty on the prosecution to disclose to the accused any prosecution material not previously disclosed, and which might reasonably be considered capable of undermining the prosecution case or assisting the accused’s case, and which was obtained during the relevant criminal investigation. That is reflected in the CPIA Code of Practice.

The SFO’s investigatory powers under s2 of the 1987 Act only apply once it has commenced a criminal investigation which is itself defined in s1(3). This states that the Director may investigate any suspected offence which appears on reasonable grounds to involve serious or complex fraud. So far as the SFO is concerned, therefore, there is a power but not a duty to commence a criminal investigation. Nonetheless, the SFO’s practice is to consider itself bound by sections 1, 3 and 7 of the CPIA in terms of the retention and disclosure of unused material, once it has commenced a criminal investigation. The key point here, of course, is that the criminal investigation of ENRC did not commence until 19 April 2013. That date is after all of the torts alleged against ENRC took place, save those in relation to the June 2013 Material and the website, but those matters do not concern any alleged breach of the Evidence Duty anyway.

I can see no good reason to interpret the phrase “criminal investigation” in s1(3) of the 1987 Act in any way differently from that as defined in the CPIA. On that footing, the CPIA is the only governing statute and it does not support the existence of the Evidence Duty on the SFO at any time prior to the commencement of any criminal investigation. I do not see that the CPIA Code makes any difference.

Of course, it is true that the SFO may (and did here) conduct some investigatory work in the SR process in respect of which ENRC agreed to engage by its letter dated 9 November 2011. But I do not see that process as a “criminal investigation” for the purposes of the CPIA. Nor do I see any investigatory work carried out in anticipation of a possible criminal investigation, not itself yet started, as sufficient.

There is one wrinkle here. Since the introduction of section 2A into the 1987 Act, the SFO has had the coercive power to obtain information etc prior to the start of any criminal investigation. While, in my judgment, the CPIA duty still does not apply here, there may well be an implied duty to preserve and record the information obtained. That would be a necessary consequence of these powers because, otherwise, there would be no need to record the process of the interview or of obtaining other information pursuant to the exercise of the powers which would be relevant as to whether they were exercised properly or not. However, this point is not in fact relevant here, since although the SFO did exercise s2A powers in relation to, for example, SPJ and Mr Depel, notes were taken and ENRC’s allegations against the SFO in these respects do not involve a breach of the Evidence Duty.

All of that said, I doubt whether the debate over the Evidence Duty makes any real difference here. In closing, Mr Colton QC accepted that a deliberate destruction of notes or a bad faith failure to take any notes, for example, to hide some illicit activity between the SFO and Mr Gerrard, would be a breach of the Independence Duty anyway. It is hard to see that this would not be the case in every or almost every instance where ENRC alleges misfeasance by reason of a breach of the Evidence Duty. That is because ENRC is not alleging some innocent breach of the Evidence Duty, but rather a breach committed in bad faith, with an ulterior motive. And an innocent or negligent breach of the Evidence Duty would not be enough for the tort of misfeasance anyway.

In the end, Mr Colton QC’s real point here seems to be that ENRC stuck its colours firmly to the mast of the Evidence Duty and did not cross-examine the SFO’s witnesses on the basis of the lack of any notes as part of a wider exercise of bad faith. I do not think that there is anything in this. The gravamen of the allegation was sufficiently put, in my view. Whether the evidence showed the commission of misfeasance on any of the occasions on which it was alleged, is, of course, another matter.

One further aspect of this debate is the significance or otherwise of the belief or opinion of an individual SFO officer as to whether they had the Evidence Duty. Even if they thought that they did, this cannot change the position if, as a matter of objective law, they did not. And if there was the Evidence (or any other) Duty, the fact that they thought they had no such duty is equally irrelevant. It may, of course, be relevant to their mental state for the purpose of the tort.

A further point made by the SFO is that the tort of misfeasance only operates where there is no other available cause of action against the officers concerned. So, for example, if, on the same facts, the tort of inducement was made out, there will not be the tort of misfeasance as well. See the judgment of Lord Hobhouse at page 229G of Three Rivers. I accept that but this analysis can only be performed at the end of the day, when the question of loss is determined as well. It is no obstacle to me making relevant findings on liability (subject to causation and loss) on both torts at this stage.

A particular motive is not, of course, a separate element of either tort. Nor is it necessary to plead a particular motive. But its presence (or absence) may have evidential significance.

ENRC had originally pleaded, in respect of Mr Gould and Mr Thompson on the inducement claim, that they had agreed with Mr Gerrard to deliver certain pre-agreed “messages” to ENRC “to further Mr Gerrard’s agenda of seeking to expand the scope of the Retainer” with particular regard to DC14 and DC15. This objective was relied upon in the context of both the inducement and misfeasance claims. It was not, however, put to either Mr Thompson or Mr Gould and there is no basis for it. It can thus be disregarded.

A second motive is pleaded against the SFO in the context of the inducement claim. This is that the SFO acted as it did “because it wanted to achieve the end of a substantial civil settlement from, and/or a criminal conviction against” ENRC. It was also pleaded that one of the reasons why Mr Alderman did not explain at OM1 that he had obtained, and would obtain, from Mr Gerrard, acting without authority, confidential information which was against the interests of ENRC, is because Mr Alderman wanted to use it in order to negotiate a high value civil settlement.

A more generalised motive for both the inducement and misfeasance wrongdoing on the part of the SFO was that in acting as they did, the SFO officers were so keen to get some sort of result as against ENRC that they were prepared to act unlawfully i.e. “the end justifies the means”. This is effectively what was put to Mr Thompson at the end of his cross-examination although he denied it. ENRC also made the point that in reality, without Mr Gerrard’s (illicit) assistance, the SFO would have no real chance of obtaining a high-value settlement or a conviction, as they well knew at the time.

I will consider those matters further, below.

In the end, in my judgment, this is how any liability of individual SFO officers in inducement or misfeasance is attributed to the (office of) Director of the SFO who is in fact the Defendant in this case. That liability will only arise where the conduct constituting the tort is:

“… So closely connected with acts [the employee] was authorised to do that, for the purposes of the liability of his employers to third parties, his [tortious conduct] may fairly and properly be regarded as done by him while acting in the ordinary course of his employment.”

See para. 32 of the judgment of the Supreme Court in Various Claimants v Wm Morrison [2020] AC 989.

The SFO says that any suppression or destruction of relevant documents would be so contrary to the acts which SFO officers were authorised to do that it would fall outside the bounds of vicarious liability in terms of what could be attributed to the employer i.e., to use an older phrase, this was truly a “frolic of their own”. However, it is hard to see how that works in practice, since the SFO does not take a similar point with arguably more serious breaches of duty like receipt and use of clearly privileged information. In fact, as will be seen, this point is academic.

I should add here that in its letter dated 11 July 2021, Hogan Lovells confirmed on behalf of ENRC that “it makes no positive case of wrongdoing against Mr McCarthy in these proceedings”. So where there is a meeting between Mr Gerrard and the SFO, for example, where Mr McCarthy was present, even if a case could be made against him for breach of duty for which the SFO is vicariously liable (see above) no such case is made. That is so even if there was another person from the SFO present who was in a similar position (for example, Mr Alderman) where such an allegation is made. This is certainly a curious position for a claimant to adopt and we are not really told why it adopted it. In closing Mr Pillow QC simply said that just as one should not join individuals as parties to misfeasance cases unless absolutely necessary, so one should not plead allegations against individuals in misfeasance cases unless necessary. However, I do not follow this. The first is about joining individuals to a case. The second is simply about identifying relevant individuals for the purpose of establishing (for example) corporate liability. Here, of course, Mr McCarthy was central to the SFO’s dealings with ENRC until he left. He was not a bit-part player. The approach taken by ENRC leads, on occasion, to a breach of duty being not alleged against Mr McCarthy as the person having the relevant conversation with Mr Gerrard, but rather, Mr Alderman who was not there but who heard about it afterwards.

Nonetheless, as a matter of law, if a breach of duty is made out against one SFO officer, the fact that ENRC does not allege the same against another (i.e. Mr McCarthy) cannot affect the liability of the first, if established.

ENRC seeks the following declarations in the 2019 Claim:

This judgment is concerned with whether it is possible or appropriate to grant such declaratory relief. I will consider this once I have decided the primary questions of liability (in the sense of the elements of the claims other than causation and loss) and the two causation issues to be determined now.

A number of issues in this case can be dealt with chronologically. That is particularly true of the DCs where it is (generally) alleged that both Mr Gerrard and the SFO were in breach of duty. Other discrete claims against Dechert can be inserted into this chronology.

There are other, more “thematic” issues, which involve alleged breaches of duty committed over a period of time, in particular with regard to Mr Gerrard, such as the giving of wrong advice or the unnecessary expansion of the work to be done on the investigation. It makes sense to deal with such issues after considering the more discrete chronological issues, for example the DCs.

However, the chronological analysis of issues has in one sense been disturbed by the outcome of Mr Gerrard’s evidence on the Depel Interview for this reason: ENRC has always alleged, on the basis of what it said was a strong inferential case, that Mr Gerrard (a) knew that Mr Depel was going to be and/or had been interviewed by the SFO, but (b) never informed his client of such a material fact. Indeed, ENRC goes further and suggests that Mr Gerrard actively encouraged Mr Depel to engage with the SFO, but that refinement does not matter for present purposes. For his part, Mr Gerrard accepted that he never informed his client, but that was for the simple reason that he did not know at the time that Mr Depel would be or had been interviewed. Indeed, he said that he only learnt of this fact in the context of the present proceedings. He accepted that had he known, he was bound to tell his client - it would be a “huge” issue if he did not. Mr Depel was in fact interviewed on 16 May 2012.

As a result of one of the late disclosed texts from Mr Depel to Mr Gerrard dated 21 May 2012, which read “only u and 2 know about s2”, Mr Gerrard then accepted that he must have known about the Depel Interview at the time but had effectively forgotten about it. In evidence he said he had absolutely no recollection of the text when put to him, although he accepted it had been received and was genuine. I will deal with the detail of this episode later, but the point is that it was this which led to the admission, referred to in paragraph 15 above, of a reckless breach of duty on the part of Mr Gerrard in not informing ENRC of what he knew.

ENRC contends that the effect of the Depel Interview evidence is not merely that it constitutes a serious and now-admitted breach. It is that, first, Mr Gerrard has been caught out in a lie (the denial of any knowledge of the Depel Interview at the time) told in the course of these proceedings, both prior to, and at, the trial itself. The fact that he could lie about such a matter heavily affects his general credibility as a witness and in particular in relation to his evidence about the August Leak. In short, it increases the likelihood that he was indeed the instigator. Secondly, it is said that it shows that Mr Gerrard had a propensity, when it suited him, to act in gross breach of duty towards his client, a propensity which would also support ENRC’s case on the August Leak and other alleged wrongdoing. This is why, perhaps unsurprisingly, ENRC dealt at the outset of its closing submissions with the Depel Interview evidence. Perhaps equally unsurprisingly, it is why it came at the very end of the Dechert submissions.

On the face of it, ENRC’s points here are at least plausible although Dechert rejects them. However, in order for me to assess them, I must deal in detail with the Depel Interview evidence at the outset (even though it relates to matters occurring in May/June 2012) before then considering its impact (if any) on the issue of the August Leak which comes at the very start of the chronological breaches levelled against Mr Gerrard.

Of course, where there are numerous factual issues, it is always possible that a court may take into account the damage to a witness’s credibility caused by a lie or some other adverse evidential point relating to a later matter, when considering that witness’s account of some earlier matter. A cumulative picture as to the credibility of witnesses may, after all, emerge. There are many respects in which that is a feature of this case. However, the invocation by ENRC of the later evidence in relation to the earlier issue is here particularly dramatic and stark. In my judgment the only sensible way to deal with it is to set out my relevant findings on the former, out of sequence, before considering in detail the latter. I therefore intend to deal first with the question of Mr Gerrard’s knowledge of the Depel Interview, and what can or cannot be drawn from it, and then return to the chronology. Other aspects of the Depel Interview (in particular the SFO’s conduct relating to it) can be left until later.

Mr Depel was, on any view, something of a loose cannon within ENRC by early 2012, if not before. He finally left in June 2012 but there was concern within ENRC before his departure that he might turn “Queen’s evidence”, as it were. As already noted, he was in fact interviewed by the SFO on 16 May 2012, although ENRC only discovered this from the SFO’s disclosure in this case given on 30 October 2020.

As can be seen from ENRC’s written opening and indeed Ms Montgomery QC’s cross-examination of Mr Gerrard, it claimed that Mr Gerrard did indeed know about the interview but withheld such information from his client. It relied at that point on an increasing friendship between Mr Gerrard and Mr Depel despite the latter’s erratic behaviour.

ENRC also relied on the making of a number of telephone calls between (a) Mr Gerrard and Mr Gould on 12 and 13 April 2012 and then a call with Mr Depel on 17 April, (b) a call between Mr Gerrard and Mr Gould on 17 May 2012 i.e. the day after the interview and then (c) a 44 minute call between Mr Gerrard and Mr Depel on Sunday 20 May. No notes were taken by Mr Gerrard, Mr Gould or Mr Depel that have been disclosed. ENRC says that there is an obvious inference that these calls were all about the Depel Interview.

As already noted, in evidence, Mr Gerrard emphatically denied that he knew about the interview and stated what a serious breach of duty it would have been if he did, since he never reported that fact to his client.

On Day 22, Ms Montgomery QC was asking Mr Gerrard questions about a note of an internal meeting where he referred to having received a text message from Mr McCarthy. This was against a background where Dechert’s Electronic Disclosure Questionnaire (“EDQ”) of 23 November 2018 had said that it had not retained any mobile phones used during its retainer but that in any event, text messages were extremely limited and trivial. It also said that Mr Gerrard had at least one device (i.e. a BlackBerry or mobile phone) replaced.

When asked about whether he had retained the mobile phone that received the text in question, Mr Gerrard said that he had no idea what happened to it, but that Dechert’s IT department would have information about the phone and any replacement. This led to further correspondence and then a letter from Clyde & Co dated 6 July 2021, which revealed that Dechert did indeed have backups of some of Mr Gerrard’s phone data. It stated that mobile devices issued to Mr Gerrard between April 2011 and December 2013 had been replaced on at least 10 occasions and at least three phones used by Mr Gerrard had been damaged. It appeared from that letter that, contrary to the EDQ, data such as text messages could be recovered. Further, Mr Gerrard did receive at least some significant texts from relevant parties, including SPJ, Mr Depel and Mr Gould. ENRC say that some of the text messages are highly relevant. One of them is the message referred to in paragraph 224 above: “only u and 2 know about s2”. This development was reported to me before the resumption of Mr Gerrard’s cross-examination on 7 July 2021, Day 24. Pending a full discussion, Mr Gerrard’s cross-examination continued for a short time to deal with some other matters, and then was suspended for the rest of the day to give ENRC time to consider the new material. For the rest of Day 24, Mr Gerrard stayed out of court and was not told of the exchanges between counsel and the court on these matters. It was decided that Mr Gerrard’s cross-examination would resume the following day and obviously the text referred to (among others) would be put to him. I was asked whether Mr Gerrard could be given all the new material to review (at least 600 texts) on the basis that although he was still in the middle of his cross-examination and could not therefore speak to his solicitors, he was a party to the action. I did not see that this made any difference and refused that request. I did, however, say that if, when being shown the texts, Mr Gerrard wanted some time to consider and reflect on what he had seen, I would permit it. Equally, because of the seriousness of the position (since, on the face of it, it could be suggested that he had deliberately lied in court about his knowledge of the Depel Interview) I was asked to give and gave the usual reminder about the privilege against self-incrimination when his cross-examination was continued at 2pm on Day 25.

When that cross-examination recommenced Ms Montgomery QC put two texts to Mr Gerrard. Both were from Mr Depel. The first was sent on 5 April 2012 at 7:24am and read “I would like to meet Dick early next week, can you arrange?” It is common ground that “Dick” refers to Mr Gould. She then put to him the text already quoted, sent on 21 May. Mr Gerrard did not ask for time before dealing with these texts, but said that he had “absolutely no recollection” of either of them. He said he was suffering from Long Covid and his memory was poor, but he had no recollection of talking to Mr Gould about this issue. He said he did not believe that Mr Depel did tell him about the interview and had no memory of it. It was then put to him that Mr Depel texted him on 17 April, saying “need you to call me ASAP and check your messages” which was followed later by a 24 minute phone call between the two of them. Mr Gerrard said that he did not believe that the conversation was about an interview but could not remember what was discussed. He also said that he had no memory of actually making any enquiries to the SFO on behalf of Mr Depel about a potential job there. He then said that by the texts shown to him, he must have known that Mr Depel was going to see the SFO. When it was put to him that he had previously said that he did not know that Mr Depel was “rushing off to the SFO” and this did not occur to him, he said this was not a deliberate untruth but it was his honest recollection. When it was put to him that his original answer was inaccurate and knowingly untruthful, Mr Gerrard said that it was not knowingly untrue. He had no recollection of Mr Depel telling him that he was going to see the SFO at all. He agreed that paragraph 257B (3) of his then Defence, which stated that he was unaware of the Depel Interview at the time, was not accurate. Equally, paragraph 21 of his second WS to the same effect was not accurate. Although he said he had no memory of this, he agreed that if he was doing his duty as a solicitor he would have to have told ENRC about the interview and Mr Depel’s text, but he did not. He agreed that he failed in that duty. ENRC was not on notice of the interview and so it could not react. He went on to say that, assuming he received the text, he did not think that he would have asked Mr Depel whether he had already been interviewed or was about to be interviewed, and that the text would not have provoked any questions from him. But he agreed that, as he had said previously, an SFO interview with the then Head of Global Compliance at ENRC would have been “huge” and it would not have been possible for him to keep quiet about it. It was then put to him that on the basis of the text, there was a deliberate decision by Mr Gerrard to avoid ENRC coming to know about the interview. He denied this, but agreed that he should have reported the fact of the interview. He could not remember why he did not. He also agreed he should have raised it when, according to him, he had advised ENRC to have an exit interview with Mr Depel because the worry was that someone like him leaves and then “pops up” as a whistleblower, or is interviewed under section 2 by the SFO. When put to him that an honest and competent solicitor would then have said that Mr Depel had given such an interview, Mr Gerrard responded that he should have raised it.

When Mr Gerrard came back into court following the mid-afternoon break, he said that he wanted to tell the court that during the break his wife had reminded him that he had suffered bouts of “global amnesia” in the past. As to that, first, of course, he should not have been discussing his evidence with his wife during the break, even if she initiated the discussion and second, there was no reference to any such amnesia in his WS nor any medical evidence about it. While Mr Gerrard’s cross-examination finished early on Day 26, I could not release him because the disclosure of new material was continuing and ENRC understandably wanted to reserve its right to recall Mr Gerrard for further questions if necessary. In the event, he was not later recalled and he was released on Day 36. I should add that although it had been intimated (prior to the disclosure of the texts) that there would be at least one and a half days of re-examination of Mr Gerrard, in the event, there was none at all.

Although there were some subsequent references to a possible application to adduce medical evidence in relation to Mr Gerrard’s ability to recollect matters (whether through global amnesia or otherwise) no such application was ever made. The only medical matter which had been pursued (without objection) was at the outset of the trial where it was said that Mr Gerrard was suffering from Long Covid and this might cause him to tire more easily or need more breaks. As it so happened, Mr Gerrard coped well with his lengthy cross-examination without any obvious difficulty, including on Days 25 and 26.

In its Re-Re-Amended Particulars of Claim dated 4 February 2021 ENRC had already alleged in paragraph 158A that Mr Gerrard had failed to inform ENRC of Mr Depel’s meeting with the SFO in April 2012, that the SFO was intending to serve a notice under s2A of the 1987 Act on Mr Depel or that the Depel Interview had taken place along with other matters. ENRC pleaded that it was to be inferred that Mr Gerrard was aware that ENRC did not know of Mr Depel’s meeting with the SFO in April 2012 or the SFO’s intention to serve a s2A notice on him or of the Depel Interview; and further that Mr Gerrard was aware that Mr Depel may disclose or may have disclosed to the SFO material which was privileged to ENRC and prejudicial to its interests. A plea of a consequent breach of duty followed. This was denied in Dechert’s Re-Amended Defence dated 19 February 2021.

Then, by an amendment made to the Re-Re-Amended Particulars of claim, on 27 July 2021, ENRC alleged that:

“158AA. Mr Gerrard has admitted that he must have known that Mr Depel was going to go to see the SFO, that he was on notice of the fact that Mr Depel had been served with a s2A notice and that he failed in his duty to ENRC by failing to inform it of these matters.”

By paragraph 413A(A) (1) of its Re-Re-Amended Defence dated 6 August 2021, and in a reversal of its previous denial, Dechert admitted that Mr Gerrard did not inform ENRC of Mr Depel’s meeting with the SFO in April 2012, that the SFO was intending to serve a notice under s2A or that the Depel Interview had taken place with a consequent breach of duty. Dechert went further in paragraph 428 (1) where it admitted that Mr Gerrard (and through him Dechert) had acted recklessly in committing the breaches of duty previously admitted in paragraph 413A(A) (1) (it also took points on causation and loss but they are not material to the present issue). Both iterations of the Defence referred to above were accompanied by a statement of truth signed by Mr Gerrard.

These admissions show that what had begun as ENRC’s inferential case against Mr Gerrard (prior to the disclosure of the texts) was true. The admission of recklessness means that Mr Gerrard admits that his subjective state of mind at the time was that, in knowing the facts about the Depel Interview and not telling his client, he simply did not care whether there was a breach of duty or not. However, as a matter of analysis, and given Mr Gerrard’s evidence about the obviously serious nature of any breach of duty which would follow non-disclosure of his knowledge of the Depel Interview, it is very hard to see why the admitted breach was not in fact deliberate as opposed to “merely” reckless even though the legal consequences are the same. Mr Gerrard must have known at the time (and not merely suspected) that he would be in breach of duty by not informing his client and in refraining from doing so, he acted deliberately. Indeed, the postulated (but entirely speculative and unsubstantiated) reasons why Mr Gerrard might have committed such a serious breach (see paragraphs 554-556 of Dechert’s Closing Submissions) - which was somehow to protect Mr Depel - actually assume that the breach was intentional. As it happens, there has been no evidence from Mr Gerrard as to why he committed this breach. That is partly because he always denied it but partly because he was not asked about his motive in re-examination, since there was none.

In one sense, the question of motive is less important here than in other areas. That is because the breach has been admitted and so motive is not required in order to show, as it sometimes does, that the commission of the breach, though denied, is more likely than not. But in another sense, it is important as a contextual matter for ENRC’s case against him as a whole.

I think the truth is that when one looks at the other evidence concerning the Depel Interview the overwhelming inference is that if Mr Gerrard did not actually instigate it, he certainly facilitated it. That may have been partly because he knew through his friendship with Mr Depel that the latter wanted to be a whistleblower to the SFO. It may also have been in part because it suited him at the time to keep the SFO’s interest alive at least for the purpose of obtaining a civil settlement. I also think it was probably another attempt for him to curry favour with the SFO. Having acted in this way, the last thing Mr Gerrard would then have wanted was to let his clients know about it.

It is convenient here just to say a little more about the friendship between Mr Gerrard and Mr Depel. That friendship was already, i.e. prior to the disclosure of the texts, (and is) well-demonstrated by the contemporaneous documents. These have now been collated in detail at Appendix 8A to ENRC’s Closing. They show the contacts between Mr Gerrard and Mr Depel before, at the time of and after the Depel Interview. Mr Depel was in fact the person responsible for instructing Mr Gerrard in the first place. Later on, they show that to an extent they treated each other as confidantes. Mr Depel was supportive of Mr Gerrard’s approach to the investigation and Mr Gerrard supported Mr Depel up to and beyond the termination of Dechert’s retainer. For example, he commented on a letter sent by Mr Depel to Mr Dalman on 27 February, 2013 which made serious allegations against ENRC, his own client. He later commented upon the draft of a letter which was ultimately sent by Mr Depel to Sir David Green on 15 April, again making serious allegations about ENRC. If one compares the draft sent to Mr Gerrard on 5 April with the version as sent, the only amendment appears to be the removal of the explicit reference to Mr Gerrard himself. While, in the event, it was not necessary to engage to any great extent in the friendship between Mr Depel and Mr Gerrard, given that the key allegation, being Mr Gerrard’s knowledge of the Depel Interview, was admitted, that friendship is significant background. Further, since Appendix 8A is simply a collection of documents with references to what they say, it cannot seriously be doubted. The texts then provided more material. An example of that is the text sent to Mr Gerrard by Mr Depel on 23 April 2012 as follows:

“Cary here. The ceo of the sfo resigned last week. Is that a job worth having? Could you make some enquiries for me. Thx.”

The main contextual point here is that it demonstrates that Mr Gerrard was prepared, when it suited him, to act in a way which was completely contrary to his client’s interests. All Dechert has said in response to this is in effect that if he had told ENRC it would not have been likely to make any difference. That does not necessarily follow and the issue of causation here is not for this judgment but in any event, I do not see how this affects the nature of the breach.

Although Mr Thompson took the view that the results of the Depel Interview justified opening a criminal investigation there and then (which did not happen) this does not mean that Mr Gerrard intended that particular outcome at that time, not least because that would represent a failure on his part and would almost certainly have precipitated the termination of Dechert’s retainer. That, however, does not mean that he did not have the more generalised motive referred to above.

The other consequence of the Depel Interview concerns its impact on Mr Gerrard’s credibility. Here, it is necessary first to determine whether Mr Gerrard was telling the truth when he said on Day 25 that he had absolutely no recollection of the text referred to in paragraph 224 above. If this was correct it would not affect the underlying (and now admitted as reckless) breach of duty but it would mean that he had not been lying about it previously. But if in truth he did recollect the text, to say in evidence that he had not, could not have been a mistake. It must itself have been a lie since he is taken to know the state of his own mind.

In my judgment, Mr Gerrard cannot possibly have forgotten the text, having accepted that he did get it at the time. The allegation about not informing ENRC about the Depel Interview had been made for some time and it was not about a trivial breach of duty. If he had forgotten about the text, he had been forgetting about it for some time, including during the period when his WS was being written. In my judgment, that is wholly implausible. I consider that he did recall it when asked about it, but pretended he had not. He therefore lied in that respect and more generally, in saying that he had not committed the breach of duty when he knew that he had.

It needs also to be remembered that Mr Gerrard himself contributed to the (original) non-disclosure of the back-up texts. This is because it must have been on his instructions that Dechert’s EDQ filed on 23 November 2018 stated (a) that he had to replace at least one device when in truth it seems there were some 19 devices in the course of the retainer (11 of which were lost or destroyed after a document preservation notice had been issued in 2013) and (b) that his use of text messages was “extremely limited and trivial”. The first tranche of texts disclosed showed 364 texts sent in less than two years to 14 relevant persons. In isolation that is still a very small number; nonetheless, it was inaccurate for the issue of texts and their retention to have been described as they had been.

It is also worth noting that Mr Onslow QC for Dechert submitted in closing (Day 45/13) that Dechert did not in fact need to rely on Mr Gerrard’s written or oral evidence where it was not corroborated by contemporaneous documents. That was said to be because there was a very full documentary record which would show that ENRC’s case was clearly wrong in relevant respects. But whether that latter conclusion is correct for any given incident, I will discuss below.

Accordingly, when considering other alleged breaches of duty on the part of Mr Gerrard (notably, but not exclusively, the August Leak), I am entitled to take into account those contextual consequences of his evidence on the Depel Interview to the extent I consider it appropriate. I will deal with other aspects of the Depel Interview below.

Indeed, quite apart from the issue of the Depel Interview and its implications for Mr Gerrard’s credibility just discussed, I very much regret to say that in general I found him to be a highly unreliable and at times dishonest witness. His evidence was often inconsistent with the documents or implausible, and on more than one occasion, he was plainly lying. All of this will be seen, in context, below.

For now, I can return to address the issues as they arise chronologically.

There is nothing wrong with a solicitor wanting to build up business for his firm and thereby bring financial and reputational benefits for the firm and himself. The fact that a solicitor has sought and managed to lead a large case cannot itself be a point of criticism; indeed it is likely to be praised, assuming it is work which the firm can competently and timeously undertake.

However, the points made against Mr Gerrard’s approach to getting work for ENRC in this case go well beyond what might be regarded as the norm. They are that he was so obsessed with making money from his work that he lost any real sense of objectivity, proportion or indeed loyalty to his client. And that in order to support his own reputation - and, in my view, his ego - he would make extravagant claims. Indeed, in answer to a question from me, he accepted that he was probably prone to exaggeration sometimes. I think that is something of an understatement.

To give but one example at this stage, Mr Gerrard told a number of people (Mr Findlay, Mr Trevelyan, Mr Prosper and Mr Gould) that he had been approached to be Director of the SFO previously but turned it down, or words to that effect. Mr Findlay recounted that he said this was because there was not enough money in it. There was in fact no evidence that Mr Gerrard had ever been approached for this job and indeed in evidence he did not suggest there had been. Yet his biographical entry on the Dechert website (at least up to 6 February 2016) stated “Mr Gerrard has in the past been shortlisted to be Director of the SFO”. As to that entry, he said that actually he did not know if he had ever been shortlisted, in which case it is impossible to understand how this entry was responsibly put onto the website, especially as he agreed he had approved it. Had he been shortlisted, he would have known about it (which is the premise underlying this particular entry). At best, this was a considerable exaggeration of the reputation which he claimed he had at the SFO; at worst it is simply untrue. Either way, it was a misleading statement by a professional to potential clients.

As to earnings, in December 2009, having had a meeting with Dechert, he told the recruitment agent that a minimum of £20 million or possibly up to £30 million in fees would leave with him if he left DLA. He later said in January 2010 that another firm had recently offered him a guaranteed salary of £2 million per year for two years, which he turned down because of his international profile. In an email from Steve Feirson, a Dechert US Partner who was involved in the possible recruitment of Mr Gerrard and his team, he noted that they would be expected to generate about $21-22.5 million in the first 12 months. He noted that they had said that $15 million was “already in the door and is being worked on. The remainder would come in from work in the pipeline or to be pitched”.

Later on, as discussions continued, on 3 February 2011, Mr Feirson emailed Mr Levander, another US Partner, to say that Mr Gerrard needed to be assured that if he produced a £12 million practice, he could easily reach £2 million by way of remuneration from the firm (there being a base amount of £1.75 million).

However, in cross-examination, Mr Gerrard denied that there was an expectation that if he was hired, he would deliver a £12 million practice. He said that “at no stage in any of the discussions I had with Dechert did I indicate how much I would bill or generate.” In the light of the emails just quoted, that cannot have been true. The point is not so much that there is necessarily anything wrong with giving a predicted earnings figure; it is that Mr Gerrard saw fit to deny that he had done so.

It is worth noting that on 26 October 2010, Mr Defries, one of Dechert’s London partners wrote to Mr Feirson as follows:

“Just a short note on Neil Gerrard with whom I understand we are in an advanced stage of discussions. I came across him when I worked on the ...European restructuring in the wake of the Chapter 11 filing. Weil Gotshal were the debtors counsel in the bankruptcy and because of the implications for the wider group, Weil’s London office was asked to assist the European subsidiaries of which there were about 120. Neil and his team were brought in by the directors I am not sure how.. The DLA team was made up of Neil… The DLA team did not come across as an elite group in the many meetings I spent on the opposite side of the table to them. Neil was heavily involved at the beginning, and he did I think gain the confidence of the UK directors of. . . who seemed to place a lot of importance on what he said (but …and not the directors were paying DLA’s fees). If you had asked me or AlixPartners at the time whether the advice Neil’s team was giving was unduly negative and to an extent scaremongering in order to increase DLA’s fees the answer would have been a resounding yes. The overall impression I formed of them is that they made a little go a long way, by which I mean that they were advising the UK directors (plus the European directors) on their potential liability under the various insolvency regimes applicable in the jurisdictions in which… had subsidiaries, without perhaps recognising that it was not in anyone’s interest for these local entities many of which held telecoms licences to be allowed to become insolvent. As a result I think Neil spent a lot of time charming the European CEO of… who then abruptly resigned once some emails emerged which cast doubt on her judgment as regards prior accounting practices… at in Europe. In summary, I think the technical legal advice they gave was ok, but it was straightforward issues they were advising on. ..They did not make themselves particularly popular with either… Weil or AlixPartners and came across as something of an irritant. Neil as I recall was capable of a lot of charm, but I did not see a great deal of substance from him in the meetings. I got the impression he used others to do the work.”

In many ways, those remarks will be seen to have been prescient.

Some of the observations made about Mr Gerrard (most of which were complimentary) by those Dechert lawyers who interviewed him (see the composite document of 24 February 2011) are also revealing. They refer to his ego, a lack of clarity on details of profits for the work he did, his ability to turn a small job into a large one and a strategy of “hero marketing” around him. These are not, by themselves, fatal criticisms. But they do give a clue to his modus operandi.

I have little doubt that Mr Gerrard had a large ego and a belief that he is always right and expected others to follow him implicitly.

I agree with ENRC that in the first part of 2011, and indeed prior to the SFO Letter, Mr Gerrard must have been under some significant pressure. He clearly needed, first, to bring over the ENRC case to Dechert and was worried at the prospect that DLA might put him on garden leave, although in the event it did not.

Notwithstanding Mr Gerrard’s assurances about fee income in the event that he moved, the only client that came to Dechert through him was ENRC, prior to April 2013, with some very small exceptions. Almost all of his income from April 2011-April 2013 was drawn from the profits from the £13 million billed to ENRC.

However, at the start of his retainer with ENRC, that amount of work was far from being guaranteed and was a long way from the original £400,000 estimate. Here, context is important. In some kinds of legal work, for example acting for the purchaser of a company or for a party in a piece of litigation, there is, in a real sense, a finite object, to acquire the company on suitable terms or to win the case or settle on suitable terms. Of course, the precise amount of work done and fees charged will vary, depending on the number and seniority (and hourly rates) of the fee earners involved and the extent of the work judged appropriate in order to further those objects. In addition, sometimes unexpected developments will increase (or decrease) the costs. But the kind of exercise which Mr Gerrard and the Dechert team were hired to undertake was much less structured and was, or became, more vulnerable to expansion in my view. First, the initial work was that of investigation where it was possible for the number or size of the investigations to expand (or not). Second, at least at the outset, there was no counterparty in place. Nor would there be until and unless the SFO took an active interest, as it did by the SFO Letter. Before then, it was a putative counterparty only, albeit an important one. It has also to be recalled that it was open to ENRC to self-report under the 2009 Guidelines and in fact take the initiative without any prior engagement of the SFO.

It therefore stands to reason that the more trouble ENRC perceived itself to be in, with regard to matters that might be of interest to the SFO, or indeed simply to itself as a matter of good governance, the more work would be generated for Mr Gerrard and Dechert, among others.

That is why, in my view, Mr Gerrard was able to email Mr Feirson while in Kazakhstan on 2 June 2011, to say that “we have found great incriminating evidence - so good”. One would have thought that if they found nothing untoward in the Kazakhstan operations, that would be a good result. And later the same day he emailed “it’s been utterly unbelievable. Could be a great case if it goes the way it should.” The “should” can only be some form of expansion because more trouble had been found. In cross-examination Mr Gerrard said that he thought that the evidence found about the “false office” in Rudny, Kazakhstan (see below) was in fact “great” because he wanted to be successful in getting to the bottom of the problem. Later, he said that it was good for ENRC to have been able to get so far in its investigations. The mere fact that it could mount an investigation and get to the bottom of it was great for a company. I regard all of that as disingenuous. It ignores the fact that if the investigation in Kazakhstan had disclosed no real problem, this would have been the best outcome for the company. Mr Gerrard’s email comments were obviously about the prospect of further, perhaps substantial further, work which he would now be instructed to do.

That same lack of frankness can be seen when Mr Gerrard was asked about his email to Mr Pickworth dated 8 November 2011: “… The company has agreed to self-report and… Dechert will be the lead law firm. Hooray.” The “hooray” was obviously that Dechert had got the job as lead law firm. Mr Gerrard could just have accepted that interpretation, and said it was innocuous. Instead he said that it meant he was “pleased that we had clarity and were moving forward” (on the self-report). That, again, is simply to ignore the obvious sense of his own remarks.

In my judgment, all of the above means that Mr Gerrard did indeed have a motive and inclination to “kick-start” more substantial work for ENRC by increasing the prospect that the SFO would become involved, not so as to provoke a criminal investigation; but rather to cause a large amount of work to be done which would lead to a self-report and some form of civil settlement which would avoid a criminal investigation. That does not mean that every solicitor who found himself in the position of Mr Gerrard would take action to bring that about in the way alleged here. The question at issue is whether Mr Gerrard would have, and did.

SPJ, along with Sir Ken Olisa, had expressed serious concerns about ENRC’s governance and its operations. SPJ was a keen supporter of the investigation. He clearly considered that it was in the ultimate best interests of ENRC to expose and deal with all aspects of any improper dealings and corruption which might be found. He also had real concerns about the continued influence of the Founders, and was very resistant to any of them becoming Chairman, once Dr Sittard’s term of office expired.

All of those sentiments Mr Gerrard probably agreed with, but at all material times, it remains the case that SPJ was not the “client” for the purpose of giving instructions or providing or receiving information. That was the AC and then the SIC. The distinction between the “client” for these purposes, and other individuals at ENRC was particularly important to maintain here because, as Mr Gerrard knew, ENRC was itself riven by splits and factions.

Mr Findlay says that he was told by Mr Trevelyan on or around 30 June 2011 that the leaker in respect of an article about ENRC in The Times on 8 June was SPJ, and (according to Mr Trevelyan’s journalist contact) Mr Robertson said in particular that SPJ had been “singing like a canary”. Mr Trevelyan, for his part, agreed that Mr Hollingsworth had told him that the leaker was SPJ and he told Mr Findlay immediately. Mr Findlay says that in turn, he told Mr Gerrard right away. If Mr Findlay had indeed found this out at this stage, there is no reason why he would not immediately tell Mr Gerrard.

However, there is no evidence that this important information was communicated to ENRC prior to 24 August. That is when, according to Mr Ehrensberger’s email to Mr Vulis dated 25 August, he and Mr Gerrard had a meeting with Mr Findlay, who produced a five-page summary of his findings about the leaker which suggested it was SPJ. Mr Ehrensberger thought that Mr Gerrard was only told this for the first time at that stage, but on the dates that cannot be right since, on this point, there is no reason to doubt Mr Findlay and Mr Trevelyan’s evidence as to when Mr Gerrard was first told. On this basis, it is inexplicable why Mr Gerrard did not inform ENRC immediately that he knew.

Furthermore, on 1 July 2011, the day after Mr Findlay says he found out that SPJ was the leaker, he emailed SPJ at 1:29pm to suggest a meeting with Mr Gerrard and himself. For his part, Mr Gerrard emailed SPJ at 5:06pm to say it “might be better” if they met up for coffee and asked if Mr Findlay should join.

The upshot was that Mr Gerrard met SPJ at the latter’s flat on Monday 4 July and he made a call during or shortly after that meeting to Mr Findlay. SPJ later agreed to meet Mr Findlay on 6 July. According to Mr Findlay, SPJ asked whether he would be prepared to investigate the Founders, but he declined. Mr Findlay called Mr Gerrard later that day. Mr Gerrard then met SPJ again, on Thursday 7 July, and Mr Findlay later texted Mr Gerrard to ask “what happened with Paul”. These meetings were not documented and Mr Gerrard’s diary shows them as “padlocked” i.e. private.

On Monday 11 July, Mr Findlay emailed SPJ to say they had had a “minor breakthrough” and “Neil has been briefed” and he texted Mr Gerrard asking to speak to him. On Sunday 17 July, SPJ texted Mr Gerrard to call him about “some interesting information”. Later on, SPJ emailed him a “private” copy of the Good Corporation report into ENRC and for his part, Mr Gerrard asked if SPJ had a copy of the FRA report. On Monday 25 July, Mr Gerrard said at an FRA meeting that SPJ wanted to use “sunlight as disinfectant of corruption”. The following day, he and Mr Findlay had dinner with SPJ. On Friday 29 July, SPJ did obtain a copy of the FRA report from Mr Ehrensberger, presumably as a result of the suggestion made by Mr Gerrard the previous week. There was yet another undocumented meeting over lunch between Mr Findlay, Mr Gerrard and SPJ on 3 August.

An exchange of emails between Mr Gerrard and SPJ on 4 August shows SPJ telling Mr Gerrard that he had persuaded Mr Ammann to keep the forthcoming AC meeting on 10 August, the following week, restricted to AC members only plus Mr Gerrard. He said that when Mr Gerrard communicated with Mr Ammann, he should say the same thing.

Pausing there, all of these communications were, in my judgment, highly irregular so far as Mr Gerrard was concerned. He knew at this stage that The Times’ journalist had said that the leaker was SPJ and even if he did not know that, this was the commonly held suspicion at ENRC. It is not clear what this flurry of activity with SPJ was really about. And there was a desire to stage-manage the AC meeting with Mr Ammann. Whether Mr Gerrard was doing all of this because he felt that ultimately it was best for ENRC is beside the point. He simply should not have been talking to SPJ at this stage especially as Mr Ammann, from whom he was to take instructions, was clearly unaware of it.

For the meeting on 10 August, Dechert was to produce a Progress Report on the investigation. On 8 August, Mr Gerrard (through Mr Anderson) sent a copy of the then draft of the report to SPJ. This version noted at paragraph 4.6 that there was widespread corruption in procurement at SSGPO, with profits being deposited in Swiss and Latvian banks. In addition, in an interview he gave to the journalist John Helmer on 1 October, SPJ said that he had been told by Mr Gerrard that there was a new “smoking gun” in an FRA report about ENRC’s operations in Africa, although the report had not yet been delivered to the AC or him. He said that Mr Gerrard had told him that there was new evidence of corruption on the part of Victor Hanna in Africa. In fact, the final version of the Progress Report omitted any reference to the Swiss and Latvian bank accounts; however SPJ clearly made use of that information because he communicated it to the SFO in an email dated 20 September 2011. For Mr Gerrard to pass such information to SPJ in this way was extraordinary, given what Mr Gerrard knew (or on his case must at least have suspected) of SPJ.

Following the AC meeting and on 15 August, Mr Gerrard asked SPJ to return the draft report he had earlier received, or delete it. This was said to be on the basis that the eventual report itself was not actually circulated at the AC meeting at all (although an Executive Summary was, but then collected at the end). In cross-examination, however, Mr Gerrard said that the draft report sent to SPJ on 8 August was itself sent in error. He said that the Progress Report was intended to be kept from the AC, SPJ must have asked for it and in error Mr Gerrard agreed to give it to him. That explanation makes no sense and is inconsistent with the deliberate nature of Mr Anderson’s email of 8 August to SPJ. It also conflicts with the email of 15 August which does not suggest that the report had originally been sent in error to SPJ at all. Then Mr Gerrard said that the error was that he had forgotten that SPJ had been sent the report in the first place - i.e. a different error. He said this then explained why SPJ’s name did not appear on a list produced by Dechert subsequently of the names of all those who had received particular documents. Mr Gerrard agreed that he should have told ENRC that he had sent a copy of the report to SPJ but that was a mistake.

None of these explanations is plausible. The only realistic inference is that Mr Gerrard was improperly providing SPJ with information which he knew or at least suspected might be leaked. It was plainly against ENRC’s interests. It is no answer, as Mr Gerrard ventured at one point, to say that SPJ was entitled to be given “updates” because he was a member of the AC and a non-executive director. He was those things, but he was not entitled to that information in circumstances where he might well use it against ENRC.

Equally, SPJ seems to have been keeping Mr Gerrard abreast of what he was doing, for example having a lunch meeting with Glyn Barker of PwC, ENRC’s auditors, when they agreed that any whistleblower investigations should be done independently of the company, and by lawyers who were skilled in these matters (i.e, obviously, Mr Gerrard) and when Mr Barker apparently agreed that if certain people became Chairman (i.e. one of the Founders) PwC would resign as auditors. The email of 28 July conveying this information was blind-copied to Mr Gerrard. Mr Barker did subsequently contact the SFO to arrange a meeting, at the beginning of September. Also, on 21 July, SPJ had emailed a copy of the Good Corporation report, although Mr Gerrard in fact already had it. This is when Mr Gerrard had asked SPJ if he had the FRA report, SPJ said that he did not and they then arranged to meet the following week. SPJ later forwarded to Mr Gerrard an email from Nick Parry of Inception Partners, about acquiring leaked documents. As to this, Mr Gerrard said that SPJ would have wanted an update and Mr Gerrard had no instructions not to talk to him. But that is no answer when these were private meetings, unknown to ENRC, and taking place when SPJ, whatever his motives, was at least a suspected leaker.

A final example of Mr Gerrard’s improper conduct occurred when Mr Ammann emailed Mr Gerrard expressly to say that because of the continued leaks, Board minutes should not now be sent to other AC members and that Mr Gerrard should not have any further meetings with SPJ. Despite this, Mr Gerrard went ahead with a meeting with SPJ at the latter’s apartment the next day. This was to give him a briefing about deals in Kazakhstan for which a detailed speaking note was being prepared. Mr Gerrard eventually accepted in cross-examination that on the basis of the Board’s instruction which itself was the basis for Mr Ammann’s email, it was an error on his part to have met with SPJ. He had previously said that he thought he could still see SPJ because, after all, Mr Ammann was only the Chairman of the AC and he thought that Mr Ehrensberger had agreed that SPJ should be kept in the loop. There was in fact no evidence of that at this particular time. In my judgment, Mr Gerrard knew he should not have been meeting SPJ, but went ahead anyway.

In the light of all of that evidence:

As with Mr Gerrard, the allegations against the SFO which involve Mr Alderman are very serious, since they concern not merely the torts of inducement to breach of contract and/or misfeasance in public office but ones where the officer concerned was himself the head of a state organisation whose very function is to investigate and, where appropriate, prosecute or otherwise resolve instances of serious wrongdoing.

In particular, Mr Alderman is the officer or one of the officers involved in Disputed Contacts 1-8 and 11, and within that context, the subject of allegations of deliberate failures to record material events and information.

It is therefore relevant to consider what factors, if any, there may have been which would have disposed Mr Alderman to commit all or any of the breaches alleged which concern him. I consider the following matters:

In this regard it is worth noting that Sir David (a witness for the SFO) provided what in my view were valuable insights into Mr Alderman and how he was perceived. Whilst Sir David was obviously not there while Mr Alderman was Director, he did have to deal with much of the fallout from Mr Alderman’s regime.

It cannot be seriously doubted that in the course of his Directorship, a number of events occurred which were at best ill-considered or naïve so far as he was concerned, and at worst plainly unlawful. As the underlying facts are generally not in dispute, I propose to summarise the relevant matters.

The settlement agreement made with BAE Systems Plc on 5 February 2010 included a guilty plea to an offence under section 221 of the Companies Act 1985. On 21 December 2010 Bean J (as he then was) refused to sentence on the basis advanced by the SFO. He observed that the settlement agreement was:

“loosely and perhaps hastily drafted… The heart of the matter is paragraph 8, whereby the SFO agreed there would be no further investigation or prosecutions of any member of the BAE Group for any conduct preceding 5.2.10… surprised to find a prosecutor granting a blanket indemnity for all offences committed in the past, whether disclosed or otherwise. The US Department for Justice did not do so in this case…”

He was also “astonished” to discover that the SFO did not invite the Court to proceed on the basis that part of a sum of $12.4 million paid to companies controlled by a third-party “marketing adviser” was used for corrupt purposes.

The settlement with Innospec in March 2010 was criticised by Thomas LJ (as he then was) as follows in paragraphs 40, 42, 43, 45 and 50:

“…a fine of US$12.7 million would have been wholly inadequate as a fine to reflect the criminality displayed by Innospec Ltd. This was corruption involving the payment of very substantial amounts to the most senior officials of the government of Indonesia over a long period of time. …this court was placed in a position where it had little alternative but to agree to the limit of US$12.7 million, if it was to avoid injustice. It must, however, be appreciated that the circumstances of this case are unique. There will be no reason for any such limitation in any other case... …As it…is for the court ultimately to determine the sanction to be imposed for the criminal conduct, an agreement between prosecutors as to the division, even if it had been within the power of the Director of the SFO (which as I have explained it was not) cannot be in accordance with basic constitutional principles.…Nor in my view was the division agreed one which on the facts of the case accorded with principle. The gravamen of the criminality was centred in the UK…My provisional view is that the amount should have been divided 50-50 [between the US and UK authorities, rather than 68 (US) - 32 (UK)] … I have concluded that the Director of the SFO had no power to enter into the arrangements made and no such arrangements should be made again.… There was at some stage a suggestion that a press notice in a form approved could be issued by Innospec. This is not a practice which should be adopted in England and Wales…It would be inconceivable for a prosecutor to approve a press statement to be made by a person convicted of burglary or rape; companies who are guilty of corruption should be treated no differently to others who commit serious crimes.”

It is perfectly true that Thomas LJ did commend Mr Alderman at paragraph 22 and the first part of paragraph 45 for his vigorous policy of investigating corruption while also encouraging cooperation. Nonetheless, I agree with ENRC that it is not possible to dismiss the significance of these remarks in relation to Mr Alderman’s approach by saying that what this was about was no more than a legal error.

On 7 March 2011, the SFO applied for and was granted search warrants for the homes of Robert and Vincent Tchenguiz and the offices of two associated companies under s2(4) of the 1987 Act (see paragraphs 129 and 130 above). They were executed at a dawn raid which had been notified in advance to the press. The legality of the warrants and Mr Alderman’s conduct was challenged in Judicial Review proceedings leading to a decision of the Divisional Court on 31 July 2012 in R (Tchenguiz) v SFO [2012] EWHC 2254. The Court was highly critical of the way in which the case for the warrants had been presented to the judge hearing the application, saying that there was a failure by the SFO to set out material facts and that the account given to the judge was inadequate and unfair. It also criticised the seizure pursuant to the warrants of privileged material. In the respect of a “here and now” notice issued by Mr Alderman to retain possession of the material improperly seized, the Court said that there was no doubt that he had acted unlawfully. In relation to costs, the Court said this:

“Our starting point is that the conduct of the former Director has to be considered against the background of the duty that there was imposed on him. That duty was the heavy and critically important duty of ensuring that the information presented before Judge Worsley QC in support of the application for the warrants contained accurate and comprehensive material which itself was the product of a very careful and well-balanced investigation. All these matters must have been apparent to the former Director. In this case, for the reasons explained in our judgment, the former Director wholly failed to discharge this duty in circumstances in which the claimants’ reputations were bound to be seriously damaged by the issue and the execution of the warrants, given the very public manner in which this was done..”

While the Court added a postscript, at paragraph 293, which stated that the SFO had clearly not been properly resourced for this case which had a number of consequences, I do not see how that affects the underlying gravity of the comments referred to above.

The SFO was later sued by the Tchenguiz brothers for misfeasance by its officers including Mr Alderman. Sir David settled those proceedings in 2014 for £4.5 million in damages and £3 million in costs, and his view, in reaching that settlement, was that the SFO had done “quite well”. He issued a public apology and said that the SFO had “changed a great deal” since March 2011.

In its closing submissions, the SFO submitted that this whole incident was essentially irrelevant as to how Mr Alderman may have acted in this case. It was, at the end of the day, simply a question of unlawfulness in JR proceedings. I disagree. It was a case betraying a serious lack of propriety on the part of Mr Alderman.

Between September 2011 and April 2012, Mr Alderman arranged severance payments for three senior SFO executives who had worked closely with him, Ms Williamson, the SFO’s then CEO (£464,905), Mr Bailes, then the SFO’s COO (£473,167) and Mr McCall, then Head of Technical and Specialist services (£49,885).

Sir David thought that these payments were improper and ordered an investigation and report which was undertaken by Tim Hurdle, a Finance Director at the Treasury Solicitor’s department. This report which was delivered on 31 July 2012 concluded that the payments were irregular due to a lack of the required approval and there was an apparent desire for secrecy surrounding these arrangements. At that point Mr Alderman had not provided an explanation for the arrangements made. But following a further request made by Mr Hurdle on 6 September, Mr Alderman did provide an explanation on 28 September. He said that Ms Williamson and Mr Bailes had been looking for other roles since the previous summer as they had been told by the Attorney General’s office and the Treasury Solicitor that they would be expected to leave their desks within a month or two of Mr Alderman’s own departure, and Sir David made it clear that he saw no need for their roles. Mr Hurdle sought the comments of Mr Fish of the Attorney General’s office and Sir Paul Jenkins of the Treasury Solicitor’s office who made it clear that they did not accept the truth of his assertions. Further, in cross-examination, Sir David said that it was “quite untrue” that he had decided any such redundancies at that stage. He did go on to say that he thought Mr Alderman had believed what he was saying, but that it was incorrect. I suspect Sir David was being diplomatic here. It is difficult to see how Mr Alderman could simply have been mistaken given the rebuttals from the offices of the Treasury Solicitor and the Attorney- General. Further, while Mr Alderman claimed that he had records of communications in this regard with the Treasury Solicitor, none was ever produced or found and Sir David thought they did not exist.

Sir David also agreed that a separate internal investigation revealed that information that had been supplied to Sir Alex Allan who also produced a report on these matters, to the effect that Ms Williamson’s promotion was regular when it was not, had misled him. He said that Mr Alderman was responsible for this if he supplied the information, and it is not suggested that it came from someone else. Sir David was, again, not prepared to go further and say that this was a deliberate untruth on the part of Mr Alderman. Rather, he had “convinced himself that what he was doing was right”.

Finally, Sir David said that he would not characterise Mr Alderman’s way of working as involving a “lack of integrity”; rather it was an odd way of doing things that he somehow justified to himself. He then said that he was not qualified to say whether this amounted to a lack of integrity or not.

In addition, in 2010, the SFO spent a total of over £1 million on consultancy fees when all new consultancy contracts over £20,000 required departmental approval. The invoices here were all split up into individual amounts of less than £20,000. In 2014 the Civil Service Code Standards Committee concluded that there had been an abuse of the Civil Service Code. Sir David said in evidence that this spending, overseen by Mr Alderman, was “crude and improper and in breach of the rules”.

Further, and somewhat remarkably, another report commissioned by Sir David referred to the printing of a colour brochure entitled “Transforming the SFO 2008 to 2012”. Copies of the brochure were delivered on Ms Williamson’s last day in office and had been written and printed outside the office at a cost of £17,700 plus VAT. The author of the report said that it had been “Written by ghostwriters… They glorified Richard Alderman and Philippa Williamson. It has become clear that this was symbolic of the state of the SFO at that time”. The report went on to say that following an unfavourable reaction in the press, these leaflets were pulped. Their contents were a “mirage created by management consultants…”.

In cross-examination, Sir David said that under Mr Alderman’s watch, the SFO had lost its way and was known colloquially as “Nightmare on Elm Street” and the “Serious Farce Office”. He said that Mr Alderman had left the SFO in quite a bad way, although Mr Alderman would not say that. From June 2011, the then coalition government kept under review the question as to whether the SFO should now be incorporated into the National Crime Agency following earlier suggestions that it should be disbanded. This remained the position whilst Sir David was there. While that review was no doubt unsettling for both Directors, it was not the same as an imminent threat of disbandment.

In 2010, Mr Alderman asked HM Chief Inspector, Michael Fuller, to inspect and then produce a report on the SFO to assist the Attorney General and this was produced in November 2012 (“the CPS Report”). Its Executive Summary stated that:

“At present, the SFO carries out some of its casework to a high standard, but there is clear room for improvement. This is borne out not only through our inspection findings, but also in the views of the many stakeholders we have consulted…Therefore, much needs to be addressed if the SFO is to become a respected crime fighting organisation which is the envy of the world. The new Director recognises this and is fully committed to driving improvement. With this in mind he has invited me to re-inspect within the next two years, and to assess progress against the recommendations made in this report, which should be viewed as a staging-post on the road to success.”

It later stated that:

“The SFO has some very capable operational staff, but the quality of casework handling, and the capability of the SFO to assure itself of this is significantly undermined by weakness in systems and processes. Its casework handling processes are weak, and need urgent streamlining, including the standardisation of forms and record keeping. Case management compliance levels are currently insufficient, and new processes need to be mandated through effective performance management. Quality assurance is essential, and the new Director recognises this…..It should be noted that the timing of the inspection means that findings relate almost exclusively to casework quality levels and systems under the previous Director.”

Sir David also said that when he arrived, staff morale was very low. He agreed that Ms Williamson had been promoted by Mr Alderman without a proper process and given an “exotic” working arrangement. He accepted that Mr Alderman’s practices included “jobs for the boys and girls”. In another case, he had to issue a “profound apology” on behalf of the SFO for Mr Alderman’s mistreatment of an employee. Mr McCall, for his part, said it was a very challenging environment in which to work and Mr Gould said that the conduct of some in the SFO hierarchy had a very negative effect on other members of staff. He thought the behaviour of some senior management amounted to bullying and others felt the same way as him. Mr Thompson thought Mr Alderman and his senior managers were prone to selecting people who were their favourites.

At this stage it is worth saying something about the relationship between Mr Gould and Mr Gerrard. The former did not attend any OM until OM3 on 20 December 2011, and the first DC to involve him was DC13 on 9 May, although he was also party to a (non-DC) call with Mr Thompson, Mr Pickworth and Mr Gerrard on 20 February.

However, he had already discussed non-ENRC matters with Mr Gerrard earlier than that. This is illustrated by the much-debated cryptic email sent by Mr Gould to Mr Pickworth, for Mr Gerrard’s attention which said this:

“I'm sending this to you as I'm not certain of Neil's e-mail address.

Can I ask you to raise with Neil the comment he made over coffee about having a face to face discussion with certain parties about the lay of the land.

I have had a long think about this, and before you say anything yes it did hurt, and decided that I not only should but arguably must if there is a possibility of moving the entire topic forward.

As such could you mention that I would, if the certain party wishes to, like to do this sooner rather than later (nothing sinister but I have some personal issues in the near/mid future which may impact on my ability to fit in with diaries at a later date).

Apologies for using you as a conduit.”

Although in evidence, Mr Gould thought that his reference to “hurt” was probably about his treatment at the SFO, I rather suspect that, read in a common-sense way, Mr Gould was joking, saying that it hurt his brain because he had to have a long think. There was an attempt in re-examination to suggest this to him which he did not take up but nonetheless I think this is the natural reading of the email.

Nonetheless, Mr Gould clearly felt confident enough to mention these matters to Mr Gerrard (and he is careful how he described them here to Mr Pickworth) in circumstances where they were on different sides, as it were, so far as ENRC was concerned. Mr Gould suggested in evidence that this was the sort of matter he might have raised with any lawyer but I think this was downplaying his relationship with Mr Gerrard.

There is further evidence on this point. Mr Gould himself accepted in evidence that he would trust Mr Gerrard not to “spill the beans” on him back to the SFO. Further, at least according to Mr Gould, the lunch at Shaw’s Booksellers on 12 October 2012 which formed DC19 (see paragraphs 778-780 below) was “social”. Mr Gould’s later text to Mr Gerrard on 20 November shows that he was prepared to disclose the SFO’s thinking which must have been confidential. I deal with this at paragraphs 781 and 783 below.

Another text of 7 February 2013 shows Mr Gould telling Mr Gerrard about a job application and how he wanted to “grab hold of the case and get it concluded properly”. There were also many telephone calls between the two.

Finally, at least according to Mr Findlay, Mr Gerrard told him that he and Mr Gould went back a long way and that he could get Mr Gould a “big fuck off job” at Dechert one day. I have to say that I think this is the sort of remark which Mr Gerrard might very well have made. (For his part, in his WS, Mr Gould said that Mr Gerrard had never said to him that he could be sure of a “big fuck off job” at Dechert, which was not challenged. However, that is not to the point in this context.)

I think Mr Gould and Mr Gerrard were closer than both were prepared to admit, and this is reflected in some of the later DCs.

I have already referred to the settlements in certain cases which were the subject of criticism (see paragraphs 290-293 above). But Mr Alderman’s general approach to dealing with existing or potential cases is highly pertinent here, in particular his apparent preference for dealing with matters in a highly informal way.

Sir David agreed that Mr Alderman was known to like informal “fireside chats” with company representatives or their lawyers who might be or were already the subject of the SFO’s attentions and which Sir David said was “dangerous”. When he took over, he in fact requested a list of cases which “might be affected by discussions with Mr Alderman”. He accepted as true that Mr Alderman’s own records were “inconsistent, incomplete and poorly kept such that it was extremely challenging to find information”.

Mr Mallela, another witness called by the SFO, said that “amongst the legal community there was a sense that if you couldn’t get what you wanted from the case team you would then open a parallel channel of communication to Mr Alderman”, and that he had not been consulted on the BAE settlement when he was working on that case. Mr Milford, for his part, said that Mr Alderman conducted himself in an “erratic way” and took “erratic decisions”. Often this was done “without people being involved in the cases and leaving them essentially high and dry as they tried to progress their work”. Also, when Mr McCarthy was asked in 2013 about the whereabouts of the Beige Notebook, and he was taken to his first notebook, he referred to the note of a discussion he had with Mr Alderman where the latter decided to go down the road of a civil settlement although there was good evidence for a prosecution. Mr McCarthy did not agree with that decision and when he asked Mr Alderman to write a decision note about it, Mr Alderman refused.

This general approach of Mr Alderman also featured in the CPS Report referred to above which observed (at paragraphs 8.5-8.8) that:

“Civil recovery consent orders in cases settled before April 2012 [when Mr Alderman retired] are not disclosable, due to a provision in the orders themselves…The result is a concerning lack of transparency, and stakeholders… raise the suspicion that corporate bodies have been allowed to escape criminal justice on acceptance of a financial penalty. Cases such as Mabey & Johnson and BAE Systems have been criticised for this…there are few accessible records of the negotiation and decision-making process…

[S]ome [SFO staff] have criticised the disinclination of those making the decisions in the past, within the SFO, to refer to case investigation teams, and consider the strategy in light of all the evidence…There is clear reputational risk to this, and it has served to undermine staff confidence.”

There is no doubt an extent to which the 2009 Guidelines, formulated by Mr Alderman, contributed to the informality of the process at least in the sense that they promoted the idea of a SR, leading to a settlement which would avoid the need for a criminal investigation or prosecution. But that did not mandate the failure to take proper notes, organise properly structured meetings or act in a generally transparent way both internally and externally.

ENRC contends that all of the above would have combined to make Mr Alderman strive to obtain a “quick win” if he could, prior to his departure which was known to be in April 2012. It is said that this would have been firmly in mind by July 2011. I am not sure that I would go quite that far; it would probably be unrealistic, even on the basis of a speedy SR (as indeed matters proved here). On the other hand, I am sure that he would want to be seen to be acting as proactively as possible with potential new targets, of which ENRC was one. This is especially so given the adverse publicity it already had engendered.

It is true that Mr Gould said that he had received an instruction from Mr Alderman to reach a civil recovery settlement on ENRC. I can follow that, insofar as this would have been Mr Alderman’s clear preference rather than to undertake a criminal investigation or prosecution. But again, it is unclear how such a settlement was to be reached in short order and absent a proper evidential foundation for the SFO. Indeed, if it is really suggested that Mr Alderman both wanted a very quick settlement for his own purposes, and yet wanted to assist Mr Gerrard to bring about a lengthy investigation generating huge fees, albeit stopping short of a criminal investigation, these are somewhat conflicting aims.

But what I think is much more relevant and telling from all of the above is that Mr Alderman was someone whose approach to observing proper, indeed sometimes legal, standards could be wanting to say the least. He clearly could ride roughshod over proper procedures, was prepared to be secretive or at least not transparent and I suspect felt he could probably get away with it to a large extent. He was also capable of providing misleading information. In those senses, I think it could be said that he would feel comfortable dealing with someone like Mr Gerrard whose own way of operating was similar.

What this means, in my view, is that Mr Alderman was certainly capable of engaging in the sort of behaviour alleged against him by ENRC (though perhaps not in its more extreme quasi-conspiratorial sense). That is so, especially if, from his point of view, to do so would enure to the benefit of the SFO because it would acquire a new target that would probably yield results.

The following facts are common ground. The August Leak claim is concerned with the August Article. Mr Robertson had been passed confidential ENRC documents by Mark Hollingsworth, a freelance journalist. The documents were copies of (a) WB1 (b) the HS Report (c) the PP Report and (d) the DLA Letter (“the Documents”), all accompanied by a two-page covering note (“the Covering Note”). On 10 November 2020 Mr Hollingsworth provided these documents to Quinn Emanuel Urquhart & Sullivan LLP (“QE”) who were acting for ENRC in a claim brought against him for leaking the documents.

Mr Hollingsworth had, in turn, been passed these documents by Mr Trevelyan whose company, Cyntel, was already assisting Mr Findlay who was acting through his company B2, in respect of ENRC’s investigations. Mr Trevelyan had in turn been passed the documents by Mr Findlay. There is an issue as to whether Mr Findlay wrote all or only part of the Covering Note or its contents, but that does not matter at the moment.

It is common ground that Mr Findlay had been supplied with a copy of WB1 earlier in the year.

The copies of the documents which ended up with Mr Robertson bore annotations as follows:

While Dechert accepted that at least some of the vertical lines in the HS Report were indeed Mr Gerrard’s, he himself said in evidence that the lines he would put on would be on the right-hand side of a page (not the left), but that does not square with Dechert’s original position. As for the PP Report and the DLA Letter Dechert’s position in correspondence was that Mr Gerrard thought that the lines were not his but could not be sure. But since they appear to be of the same kind as those in the HS Report it is safe to assume that they are his. Moreover, there are other copies of these documents in the possession of others which do not bear those markings. On any view, it is Dechert’s case that those three documents which came into the possession of Mr Findlay somehow and which were later transferred down the line to Mr Robertson had come from Mr Gerrard to begin with.

At this point, the factual accounts diverged. ENRC’s case relies on the evidence of Mr Findlay and Mr Trevelyan and other materials (including what it says are the clear deficiencies in Mr Gerrard’s contrary account) and is that Mr Gerrard passed the documents (excluding the Covering Note) to Mr Findlay for the express purpose of having them leaked to The Times.

Dechert’s case is that Mr Gerrard did no such thing and the leak was instigated by Mr Findlay himself. Moreover, there is a clear (and innocent) explanation for how Mr Findlay came to be in possession of copies of the HS Report and the PP Report which had emanated from Mr Gerrard. There is, however, no clear explanation advanced as how he came to be in possession of the DLA Letter (see below).

ENRC’s case rests essentially on (a) the evidence of Mr Findlay and Mr Trevelyan, (b) inferences from a number of documents, (c) what ENRC says can be drawn from Mr Gerrard’s own evidence about the August Leak and (d) broader matters concerning Mr Gerrard.

On 30 January 2018 ENRC issued proceedings against Mr Findlay, alleging that he had passed the Documents to Mr Trevelyan who then passed them as described above. ENRC advanced no positive case as to how Mr Findlay had obtained the Documents. The essence of the claim was breach of confidence. It is not clear how much, if any, pre-action communication there was. At this stage, the extant 2017 claim against Dechert did not allege that Mr Gerrard had instigated the August Leak.

Mr Findlay’s solicitors filed an Acknowledgement of Service on 7 February 2018. Shortly afterwards, on 19 February 2018 Mr Findlay entered into a Settlement Agreement with ENRC by which, first, the claim against him was discontinued with no order as to costs. Second, the Settlement Agreement went on to provide for the delivery of services to ENRC by Mr Findlay over the period of the SFO investigation, including the bringing of any charges against ENRC. The services included having meetings, giving advice, producing signed WSs and giving evidence in court. In return, Mr Findlay would be paid £210,000 for the first three months and then a monthly retainer of £12,000 plus expenses. The Settlement Agreement was signed on behalf of ENRC by Mr Vulis. It was later varied so that Mr Findlay would receive payments grossed up to include his tax liability thereon. In neither of his WSs dated 11 December 2020 and 20 February 2021 filed for this trial did Mr Findlay deign to say how much in total he had by then received from ENRC pursuant to the Settlement Agreement. In fact, and as at 24 May 2021, it was £1,145,484.

Two days after making the original Settlement Agreement, Mr Findlay produced a WS for use in the 2017 claim. This was done in the presence of ENRC’s solicitors and his own solicitors. It was obviously done at some speed and without reference to many of the relevant documents which emerged on disclosure only later.

In it, he stated that while he had got on with Mr Gerrard to begin with, he later felt that he was being manipulated by him. He said that Mr Gerrard had expressed to him his desire to “kick-start” the ENRC investigation and he wanted to turn the heat up by leaking sensitive information to the press. He wanted Mr Findlay’s help to get an article into The Times for this purpose. It had been The Times which had produced the June Article. Mr Trevelyan said that he could use the same intermediate journalist (not disclosed to Mr Findlay but in fact Mr Hollingsworth) who had been involved in the investigation into the June Leak. Mr Gerrard said he would provide two lawyers’ reports (i.e. the HS and the PP Reports), WB1 and a letter from DLA Piper. Mr Findlay then collected these documents in a sealed envelope at the beginning of August from Dechert’s reception. He met Mr Trevelyan in a nearby park and passed the envelope to him without opening it.

He went on to say that following publication of the article on 9 August, he was having lunch with Mr Trevelyan at the Chelsea Brasserie. Mr Gerrard joined them for coffee. As he approached the table Mr Findlay recalled Mr Gerrard rubbing his hands and saying “right boys, I’m in rape mode”. He said that the SFO had now written to ENRC because of the August Article printed the day before, that the key people from his team at DLA were now at Dechert and he was going to “screw these fuckers for 25 million”.

Mr Findlay says that he was shocked by this and felt he had been played. His relationship with Mr Gerrard deteriorated subsequently and Mr Findlay tried to protect ENRC from Mr Gerrard’s “exploitative tactics”. Much of the rest of this WS is taken up with supporting the criticisms of Mr Gerrard’s conduct and ways of working which ENRC alleged against him in the 2017 Action.

Mr Findlay went on to say that he was the author of WB2 (this is dealt with in detail at paragraphs 1485-1504 below). He said he pretended that the letter was based on a single conversation with Mr Gerrard one evening to fortify the allegations, but in fact there were a number of conversations, which he had recorded (unbeknown to Mr Gerrard). Equally, he had not recorded a single conversation but had recorded a number of them. He accepted that he may have embellished some aspects of WB2, but stood by all of the core allegations therein. The reference to Mr Gerrard as a “colleague” was to disguise Mr Findlay’s identity.

Following the signing of Mr Findlay’s WS on 17 May 2018, ENRC amended its Particulars of Claim to allege that Mr Gerrard had instigated the August Leak.

In Mr Findlay’s WS dated 11 December 2020, his account of what happened at the Chelsea Brasserie was broadly the same. However it differed from his 2018 WS in certain significant respects. Mr Findlay said that he was correcting and revising his earlier WS as a result of seeing a number of documents. He now said that the first discussions about a leak (instigated by Mr Gerrard) had followed an email sent by Mr Gerrard to Mr Findlay dated 8 June 2011 shortly after publication of the June Article. This read as follows:

“Think we have another very interesting option which may have been staring us in the face. Will not explore it here nor over the mobile. Will call when I get back to the office.

Times, page 35. Explosive.”

Mr Findlay could not recall receiving that email but said that it showed Mr Gerrard making a reference to what in fact was going to be the August Leak. Mr Findlay went on to say that Mr Gerrard gave him final details about the material to be leaked over dinner at the Adam Street Members Club on 5 July. Mr Trevelyan was going to meet his contact the following day and so Mr Gerrard and Mr Findlay wanted to discuss what documents would be passed over so that Mr Trevelyan could inform his contact. The documents concerned were as already described. Mr Findlay already had a copy of WB1, as already noted. But he had not seen the HS or PP Reports or the DLA Letter. Mr Gerrard wanted Mr Findlay to be “bloody careful”-i.e. that the leak could not be traced back to Mr Gerrard. Mr Findlay later prepared a note for Mr Trevelyan to brief the journalist; it was sent to Mr Trevelyan’s “dead letterbox” which in fact was a “Drafts” folder in an email account to which they both had access but which would not itself leave any email trail. From his credit card records, Mr Findlay said that he had lunch with Mr Gerrard at Shaw’s Booksellers directly after Mr Findlay had landed at City Airport having flown in from his home in Switzerland. It was here that Mr Gerrard handed Mr Findlay the Documents in the envelope. He took it to his London home. He later saw members of the investigation team who were going to Kazakhstan and Mr Trevelyan was also there. He agreed to meet Mr Trevelyan the following day to hand over the documents. They both had dinner together that night at a hotel at Heathrow airport. They then met on the following day, 13 July, at around noon, in Green Park whereupon Mr Findlay handed over the envelope to Mr Trevelyan. He then had lunch with Mr Gerrard at Franco’s later the same day and told him that the envelope and been delivered and then returned to Switzerland on 14 July.

So, the date and mode of delivery of the Documents to Mr Findlay by Mr Gerrard has changed. Mr Findlay’s account of the Chelsea Brasserie encounter is, however, more or less the same. But he added this:

“56.

I remember that in the days that followed this meeting, Mr Gerrard and I had a furious argument, I believe outside ENRC’s offices, during which he ranted and swore at me repeatedly. Mr Gerrard told me that there were distinctive notes and marks on pages of the documents that had been leaked to the press that could have identified him as the source of the leak. Mr Gerrard explained that he had “worked overtime” to “sanitise” (or words to that effect) the copies of the leaked documents in Dechert’s possession by removing these notes and marks. I remember saying to him “what the fuck do you think we were up to Neil?” (or words to that effect). I did not understand why Mr Gerrard was so agitated and angry at me as, when I had given Mr Trevelyan the envelope Mr Gerrard had provided me with, I had simply executed the plan Mr Gerrard and I had agreed on.

As before, Mr Findlay says that he wrote WB2 in July 2012. However he now said that certain other parts were inaccurate. He also had not in fact instructed a firm of French lawyers, and also he had no basis for thinking that insider information had been provided to Mr Gerrard with the tacit agreement of Sir David and Mr Grieve.

Mr Findlay regretted making these false allegations and said that they were “misguided”, but they were done to protect his identity and would lead to the SFO investigating the allegations.

As for Mr Findlay’s oral evidence, there are a number of pertinent matters. First, on the question of the Chelsea Brasserie meeting, he maintained his account but added that what Mr Gerrard said had set off two “truth bombs” in his mind. First, that the August Leak was not somehow planned in the best ultimate interests of ENRC. Rather it was simply Mr Gerrard’s greed. Second, since the August Article came out the day before and already the SFO Letter had been written, the SFO itself must have been forewarned of the August Leak and its contents. And this demonstrated to Mr Findlay that the SFO and Mr Gerrard were working in concert against ENRC. He felt that everything had now changed so far as his relationship with Mr Gerrard was concerned. Mr Findlay also said that his sending of WB2 was in part due to revenge, and in part an attempt to stop Mr Gerrard dealing improperly with the SFO and also in part to save Mr Gerrard from himself; this was because even then, Mr Findlay had a residual personal affection for him even though he could be a “beast” at work.

A further matter concerned the sending of a recording of a conversation between Mr Gerrard and Mr Findlay to Mr Trevelyan in early 2013. The recording had been edited so as to remove Mr Findlay’s voice. Mr Findlay said that Mr Trevelyan had told him that a journalist had wanted additional material on Mr Gerrard and Mr Trevelyan kept badgering Mr Findlay to provide it and eventually persuaded Mr Findlay to pass over the recording. I think that this is a disingenuous account on the part of Mr Findlay who had no obligations to Mr Trevelyan. I suspect he agreed to hand it over for a price. I note that Mr Findlay said in evidence that in handing over the recording to Mr Trevelyan he told the latter to be “bloody careful” which was the same expression he said had been used by Mr Gerrard at their dinner on 5 July.

Mr Findlay said that paragraphs 1 and 2 of the Covering Note came from Mr Findlay’s original briefing note to Mr Trevelyan, but not the rest of it. It is a fact that if Mr Findlay had written all of the Covering Note, then, because of what was said on the first page especially with regard to “personal annotations” on some pages, it would follow that he had seen the Documents. Mr Findlay does not say that Mr Gerrard told him of any of the annotations at the time although, of course, that came up later according to Mr Findlay, as set out in paragraph 56 of his WS.

It is not possible to come to a concluded view about the truth of Mr Findlay’s evidence on the key points of the August Leak unless the other witness and documentary evidence is considered but the following at least can be said at this stage: Mr Findlay was in my view capable of lying when it suited him; as he accepted he had done in relation to WB2. Second, he had a clear animus towards Mr Gerrard certainly by July 2012 and probably much earlier. Third, he himself would be prepared to leak if he could gain from it; that is, in effect, what he did in January 2013. Fourth, he was capable of being tempted into giving a false account that implicated Mr Gerrard because of the money he was receiving from ENRC even if sometimes he had to work very hard to receive it.

Mr Trevelyan, too, signed an agreement with ENRC some years after the events in question. Here, it was 21 September 2017. In exchange for providing services in relation to the SFO investigation, Mr Trevelyan was engaged at a rate of £300 per hour, with £15,000 paid on account of the start. In practice he has been paid £15,000 per month. In addition, he made a further agreement with ENRC on 14 February 2019, pursuant to which he has been receiving £20,000 per month.

Mr Trevelyan is no stranger to leaking. As is set out in two other separate claims made by ENRC against Ake-Jean Qajygeldin (a former Prime Minister of Kazakhstan) and Mr Hollingsworth, Mr Trevelyan was admittedly involved in supplying confidential ENRC information to the former, as from 2012 and to the latter, as from 2010.

Mr Trevelyan’s WS recounts that he was able, through Mr Hollingsworth, to get the information that it was SPJ who had leaked the information that led to the June Article, in exchange for the payment of £5,000. At around this time, Mr Findlay had told him that Mr Gerrard wanted to place material in the press to “kickstart the investigation”. He agreed to ask his same contact (i.e. Mr Hollingsworth) if he could get material published in The Times. Later, Mr Hollingsworth said that he could assist. Mr Trevelyan went on to say that while he gave the Covering Note to Mr Hollingsworth, it would have been provided to him in its entirety earlier on by Mr Findlay via the dead letterbox. He agreed with Mr Findlay’s evidence that shortly after their dinner at the hotel at Heathrow, they met at Green Park and he received the envelope from Mr Findlay and then passed it to Mr Hollingsworth later the same day.

At paragraphs 37 and 38 of his WS, Mr Trevelyan gives an account of events at the Chelsea Brasserie in materially the same terms as Mr Findlay, including the specific reference to “rape mode” and obtaining up to £25 million in fees.

His oral evidence maintained his account set out above. He expressly denied writing the Covering Note and agreed that whoever wrote it must have had sight of the Documents.

As to WB2, he said in evidence that he had not been involved in it. He only found out about it in January 2013 when Mr Findlay told him he had a whistleblower letter which had been sent to the SFO from someone at Dechert. Mr Trevelyan was keen to provide it to Mr Hollingsworth who was apparently writing an article about Mr Gerrard. Mr Trevelyan obtained a copy from Mr Findlay and sold it to K2, a company run by someone called Charles Carr, for £20,000. That was in addition to providing a copy of WB2 to Mr Hollingsworth. He also gave to Mr Hollingsworth a copy of the tape-recording with Mr Findlay’s voice left off. In fact, Mr Hollingsworth then sold WB2 to K2 again, as it were, for £2,000.

In cross-examination, it was not actually put to Mr Trevelyan that, contrary to his WS, Mr Findlay had not told him that Mr Gerrard had initiated the August Leak. Rather it was put to him (and he agreed) that his only knowledge of Mr Gerrard’s involvement in all of this came from Mr Findlay.

Mr Gerrard’s account of matters has, too, changed over time.

First, as to the “explosive” email, Mr Gerrard did not originally advance a positive case as to the meaning of the first part of the email, save to doubt that it had anything to do with The August Article. The email had first been referred to originally in paragraph 59B of the Re-Amended Particulars of Claim and the original response at paragraph 147B of the Re-Amended Defence merely stated that it was denied that the email was sent “upon reading” (i.e. as a result of) the June Article. However, paragraph 147B was then amended in the Re-Re-Amended Defence to say that:

“It had occurred to Mr Gerrard when reading The Times article that the investigation into the source of the leaks could be approached from a different angle by searching for who at ENRC had been sent documents containing the phrases that had been directly quoted in the article. Mr Gerrard wanted to discuss this idea with Mr Findlay.”

That plea was then reflected in Mr Gerrard’s second WS of 26 February 2021.

Second, as to how Mr Findlay had ended up with the HS and PP Reports, Mr Gerrard in his first WS suggested at paragraph 101 that for the purposes of Mr Findlay’s work, “Dechert were routinely providing Mr Findlay with information material and documents”, in other words, he would have received those reports as part of that work.

However, in the Re-Amended Defence dated 19 February 2021 and in his following second WS, Mr Gerrard said that he had in fact given the reports to Mr Findlay on 14 June 2011 and that emails from his PA, Ms Adams, support this.

Third, Mr Gerrard had consistently denied being at the Chelsea Brasserie at all on 10 August 2011. He had said so in terms in earlier proceedings (RAK v Azima [2020] EWHC 1686). However, in the course of the cross-examination of Mr Findlay it was suggested on behalf of Dechert for the first time that (a) Mr Gerrard did go to the Chelsea Brasserie on 10 August but (b) this was for the purpose of remonstrating with Mr Findlay about his failure to get all the data that was needed for the AC meeting which was going to take place later that day. However, he continued to deny using the words alleged by Mr Findlay and Mr Trevelyan or anything like them. This new point has become known as the “Row [in the sense of argument] Allegation”. It was not presaged in either of Mr Gerrard’s WSs or in Dechert’s opening and only emerged during the trial.

I now turn to consider the evidence in detail.

On the face of it, it is very odd that Mr Gerrard should have been so secretive about his idea of searching for phrases - if that is what it was. He could simply have explained to Mr Findlay there and then. And to the extent that it was suggested that the actual leaker for the June Article (whoever that was) might be put on notice somehow if Mr Gerrard made explicit his suggestion in the email, there are many other emails dealing with the investigation of that leak and searches for keywords and phrases which were completely open.

Second, a review of the contemporary emails gives no support to the notion that Mr Gerrard had the idea for the phrase searches. Rather they show that it was the idea of Mr Jobson, the Head of ENRC’s IT.

Mr Jobson certainly had that idea by 23 June because on that day he asked Ms Penrice to send him a copy of the email which she had mentioned and which he said contained the leaked information, because “I would like to search on the exact words trace it through our system.” Mr Jobson then took this forward with Mr Findlay, in his email of 23 June. Here, he said this:

“yes the list of names is fine.…In addition please could you do a separate search on the email database image from early June on the following phrases (across any inbox not just the names listed). These phrases are taken from the leaked email and I want to trace who may have had or transmitted content of this email. For this search, the date range can be restricted to 1st May to 8^th June. The phrases are

I think it would be very, very unhelpful

Just to be crystal-clear

What we can’t be is a hybrid

that I do not believe that he should become chairman”

By 29 June, Cyntel had produced some results. See the email from Simon Lewis of that date. The point is that the list of senders and recipients of the original email would then give a list of possible leakers. That email was then copied by Mr Findlay to Mr Gerrard.

Mr Gerrard in turn emailed on 30 June to say that the author of the original leaked email was SPJ and that he did not recognise the names of all the recipients identified by Mr Lewis. On 1 July 2011, Mr Jobson responded to Mr Findlay who had forwarded the email from Mr Lewis and added some further information. Mr Jobson gave a list of further searches which he wanted undertaking concerning the original email and phrases within it.

On the face of those documents, the initiator of the phrase search was Mr Jobson. Dechert’s riposte to the apparent lack of any initiative from Mr Gerrard is to say that when forwarding Mr Jobson’s email to him on 23 June, Mr Findlay said that it was referring to “Operation Trojan Horse”. Dechert contended that this reference shows that first the phrase search had been given a distinct name (as opposed to Operation Judas) and that this new project was already in existence at least as a plan. However, there appears to be no prior reference to Trojan Horse in the contemporaneous documents, although Mr Findlay was inclined to agree in evidence that this expression did refer specifically to the search for phrases. This was by reference to what he had said when forwarding the 23 June email from Mr Jobson and also what he said in an email the following day to Mr Trevelyan where he made reference to Operation Trojan Horse, Operation Judas and Operation Judas 2. However, that does not really assist at all on who initiated the phrase search. Insofar as the 24 June email suggested that Operation Trojan Horse should be finished “today” that does not actually sound right because Mr Lewis’s email back to Mr Findlay on the results of that search was only sent on 29 June.

Dechert’s case is effectively that Mr Gerrard thought of the phrase search idea and communicated it to Mr Findlay on or around 8 June 2011, perhaps on one of the telephone calls, but then it was all put on ice because of, among other things, the impending AC meeting on 14 June and Mr Findlay’s holiday in Scotland. However, Mr Gerrard’s WSs did not refer to any delay of this kind in the phrase search (cf paragraphs 80 and 81 of Dechert’s Closing). Further, in cross-examination, Mr Gerrard merely said that the search took a while but that was because of Mr Jobson’s inefficiencies (Day 18/58).

I agree that it is true that in relation to Mr Jobson’s email of 22 June which covered search terms and media representatives who may have been in contact with ENRC, Mr Findlay forwarded it to Mr Trevelyan by reference to “search terms for leak enquiry (Judas)”. This was said to show that this was the “original” leak enquiry search, distinct from Operation Trojan Horse. Again, that hardly demonstrates that the phrase search was already in existence, as an idea from Mr Gerrard, before then.

Dechert also placed reliance on Mr Findlay’s email to Ms Black on 24 July 2011 which stated that “we have the files for Operation Judas and Operation Trojan Horse on which Neil is instructed on”. But again, this hardly shows Mr Gerrard had the idea in the first place.

It is also important to recall that the suggestion that this is the meaning of the “explosive” email was something that only emerged in Mr Gerrard’s second WS in February 2021.

In my judgment there is no basis for this suggestion and I think it is a construct on the part of Mr Gerrard to give an innocent explanation to the email relied upon by Mr Findlay. Since no other explanation for the words used has been put forward, it remains the case that the language and secrecy accompanying whatever Mr Gerrard was talking about is consistent with the idea of a leak which, by definition, could hardly be broadcast within ENRC or indeed Dechert.

It is common ground that Mr Gerrard was with Mr Findlay in Dechert’s offices in the morning of 14 June. They were due to fly to Zurich to see Mr Ammann and return to London in the evening. Mr Findlay was due to go on holiday in Scotland the following day. On 13 June, Ms Adams emailed Dechert’s general office asking them to “book taxi for Neil Gerrard for tomorrow at 11:15am from the office taking him to London City Airport”. The following day he sent a further email as follows:

“Can I also book a return taxi for Neil from City airport please. He will be landing at 21.05 this evening. He will want taking to SE1 and his client will then go on to SW11.

I also have a package for the driver to collect from me to give to Neil when picking him up. Please can you let me know what time you need this ready for?”

The office responded to say that the taxi had been booked and “you could let us know when the package is ready and I can leave it at reception, the driver will collect from there this evening…”. Ms Adams responded that “as the document is highly confidential can I leave it on reception at 6pm on my way home?”. The office replied that this could be done and that the package should be left at the Dechert reception on the third floor.

There are then two manuscript notes from the office referring to the booking of the taxi.

There are also some manuscript notes made by Ms Adams. A note dated 14 June makes reference to the trip to Zürich. After a reference to 15 June and on the following page there are in manuscript the words:

“HS + Peter + P report Cameron SW11”

with an uneven line through them.

The hearsay statement from Ms Adams in its material parts states as follows: she explains that her reference to “client” in the email was just a shorthand way of saying that it was someone not from Dechert. She said it was not unusual for her to arrange for documents to be taken to Mr Gerrard in a car that had been booked for him. She would put the documents in a sealed envelope, particularly if they were “highly confidential” as was the case here. The drivers knew Mr Gerrard. She would not have given the documents to a driver who was unfamiliar with this practice. Her email here would have been prompted by a request from Mr Gerrard and it was not unusual for him to rush from a meeting to a taxi and forget to take documents with him. As for the manuscript entry crossed out, she had no specific recollection of it. She said that this note and its place in her notebook was likely to have been the result of Mr Gerrard calling her after he had left the office and asking her to send him the HS and PP reports. She said she would have made certain that it was those specific documents and no others which she left for the driver in a sealed envelope. She thought that the second part of her note which referred to “Cameron SW11” would have related to Mr Gerrard asking her to arrange for Mr Findlay to be dropped off in SW11 after being collected from the airport.

Dechert disclosed Ms Adams’ notebook in October 2019 and the emails referring to the taxi booking in November 2020, the latter in close proximity to Mr Gerrard’s first WS. As the documents were Dechert documents to begin with, Mr Gerrard would presumably have had access to them for some time prior to their disclosure. This makes it very odd that the first WS made no reference to the emails of 13 and 14 June at all. I do not agree with Dechert that this delay in making the allegation is irrelevant. It is capable of supporting ENRC’s case that it was late because it was a late attempt to try and explain how it was that the HS and PP reports got into Mr Findlay’s hands innocently.

Further, if this incident was (still) the subject of personal recollection by Mr Gerrard (albeit assisted by the documents) at trial, as he says it was, then it is also very odd that he failed to mention it to his client after publication of the August Article, which was much closer in time to it. On his case, it would clearly have pointed to Mr Findlay as possibly having made the unauthorised use of the documents he had been given a little under two months earlier, and thus being the perpetrator of the leak.

There are also a number of problems with why Mr Gerrard should have thought it necessary to give the two reports to Mr Findlay. The latter’s role, formally at least, was limited to collecting data relevant to the underlying investigations and his assistance with the June Leak enquiry. Dechert says that the reports were necessary for Mr Findlay for when he would attend the AC on 21 June, following his return from holiday. In fact, while he did attend the second part of that meeting, the reports were discussed only in the first part from which he was excluded. Moreover, the reports had previously been regarded by ENRC as highly sensitive and confidential and yet on Dechert’s case were now to accompany Mr Findlay on a walking holiday.

Further, on the face of it, Mr Gerrard gave Mr Findlay his personal (and only) annotated copies. On Mr Gerrard’s case, he never asked for them back at any stage. This is surprising not least because Mr Gerrard was in that part of the AC meeting that discussed the reports. Dechert agrees that there were no other annotated copies retained - or at least, on their searches for the purposes of disclosure, none were found. Indeed, if Mr Findlay really needed the reports they could have been emailed to him on a confidential basis. Other documents, including reports, had been emailed to Mr Findlay by Ms Adams.

Yet further, hard copies could have been given to Mr Findlay by Mr Gerrard before they went to the airport on 14 June and while he was still at Dechert’s office or indeed when they were next due to meet on 20 June.

The alternative is that the reports were needed by Mr Gerrard for his own purposes. That is reflected in the wording of Ms Adams’ email saying that the documents should go to Mr Gerrard. At one point in cross-examination, Mr Gerrard accepted that a likely explanation was that he needed the reports himself for an FRA meeting the following day although later he said that he would not have wanted to read the reports late at night. Perhaps, though, he could have read them early the following morning. FRA was certainly interested in the RTS issue which had been addressed in the HS report, as can be seen from the email from Mr Lawler to Mr Gerrard dated 24 May 2011 and the following correspondence. In that context Mr Gerrard actually asked Ms Williams at Dechert to look into the point by reference to the HS report itself.

The reports going to Mr Gerrard would make much more sense because he accepted that he used both reports in the period between 14 and 21 June.

There are other difficulties with Mr Gerrard’s account:

One then has to consider Ms Adams’ note where there is a specific reference to the reports and then to “Cameron SW11”. She herself did not suggest that the reference to Mr Findlay had anything to do with the two reports, rather it was referring to the instructions for the taxi to take him home. Dechert suggests that the fact that the reference to the reports is struck through means that it was a task completed which would then somehow support Mr Gerrard’s account. However a review of a number of other pages suggests the opposite. There are items which are ticked which presumably suggest points which have been actioned and struck through items which chronologically would be unperformed or cancelled. Ms Adams own hearsay statement does not deal with this aspect of the matter. On any view, this piece of evidence does not assist Dechert.

Finally, the Taxi Allegation does not explain how Mr Findlay obtained an annotated copy of the DLA Letter which ended up in his hands. He does not suggest it was passed to the latter on 14 June. As to that, Dechert postulates that Mr Findlay may have had his own copy of the DLA Letter, perhaps because he had helped Mr Gerrard to draft it. But Mr Gerrard’s second WS does not suggest this and he denied it in cross-examination as did Mr Findlay. Moreover, while that might possibly leave Mr Findlay in possession of a clean draft or copy of the DLA Letter it could not explain why he ended up with one which had been annotated.

There is documentary evidence showing that Mr Gerrard was looking for a copy of the DLA Letter - see the email from Ms Adams to Ms Coppens dated 30 June. While Mr Gerrard says that it would make no sense to publicise an attempted leaking of this document, that is beside the point since the request transmitted through Ms Adams here, on the face of it, was entirely innocent. As it happens, this access was sought a few days prior to the Adam Street dinner. Mr Findlay’s obtaining of the annotated DLA Letter has not been satisfactorily explained. It is, however, consistent with Mr Gerrard giving it to him as part of the material for the August Leak.

Overall, I do not accept the Taxi Allegation as posited by Dechert. Since there is no alternative explanation, this then means that the only credible account is that given by Mr Findlay as to how and when he received the Documents.

On 26 June 2021, ENRC’s solicitors conducted a physical inspection of the originals of files that Dechert had copied and provided to Fulcrum Chambers in May or June 2013. This was pursuant to permission given by Dechert only recently. Previously ENRC’s solicitors had received copies of the files which had themselves been copied to Fulcrum Chambers.

In conducting this inspection a post-it note was found, bearing the manuscript words “should this be destroyed”. The post-it note was attached to a copy of the PP report which itself was in a correspondence file belonging to Ms Coppens. That file had been started while she was at DLA and was transferred to Dechert ahead of her own transfer there, but after Mr Gerrard’s. It is not seriously in dispute that the handwriting on the note was that of Ms Adams. An image of the note is at paragraph 370 of ENRC’s Closing.

The question is why this note was made. Ms Coppens said that she might have got rid of documents when she moved firm, but since her file went ahead of her this could not be the explanation. For his part, Mr Gerrard could not think of why a legal secretary would make such a note.

ENRC says that the obvious inference is that Mr Gerrard wanted to have destroyed his original copy of the PP (or HS) report with his annotations on, that had itself been copied and given to Mr Findlay for the purpose of the August Leak. The note had originally been attached to that copy of his and Mr Gerrard, or someone acting on his behalf, had answered the query by saying that this copy should indeed be destroyed. In cross-examination the suggestion put to Mr Gerrard was that if his own copy of the PP or HS report was retained, then it could be seen to have the same annotations as the version provided to Mr Findlay. To avoid this, he wanted it destroyed. If the copy was not there, then in response to any enquiry about the August Leak, it could legitimately be suggested that someone must have taken it i.e. someone other than Mr Gerrard. Mr Gerrard denied this suggestion.

ENRC’s theory here is not an impossible one, but I do consider it somewhat speculative. Unfortunately, the post-it note was not dealt with in Ms Adams’ WS (served on 26 February 2021) and of course she did not give evidence. I am also not sure how this fits in with the June 2013 Material allegation against Mr Gerrard (see paragraphs 1464-1481 below) and the argument about the redactions which has relevance to the August Leak (see paragraph 413 below).

In the end, I consider that I am not really assisted by the post-it note.

Mr Gerrard’s case now is that he did indeed see Mr Findlay and Mr Trevelyan at the Chelsea Brasserie on 10 August, a fact which ENRC had always maintained but which, until Day 15 of the trial, Mr Gerrard had always denied. This iteration of his account was therefore so late that it does not have the benefit of any explanation of its genesis prior to trial.

There was no request prior to the start of Mr Gerrard’s evidence for permission to elicit the allegation by means of some extra questions in examination in chief or a short supplemental WS. So it was left to ENRC to explore it in cross-examination. The core of the allegation is that by August 2011 Mr Findlay had failed to deliver on his promises over timely data collection and now he and Mr Gerrard were facing a critical juncture in the form of the AC meeting later that day.

In oral evidence Mr Gerrard said at one point that the conversation at the Chelsea Brasserie, when he got there, was largely with Mr Trevelyan, at Mr Findlay’s request, and that there was no altercation. He could not really explain the inconsistency with the suggestion of a row.

Further, the notion that there was to be an impending grilling of Mr Gerrard and Mr Findlay at the AC meeting by Mr Ammann, was not put to the latter. Much was made in Dechert’s closing oral and written submissions of a stream of emails said to lead up to something of a confrontation on 10 August. While Mr Findlay was understandably being pushed to obtain relevant data, there is no sign of difficulties between Mr Gerrard and himself as a result. In fact, on 28 July Mr Findlay told Mr Gerrard that he would not be able to get the education material (this refers to the “Education Allegation” addressed in paragraphs 959-960 below) before the AC which Mr Gerrard had asked him to do, while recognising that it was “Probably a tall order in the timeframe”. Mr Gerrard’s reply was “Rodger”.

It is correct that Mr Gerrard was trying to get hold of Mr Findlay on 10 August in relation to the presentations to be given to the AC that day. However, the contemporaneous documents do not reveal concerns over the documentary review side of things. The AC meeting did not appear to criticise Mr Findlay or B2. Rather, Mr Gerrard said that the general lack of progress was because of SSGPO’s obstruction and falsification of documents.

Next, Mr Findlay did in fact attend the second part of the AC meeting. It is not the case that he stayed away because of the supposed argument over his performance, which is how the matter was put to him in cross-examination. He did not attend the first part of the AC meeting because Mr Gerrard and SPJ told Mr Ammann and that they wanted it in private. Moreover, later documents show Mr Gerrard and Mr Findlay’s relationship at that stage to be cordial.

However, Dechert says that Mr Gerrard’s account is given crucial support by a recording made by Mr Findlay of a telephone conversation between them in late January 2012 (perhaps 27 January), as already stated, unbeknown to Mr Gerrard at the time.

The relevant extracts from the transcript of this call are as follows, which arose in the context of a discussion about how long it would take for Cyntel to do the OCR’ing of the relevant documents from Kazakhstan and the work going to FRA:

“CAMERON FINDLAY: Yeah, well, yeah, I also want to make sure that, you know, yeah. I would like to be there too for that Because I don’t want us to be blamed because the FRA can do it three weeks quicker than us.

NEIL GERRARD: It’s bit more than that mate.

CAMERON FINDLAY: No it’s not [laughs].

NEIL GERRARD: It is.

CAMERON FINDLAY: I can assure you it’s not.

NEIL GERRARD: I can assure you it is. Even by Rob’s own estimate, he was eight weeks from getting it all on. But we’ve been through this for ages, we’re not going to blame anyone. I told you that in Zurich. We’ve just got to get this over quickly, You know, this is just not what Rob does. He’s great on the imaging side, he’s been fantastic but we’ve been, we’ve known we’ve had a problem for months and months, we’ve just got to get this on. Otherwise we’re goanna end up being fucked…

CAMERON FINDLAY: You know I don’t understand where this months and months has come from because the meeting was on 6 December...

NEIL GERRARD: No, hang on. You and I fell out God knows when and…

CAMERON FINDLAY: December.

NEIL GERRARD: ...yep…and we’ve been having emails, I’ll go back, if you want me, I’ll get the emails, the constant emails and moaning we’ve had on both sides for months and months. We’ve been worrying about…

CAMERON FINDLAY: 6 December...

NEIL GERRARD: No, well before then,

CAMERON FINDLAY; No, no, the meeting took place on 6 December”,

NEIL GERRARD: No, no...which meeting was that?

CAMERON FINDLAY: ...with Simon. Simon, Caroline and Karen...

NEIL GERRARD: Which meeting was that?

CAMERON FINDLAY: In Dechert’s office.

NEIL GERRARD: No.

CAMERON FINDLAY Simon...

NEIL GERRARD; No, what about the time way before that when we had coffee?

CAMERON FINDLAY: And you said “don’t worry about it, we’ll sort it out next year”. That’s exactly your words

NEIL GERRARD: When we had coffee at Sloane Square or whatever?

CAMERON FINDLAY: Exactly, yes because Rob and I had talked about it.

NEIL GERRARD: Yeah I know, I know mate but it’s been going on for months. The concerns have been going on for months am!...

CAMERON FINDLAY: But the meeting took place on 6 December. We’ve got the email records, we’ve got the...

NEIL GERRARD: Look let’s not get..look…OK. I tell you what I’ll do, I’ll go and get the email records as well and we’ll put on record and…you know, why are we arguing about it? You know, you know that Rob can’t and his team can’t do this, we’ve got to get it done before...

CAMERON FINDLAY: No, no, no, we can’t do it to your timescale, there’s a difference. We’ve got the kit, we’ve got the technology, we just can’t do it as quickly as you want us to because at the meeting on 6 December you wanted a solution, eventually we agreed a solution which was done over Christmas, on 4 January Caroline said do the OCRing so we had to go and order the new software and we started that 10 days later...

NEIL GERRARD: You had to have an OCR .

CAMERON FINDLAY: Hey?

NEIL GERRARD: You had to have an OCR.

CAMERON FINDLAY: Well we were never told that until the 4 January.

NEIL GERRARD: . Ha, your guys are supposed to be the bloody experts! How on earth were we ever gonna get it on our system?”

Dechert says that on a correct interpretation of this conversation, both Mr Gerrard and Mr Findlay were referring to a “row” about data collection when they both had coffee in Sloane Square and that this was clearly the incident at the Chelsea Brasserie on 10 August 2011. However, taken overall, it looks as if the reference to the row was 6 December although the subject had been raised for some time before. Also, on Mr Gerrard’s oral evidence, there was no row as such. Nor do I accept that there could only have been one occasion when they had coffee, whether in Sloane Square or somewhere else. Indeed, when Mr Onslow QC opened the case for Dechert, he made a reference to this transcript but on the basis that the row was on 6 December. In fact, the reference to “next year” in the transcript makes much more sense if the date was indeed December (i.e. close to the end of the year) and not August.

So I do not think that the transcript provides the strong corroboration for Mr Gerrard’s account of the Row Allegation which is contended for.

As against all that, Mr Findlay’s and Mr Trevelyan’s account has always been the same as to what actually happened at the Chelsea Brasserie. Of course, they both could have put their heads together to invent this, although Mr Trevelyan says that they had actually fallen out themselves into 2014 and had only recently been in the same room together, on one day, when both were dealing with ENRC’s lawyers, presumably in the context of this litigation.

If Mr Gerrard’s Row Allegation is not correct, then, in my judgment, there is no alternative account of what he said other than that given by Mr Findlay and Mr Trevelyan. One then has to ask whether there is any reason not to accept their account if the Row Allegation is wrong. In my judgment, there is not. First, I have little doubt that Mr Gerrard could and did use words like “fuckers”; for example he referred in a conversation to Alstom as “fuckwits” and made repeated use of the word “fucking” in another of his calls with Mr Findlay. Again, in the meeting on 2 February 2012 with Mr Ehrensberger, Mr Hanna, Mr Prosper and Mr Larson, he referred to Mr Ehrensberger and Mr Hanna as “two fuckers” according to Mr Prosper and Mr Ehrensberger, and Mr Gerrard did not deny that he might have used language like that (see paragraphs 1057-1060 below). As for the shocking expression “I’m in rape mode”, it is so obviously appalling that one has to question whether it is really likely that a solicitor would use it, especially in a restaurant where others might overhear. For his part, in cross-examination Mr Gerrard indignantly denied it. However, I regret to say that Mr Gerrard, being the volatile character that he is, was in my view capable of saying it. Moreover, if the Row Allegation is not plausible, then the account given by Mr Findlay and Mr Trevelyan is the only other one. It could be, of course, that Mr Gerrard did say something else, but no one suggests that this is the case.

I do not consider the Row Allegation to be a plausible one.

Mr Trevelyan’s evidence is that Mr Findlay had told him that the instigator of the leak was Mr Gerrard. That Mr Findlay said as much to Mr Trevelyan was not in fact challenged. Of course, if Mr Findlay was making up the allegation, the fact that he told Mr Trevelyan is neither here nor there. Mr Trevelyan had no independent source of knowledge. But it is hard to see why Mr Findlay would make up a story to Mr Trevelyan which wrongly implicated Mr Gerrard in the leak. I suppose that Mr Findlay might have done it to somehow protect himself if it all went wrong, by telling Mr Trevelyan falsely that Mr Gerrard had instigated the leak (not that this was put to Mr Findlay). But this does not really add up because in that event, Mr Gerrard would learn that Mr Findlay was telling a false story about him at a time when they were both getting on well with each other. It would be hugely risky for Mr Findlay to say such a thing unless it was true.

A major point advanced by Dechert is that the August Leak allegation pre-supposes that Mr Gerrard would have been so foolish as to provide, ultimately to the press, documents which had his handwriting on them. I have referred above to his handwriting on the HS report. He simply would not have been so stupid and therefore this is a powerful reason to conclude that he was not the leaker.

There is force in this point. However, not as much as Dechert contends, in my view. First there are only three instances of Mr Gerrard’s actual handwriting on the HS report. While there is much underlining that I consider was his, this is obviously not as revealing as when actual words are written down. Second, I would not put it beyond Mr Gerrard that he simply forgot about his handwriting on the Documents so that he carelessly omitted to remove the markings in a further copy or find a “clean” copy to pass over. Third, on the above basis, paragraph 56 of Mr Findlay’s WS does actually make some sense. It reads as follows:

“I remember that in the days that followed this meeting, Mr Gerrard and I had a furious argument, I believe outside ENRC’s offices, during which he ranted and swore at me repeatedly. Mr Gerrard told me that there were distinctive notes and marks on pages of the documents that had been leaked to the press that could have identified him as the source of the leak. Mr Gerrard explained that he had “worked overtime” to “sanitise” (or words to that effect) the copies of the leaked documents in Dechert’s possession by removing these notes and marks. I remember saying to him “what the fuck do you think we were up to Neil?” (or words to that effect). I did not understand why Mr Gerrard was so agitated and angry at me as, when I had given Mr Trevelyan the envelope Mr Gerrard had provided me with, I had simply executed the plan Mr Gerrard and I had agreed on.”

True it is that this passage was not mentioned in Mr Findlay’s February 2018 WS. But when Mr Gerrard did discover or remember (as he must have done - see below) that his handwriting was on the HS report as leaked, he would be angry. More importantly, he might try and do something about it to protect himself. It seems that he did, because the version of the HS report sent to the SFO in June 2013 had his words on it clearly removed. It is very hard to see that anyone other than Mr Gerrard could have or had reason to redact the document in this way. This makes the evidence in paragraph 56 of Mr Findlay’s WS more plausible.

For its part, Dechert says that this addition to Mr Findlay’s evidence, not contained in his 2018 WS, shows that he was simply trying to concoct a story, designed to meet the obviously strong argument about the likelihood or otherwise of Mr Gerrard giving to Mr Findlay a document with his handwriting on it. I understand the point but disagree.

The Covering Note only emerged as a document relating to the August Leak when it came back in November 2020 with the other documents, from Mr Hollingsworth. In his WS Mr Findlay said that he had provided Mr Trevelyan with a brief note drawn up following Mr Findlay’s dinner with Mr Gerrard on 5 July 2011 at the Adam Street Members Club. This brief note was sent to Mr Trevelyan ahead of delivery of the Documents, through the dead letterbox which they both used.

In evidence, Mr Findlay said that his brief note was not the same as the Covering Note which he did not write. However, he thought that the two numbered paragraphs on the second page of the Covering Note had come from his brief note. That would mean that Mr Trevelyan had drafted the Covering Note since it was not suggested that Mr Gerrard had.

Mr Trevelyan, however, said that he did not write the Covering Note and thought that Mr Findlay had drafted it and then provided it to him via the dead letterbox ahead of receipt of the Documents. He would then have passed the Covering Note to Mr Hollingsworth probably in advance of the Documents. He was equivocal as to whether he actually read the Covering Note the time. However, he did agree that whoever wrote the Covering Note must have looked at the underlying documents.

I think the truth is that Mr Findlay wrote the whole of the Covering Note and I do not see any reason to doubt Mr Trevelyan, who was more of a conduit than Mr Findlay. Also, it is noteworthy that both parts of the Covering Note (the one that Mr Findlay said did come from him and the other that he said did not) refer to Mr Vulis as “Mr Vilus” and, as Mr Findlay accepted, the only documents in the case where that error was made came from him.

I think that Mr Findlay was probably unwilling to accept responsibility for the whole of the Covering Note because it might be suggested that such familiarity with what was going on at ENRC could suggest that he had instigated the leak himself and/or it showed that he must have read the Documents - not least because of the reference to personal annotations.

Dechert makes the point that Mr Findlay could not admit to knowledge of the annotations because, if so, he would have been bound to know that any leak would come back to Mr Gerrard which would be a disaster. I am not sure that one can assume this much. After all, on the basis either that Mr Findlay was the true instigator or that he was acting at the behest of someone else, he let the documents go, knowing of a risk that they could be traced back to Mr Gerrard who, on this analysis, was not the instigator. That would surely have been an even more rash thing to do.

I think that the truth is more prosaic. Mr Findlay did read the Documents but does not want to admit that now. He put some instructions in the Covering Note designed to minimise the risk of the source being traced back, in circumstances where Mr Gerrard had let them go out in this form. After all, on the hypothesis that Mr Gerrard had not instigated the leak but Mr Findlay had, knowing of the annotations, the logical thing in fact would have been for Mr Findlay to make a copy of the HS report at least, with the handwriting blanked out - which is in fact what happened in June 2013.

In one sense, the proof of the pudding is in the eating. Following publication of the August Article, the leak was not traced back to Mr Gerrard. The first person to be accused of the leak by ENRC was Mr Findlay himself and Mr Trevelyan must have provided some information there, since his agreement with ENRC was made previously.

Furthermore, if it was so obvious that leaking the annotated documents would have led swiftly back to Mr Gerrard, but he did not instigate the leak, then he would surely have reported back to ENRC that he had provided such documents to Mr Findlay two months earlier and that Mr Findlay himself was the prime suspect for the leak. As already noted he did not do this. He did not even, as between Mr Findlay and himself, make any enquiries. On that analysis, he simply stood by and let the leaker get away with it. Of course, Mr Gerrard might have been assumed to conclude that the instigator was SPJ but in fact there is no evidence that he confronted SPJ about this or reported his suspicion back to ENRC even though he knew that SPJ had been identified as the leaker of the June Article.

For all of those reasons, I do not consider that Dechert’s point about the unlikelihood of Mr Gerrard instigating the leak because of the annotations is by any means as strong as it has suggested.

It is not in dispute that the SFO Letter was only sent by post, sometime after around 11:30am on Wednesday 10 August. Mr Ehrensberger received it on Thursday 11 August. He told the Board about it in the course of its meeting at 12 noon that day, in these terms:

“A letter had been received from the SFO following the recent press reports on internal investigations. The letter confirmed that no action was being taken by the SFO at this time.”

Mr Ehrensberger does not suggest that he told Mr Gerrard about it until the following week, commencing 15 August. According to the documents, Mr Gerrard certainly knew about the SFO Letter by Monday 15 August because Mr Ehrensberger had asked Mr Ammann that day by email to instruct Mr Gerrard to speak to JD about it and how to address the SFO. There is also a reference to the SFO Letter in Mr Gerrard’s notebook for that day.

According to Mr Findlay, however, Mr Gerrard was aware of the sending of the SFO Letter on the day it was written, namely 10 August, because he referred to it at the Chelsea Brasserie. For his part, Mr Trevelyan did not recall Mr Gerrard mentioning the letter.

The date of Mr Gerrard’s knowledge about the SFO Letter is important. If he knew about it on 10 August, it can only be because he was tipped off by someone at the SFO that it, or at least a letter from the SFO, was going to be sent.

It is of course possible that Mr Findlay simply got this aspect of what happened at the Chelsea Brasserie wrong, mixing up when he was told about it by Mr Gerrard - which might have been some days later on 15 August. It should be remembered here that Mr Findlay, albeit unaided by the documents or at least substantial disclosure, first said that he had met Mr Gerrard at the Chelsea Brasserie “a few days” after the August Article, as opposed to the day after. It is possible that the words used by Mr Gerrard, but denied by him, were referable to the August Article alone which itself might suggest that the SFO would get involved and so the workload would significantly increase for Mr Gerrard. However, this does not strike me as realistic. If Mr Gerrard used the words, they are more consistent with knowing that the SFO was definitely swinging into action in some way which was bound to transform the landscape of his work.

On this particular point, if I was satisfied that he spoke the words alleged by Mr Findlay and Mr Trevelyan, there is no reason here not to accept that he made some reference to a letter from the SFO. That, of course, has implications for the issue of DC1 which is the next matter I address. But whether those implications run as far as a conspiracy with Mr Alderman or disclosure to Mr Alderman of all the Documents which were the subject of the August Leak, is another matter.

In reaching my conclusion I have taken into account all the various pieces of evidence along with the general features of the evidence of in particular Mr Findlay, Mr Trevelyan, and Mr Gerrard and the unreliable features of their evidence. That now extends, so far as Mr Gerrard is concerned, to the impact on his credibility of the evidence about the Depel Interview discussed above. I have also taken into account the point that for a solicitor instructed on behalf of a client to cause a leak of the kind in issue here is extremely serious conduct which it might be thought would be almost unimaginable in the case of a straightforward competent solicitor. I regret to say that I do not regard it as unimaginable in the case of Mr Gerrard. I accept that Mr Gerrard did indeed instigate the August Leak and pass the Documents to Mr Findlay for onward transmission to Mr Trevelyan and, through his contacts, ultimately to The Times, essentially in the manner alleged by Mr Findlay. In so doing, and as indicated above, I reject the arguments advanced by Dechert in relation to the “explosive” email, the Taxi Allegation, the Row Allegation and the significance of Mr Gerrard’s handwriting on the Documents.

The fact that Mr Gerrard instigated the August Leak is of considerable importance beyond that particular allegation. First, it shows that he lied continuously on this particular issue-there is no question of being mistaken. Second, it suggests that he was capable of very serious professional wrongdoing. I take that into account when I deal with all the other numerous allegations against him. On the other hand, it does not necessarily mean that in relation, for example, to each of the DCs, he would always go deliberately too far. Sometimes the way in which he communicated may be put down to his over-assertive style, his lack of preparation and/or his lack of self-control. For these reasons, each of the DCs needs to be considered carefully and objectively. After all, in many of them, what is actually said is often not in dispute; rather, it is the likely meaning and context.

Accordingly, Dechert was in breach of the Core Duty and Non-Disclosure Duty and in breach of fiduciary duty. Dechert was also in breach of the Disclosure Duty in relation to its own wrongdoing. Had Dechert complied with that duty and informed ENRC that Mr Gerrard had instigated the August Leak, Dechert would undoubtedly have been sacked on the spot. All of these breaches of duty were deliberate. They can have been nothing less, on my findings above.

There was an internal SFO meeting on 21 February 2013. This was to discuss the way forward with the investigation, as Sir David was not clear where it was going. During the meeting, Mr Milford asked what the team had been told by Mr Alderman and the previous senior team. Mr Thompson said that Mr McCall had told him that it was a “very messy case” and Mr Thompson should keep the investigation “off the books with no case drive.”

Mr McCall himself gave evidence, but could not recall anything about the “off the books” instruction.

In addition, when forwarding Mr McCarthy’s email to Mr Alderman following OM1 to say that “our tactics worked” (see paragraph 567 below), Ms Williamson said “To note on list of cases - it’s a sensitive one this”. I do not read too much into this. A possible investigation into, or engagement in, an SR process with a substantial FTSE 100 company, even one where there was considerable bad publicity, might well be regarded as sensitive.

On 16 November 2011, it was known that there was going to be OM2 on 30 November. A calendar invitation went out referring to a meeting with Mr Alderman and Mr Gerrard about ENRC. Mr Thompson thought that they may need to be more subtle if “the aim is to keep this work below the radar”.

The next day, Mr McCall emailed Ms von Dadelszen to say that Mr Alderman wanted her to be involved in “a potential new case” which needed to be “handled sensitively and needed her complete discretion”.

I think that all of this was about limiting the number of SFO employees who knew about the ENRC case at this early stage. This is possibly because of the fear of leaks or just because of what ENRC was (i.e. a FTSE 100 company). That would also explain the reference to “Project X” and it might also explain the lack of a case drive at least initially. Mr Alderman and others may also have been unsure quite how to play it at the start.

I agree that it is a rather curious way to go about things but I do not think that it can clearly be inferred that all of this was driven by Mr Alderman and a wish to cover up his initial wrongdoing on DC1. After all, there was no record taken by him of any such contact. So it is unclear what further assistance would be gained by somehow keeping ENRC “off the books”. In any event, it could not really be kept off the books and was not, once ENRC agreed to engage.

Accordingly, I do not think that I can treat this as separate evidence against the SFO (or against Mr Gerrard for that matter).

I can deal with this topic briefly. ENRC alleges that Mr Gould and Mr Thompson each double-deleted some documents or emails which are of significance in this case, including, in the case of Mr Thompson, the 18 June Letter (as described at paragraph 718 below). ENRC says that this shows that they were acting dishonestly because, in effect, they were seeking to dispose of evidence which showed their wrongdoing.

They both deny this. They said they needed routinely to double delete, otherwise the undeleted emails would count towards the maximum quota for their inboxes. Mr Marsh supported this. There were also other emails not contentious that were double deleted.

In addition, of course, it would not be a very effective means of getting rid of evidence since the recipient would still have the document and it would be on the recipient’s server e.g. Dechert.

I am not satisfied that the double-deletion here was deliberate as alleged. Moreover, in fact, as will be seen, this allegation does not actually matter, given my findings on the DCs.

I should refer at the outset (as previously noted) that in relation to the claims made against the SFO in respect of the DCs numbered 4-7, 9, 10, 14, 16-21, and 23-25A, the SFO makes an abuse of process argument which, if correct, would now debar consideration of those claims by me. For the reasons set out in paragraphs 901-916 below, I reject that argument. I also reject the secondary argument that I should in any event give weight to the relevant observations or findings by Andrews J in the Privilege Proceedings which are the foundation for the abuse of process argument.

On that basis, I proceed to deal with all of the DCs, so far as the SFO is concerned, in the normal way.

It is important to emphasise that while (mere) negligence on the part of Mr Gerrard would be sufficient to establish breach of his general duty to ENRC (albeit that ENRC puts the case higher), negligence will not do in respect of the SFO. Whether the claim is framed in inducement or misfeasance, there has to be shown, apart from anything else, a deliberate or reckless breach of duty on the part of the SFO at the relevant time. But since the relevant SFO officers must be taken to have known of their own state of mind at the relevant time, what this means is that if, for example, Mr Thompson says that he did not suspect Mr Gerrard of acting without authority when speaking to him on a particular occasion, there are only two possibilities. Either Mr Thompson is telling the truth or he is lying. There is no middle ground of being wrong but mistakenly so. If he suspected a lack of authority at the time, it is not plausible that he somehow had forgotten that fact. This is especially so for Mr Thompson who has already given evidence about a number of these matters once before, in the Privilege Proceedings. But in any event, both he and Mr Gould have lived with this litigation, and the claims made in it, for a number of years now. And to be fair to ENRC, in relation to both Mr Gould and Mr Thompson, its case is that they were indeed lying when being asked questions about their own conduct and their denials of any relevant suspicion.

All of that said, this does not mean that in a general sense, it is necessary to show that the relevant SFO officer behaved outrageously or disgracefully, or acted dishonestly, as if a thief. Their motive could be simply to get information which might prove useful one way or another in relation to ENRC and which might assist the SFO. I describe this as “bad faith opportunism” in paragraph 893 below. The point is that this will not matter, provided that they acted deliberately or recklessly in the relevant sense.

I should add that, save for any particular occasion on which it is said that the evidence showed that there was in fact actual authority for what Mr Gerrard said to the SFO, the latter did not generally challenge the evidence from ENRC that the content of the DCs said to be unauthorised was indeed unauthorised. That evidence is to be found in the WSs of Mr Dalman, Mr Ehrensberger and Mr Ammann. This is unsurprising since the key focus of the SFO’s defence where a lack of authority was allegedly involved was the state of mind of the relevant SFO officer, as Mr Colton QC made clear in oral closings.

Some of the 8 OMs are more relevant to the claims in respect of the DCs than others. Nonetheless I have made mention of each of them in this context. They are considered further in detail in paragraphs 1071-1327 below.

Paragraph 11.9 of the 2019 POC pleads that:

“It is to be inferred from the facts and matters pleaded below that Mr Alderman had been provided by Mr Gerrard with the 2011 Leaked Material (or, alternatively, the substance of the confidential and privileged matters addressed in the August 2011 Article) prior to publication of the August 2011 Article.”

As formulated in ENRC’s closing submissions, the allegation is that Mr Gerrard had at the very least tipped off Mr Alderman in advance about the leaking of documents to the press so that a reaction (i.e. the SFO Letter) was to be expected. The likelihood of Mr Alderman getting involved in some unauthorised contact with Mr Gerrard, prior to the SFO Letter depends to some extent on the nature of what is said to have happened. In my judgment, it is more likely that Mr Alderman would engage to some extent in prior contact with Mr Gerrard if the extent of that contact was essentially to tip off the SFO as opposed to passing him the particular documents to be leaked and/or inviting Mr Alderman to join with Mr Gerrard in ramping up the enquiries into an engagement with ENRC in order, among other things, to ensure that Mr Gerrard would earn large fees.

It seems to me that the most likely (or the least unlikely) version of DC1 is that Mr Gerrard tipped off Mr Alderman that another article about ENRC would be coming soon with some serious content - or something along those lines. Mr Gerrard’s motivation would be to pique the SFO’s interest in advance and possibly to ingratiate himself with Mr Alderman. From Mr Alderman’s point of view, his involvement would have been to agree to talk with Mr Gerrard and then receiving the information imparted to him. The question of what, if any, consequences flowed from this contact, if it existed, will be discussed later.

I therefore concentrate on this fairly attenuated version of DC1 because, having regard to all the features of Mr Alderman and his position as set out above, I simply do not consider that he would have gone so far as effectively to conspire with Mr Gerrard or to take custody of what would have been a secret hoard of documents, never to be disclosed, but nonetheless somehow to be made use of.

That said, I consider the existence or otherwise of DC1 by reference principally to the factors relied upon by ENRC to establish it. This is, of course, a case of inference since there is no direct evidence of any such contact. Nor is it as if Mr Alderman gave evidence and admitted it, which, for his part, Mr Gerrard denied.

As already noted, this was Mr Gerrard’s motivation for instigating the leak. I agree that it does not follow from this that he would have needed to communicate the fact of the leak, or what it was likely to be about, to the SFO in order to get it interested. The leak itself is likely to have done that. However, I do not think it was beyond Mr Gerrard at all to have wanted to give the SFO a tipoff; see paragraph 455 above. It is in this regard that the Alstom matter becomes relevant.

The email which is the direct subject of DC7 was from Mr McCarthy reporting back to Mr Alderman on Friday, 21 October 2011. The second part of that email reads as follows:

“On a separate matter NG raised a “hypothetical” issue concerning a large multinational , who he said may have approached him, that might be upset with the behaviour of a “white collar” law firm in dealing with SFO enquiries. The hypothetical company were being advised to prevaricate rather than assist. I told NG that he should seek to speak with you personally on a hypothetical basis to discuss matters informally , (certainly before the 26^th October).

I am back in the office on Monday and happy to discuss further if required.”

Mr Alderman queried who the company might be and Mr McCarthy replied that he thought it was “A” because of the reference to the date, which was when there was going to be a meeting with Alstom.

On the face of it, Mr Gerrard, as reported by Mr McCarthy, was clearly saying that the company in question had received legal advice to prevaricate rather than assist and it had approached him because it was dissatisfied with that advice being given by its current lawyers. It is all very well saying that this was “hypothetical” but I do not see how that changes the position. Of course, Mr Gerrard could have been instructed by a client to make such an initial approach to the SFO on a “no names” basis. However, it would be difficult to assume this, especially as Mr McCarthy guessed that the company in question was Alstom where a meeting had been scheduled for the following week, presumably with the existing lawyers.

In cross-examination, Mr Gerrard said categorically that he was not referring to Alstom and he had never spoken to the SFO about Alstom. In itself, in terms of what he had told Mr Findlay, that was unlikely because in their January 2012 recorded conversation (see paragraph 405 above) he said that he had been asked by the SFO to get involved in Alstom. However, in cross-examination, Mr Gerrard went further and said that the company concerned was actually a sovereign wealth fund in the UAE which was concerned about its subsidiaries. Yet he could not recall the client’s name and Clyde & Co later confirmed that there were no meetings around that time scheduled with a Dubai/UAE wealth fund. In my view, Mr Gerrard was obviously lying here and the company was Alstom.

In addition, this episode shows that while Mr Gerrard was keen to deny in his evidence that it was Alstom, he obviously felt no compunction about approaching Mr McCarthy and Mr Alderman in this way for some kind of “fireside chat”. It is unlikely that it was the first time. Mr Gerrard must have known how Mr Alderman worked by that point.

It is very hard to see how Alstom could have properly agreed to Mr Gerrard having an informal meeting in these circumstances where it was far from clear that he was actually being instructed by that company. The fact that Mr Alderman did not, it seems, reject the proposed discussion outright shows that he was indeed prepared to see people like Mr Gerrard on an exceedingly informal and possibly unauthorised basis. This means that it is entirely plausible that he would have entertained a chat with Mr Gerrard back in July 2011 (which led to the tipoff) even if Mr Alderman did not initiate it.

On this point, the SFO has invoked paragraphs 2 and 20 of the 2009 Guidance. However, paragraph 2 simply says that there may be early engagement between the company’s advisers and the SFO to obtain an early indication of the SFO’s approach. Paragraph 20 is concerned with when company A might wish to obtain a view from the SFO about company B which it is proposing to acquire; see the prior paragraphs 18 and 19. All paragraph 20 says is that such matters would be very confidential and advisers may wish to discuss a possible approach to the SFO before the acquisition is made. I can see that both paragraphs 2 and 20 postulate a possible early “no-names” approach. But the question here is not about the anonymity of the client; it is where it is not clear that the lawyer making the approach is in fact instructed by that client at all, and where it is not about an enquiry as to the SFO’s possible approach but the communication of privileged information.

I cannot say for sure that Mr Alderman and Mr Gerrard were close friends. But they clearly knew each other and Mr Gerrard accepted that he may have seen Mr Alderman before the August Article. The point is more that they knew how each other worked to the extent that I am sure that if Mr Gerrard wanted to see Mr Alderman for a quiet chat, Mr Alderman would readily have agreed.

I do find it odd that the morning after a newspaper article, the SFO was able to send the SFO Letter. The issue is not how long it would have taken to draft it. Rather it is why the SFO saw it as so urgent to send it out the following day on the assumption they had no advance warning of the August Article. Indeed, the instruction from Mr McCarthy to type up the letter was marked as “URGENT”.

The SFO submits that the idea of investigating ENRC had been raised some time before July 2011. It refers to an email from Mr Collins to Mr Morling, Mr McCarthy and Mr McCall on 24 May 2011 after hearing Mr Joyce speak in the Commons about ENRC. It is worth citing almost all of that email:

“He is quite right re the ownership of ENRC… His summation re the takeover of the Kolwezi mine is almost correct. The problem he has is that he is unaware of the consent SAR submitted on behalf of ENRC. Whilst other organisations may have felt there were issues and possible Proceeds of Crime implications by obtaining consent to the deal from the Met Police ENRC must have felt they had done nothing wrong, and therefore if the appropriation is ruled illegal then it is the government of the DRC who will have to recompense First Quantum.

That is not to say that ENRC are innocent of all charges, and in respect of there actions in the DRC there are moral issues, but at present there is no evidence of criminality on their part re this deal. That is not to say that when the Bribery Act comes into force we may want to invite them in to tell us of the procedures they have in place to prevent the payment of bribes to overseas officials, but a lot of UK companies deal in natural resources in Africa.

Re the proposed sacking of non exec directors and Sir Richard Sykes there is no evidence of criminality of a nature which would concern the SFO. This is, in my opinion, an area for the FSA to look into.

However in view of the names of some of the MP’s who were at the House and voted on a earlier motion it may be worthwhile re asserting our commitment to deal with corruption where there is evidence.”

Taken in context, that is hardly a clear decision to approach ENRC and indeed the SFO did not do so upon the Bribery Act coming into force on 1 July. So I still find the timing of the SFO Letter odd.

It would be less odd if Mr Alderman already knew, before the article was published, that it was going to appear and would say damaging things about ENRC which perhaps could not be ignored. The only documentary evidence going to the timing is that, by 8:20am on 10 August, Mr McCarthy clearly knew that ENRC was going to be invited to something, because he was emailing about this to Alex Daley, being Mr McCarthy’s Staff Officer. Mr McCarthy’s instruction to Ms Carlyle to draft up the letter later in the morning also asked her to send a copy to Andrea Johnson who was Mr Alderman’s Senior PA. The covering email for that referred to the fact that Mr Alderman had asked Mr McCarthy to invite ENRC in. It is impossible to say if and when Mr Alderman discussed the writing of this letter for the first time with Mr McCarthy, but overall, I think its timing does suggest some foreknowledge of the article on the part of Mr Alderman.

Another matter relied upon by ENRC is that Mr Gould said he was unaware of how the case got to the SFO in the first place. He may have been, but then, on any view, he was not in at the beginning as it were. His involvement only really started in around December 2011. By then, OM1 and OM2 had taken place and ENRC was very much on the SFO’s radar. I doubt it would have been of much concern to Mr Gould at the time exactly how the case started. So this does not take the matter much further.

Another piece of evidence concerning Mr Gould is that he agreed that he had heard a rumour that Mr Gerrard was the original informant for the SFO. But that was not at the time of his involvement, but subsequently. I do not think any real weight can be placed on this.

ENRC also made the point that the SFO Letter was surprising, not merely because it was only one day after the August Article but also because it represented something of a U-turn in the SFO’s view of ENRC. The strength of this point rather depends on whether one is talking about an inclination to start a criminal investigation or something less. Despite Mr Collins’ views on the former, there was still intelligence gathering going on by Mr Collins himself. Indeed, ENRC relies upon Mr Collins’ continuing involvement. So in an email to Mr Morling, his manager, on 17 June 2011 he lists ENRC as one of his “big pre projects”.

It should also be recalled that Mr Collins and Mr Alderman met Mr Joyce at Portcullis House on 20 July 2011. It is true that if this meeting was Mr Alderman’s idea it could have been sparked by what Mr Gerrard told him, since by then Mr Gerrard would have known of the likelihood of an article. Nonetheless, the distinction between continuing intelligence gathering and any intention to even start to go down the road of a criminal investigation is borne out by the wording of the SFO Letter itself. Also, Mr McCarthy’s instruction to Ms Carlyle about the SFO Letter said that Mr Collins should be asked to continue “his discreet, covert, enquiries…”.

ENRC also relies on what Mr Joyce says he was told by Mr Collins when they met on 20 July, namely that the SFO had a source which was a channel for a rich vein of material from the company, and there was mention of a Kazakh whistleblower. The suggestion is that the former was Mr Gerrard who, as a source, was improperly communicating details of wrongdoing etc. to (at least) Mr Collins. The difficulty with this is that first, Mr Joyce was not a wholly credible witness, but in addition, there is no documentary evidence of this source at all. Of course, ENRC argues that the absence of any document is because Mr Alderman (and perhaps Mr Collins) knew that they should not have been communicating with Mr Gerrard anyway as he was ENRC’s solicitor and his communications were plainly unauthorised. Nonetheless, it is surprising that there is nothing even sketching out the information provided and if it was so sensitive, it is difficult to see why Mr Collins would tell Mr Joyce about it.

Even if something was said about a source, it could have been the source which provided information on 8 September 2010 during an informal interview which was recorded. Further, knowledge of the Kazakh whistleblower who wrote WB1 was extensive within ENRC. Mr Hollingsworth had himself heard about it by 5 April 2011 and it is not implausible that someone mentioned it to the SFO as well. It did not have to be Mr Gerrard.

I do not consider that the SFO wholly reversed its earlier position on ENRC. There was already an amount of information about ENRC, and pressure from an MP like Mr Joyce may well have heightened a sense that the SFO should do something, even though the SFO Letter itself would not be publicised.

ENRC also relies upon the fact that Mr Thompson and Mr Gould seem to have been kept in the dark about the meeting which Mr Alderman and Mr McCarthy had with PwC on 27 October. But that does not really go much beyond Mr Alderman (and Mr McCarthy) not keeping other personnel informed.

It is true that Mr Alderman was probably prepared to make judicious leaks to the press when it suited him. But it does not really show that he had embarked on a series of communications with Mr Gerrard or received actual privileged documents or assisted Mr Gerrard with his aim of kick-starting an investigation.

ENRC places reliance on the apparent instruction to keep the case “off the books”. The evidence as to how this is said to have emerged is not straightforward and I have dealt with this generally in paragraphs 435-442 above. But in the context of DC1, it is said that this instruction must have emanated from Mr Alderman and the reason for it was to ensure that there would be no record of Mr Alderman’s earlier improper communication with Mr Gerrard. But that does not make much sense. The instruction was only given in November 2011 when the case was most certainly on the books in the sense of OM1 and the notes taken of it. And if there had been an improper meeting between Mr Gerrard and Mr Alderman much earlier, there was no record of it anyway and no evidence that Mr Alderman (or perhaps Mr McCarthy if he knew) told anybody anyway.

In my view, the true position was this: Mr Gerrard knew Mr Alderman well enough to have a quiet chat with him. He did tell him at some point before the article that it was going to be published and at the very least said that it would contain important and damaging information about ENRC which had been leaked. In addition, Mr Alderman must have understood that Mr Gerrard was involved in the leak. That is either because Mr Gerrard said or implied as much or because it was obvious, given that he was tipping-off Mr Alderman in advance about a significant article based on leaked information.

Mr Alderman was thus alerted to this and in the context of other information about ENRC, although it did not justify (in the eyes of Mr Collins) a criminal investigation either then or shortly thereafter, it would justify the SFO taking a formal interest especially in the light of the introduction of the Bribery Act. Mr Alderman probably then gave thought to the writing of a letter sometime before the article was actually published. When it was published, he was ready to move. He probably told Mr McCarthy about this, too.

He then returned the favour to Mr Gerrard by telling him on 10 August that a letter was coming out. That explains how Mr Gerrard knew this on that day but he was hardly likely to tell anyone at ENRC then, for obvious reasons.

But DC1 goes no further than that. I have no doubt that, absent the tip-off, the SFO would still have written the letter although a little time later. I deal with the question of breach of duty on the part of the SFO here at paragraph 485 below and with causation on this point at paragraph 1678 below.

In my judgment, by at least entering into a conversation with Mr Gerrard, who must at least have said he was acting for ENRC (otherwise Mr Alderman would not have understood why he was there) and receiving the information about the leak to the press, Mr Alderman acted in gross and deliberate breach of his Independence Duty. He would have known that Mr Gerrard could have had no authority to be involved in any kind of leak, nor would he have had authority to speak to the SFO about it. On my findings, Mr Alderman clearly did receive information about the leak and as a quid pro quo, he told Mr Gerrard that the SFO Letter, or at least a letter from the SFO to ENRC, was on its way. Mr Alderman should never have dealt at all with Mr Gerrard at this stage and in those circumstances.

It also follows from the facts found above that Mr Gerrard was, again, in gross and deliberate breach of duty by communicating with Mr Alderman in the way set out above in respect of the forthcoming article and the SFO Letter.

I turn first to the DCs which followed DC1 up to DC13. I shall deal with them chronologically and intersperse, as necessary, other relevant events. These will include in particular the various OMs between the SFO and ENRC. I then pause, as it were, to deal with the Depel Interview claim against the SFO because it is important to deal with it when it arises in the chronology. I then revert to the remaining DCs.

I make the following introductory observations applicable to all the DCs considered.

Sometimes, it will be necessary to consider one DC in the context of a later (or earlier) DC or OM. This is not merely to provide context and a sense of chronology. It is also because it assists in determining the credibility or otherwise of Mr Thompson and Mr Gould (as well as Mr Gerrard).

Of course, in normal circumstances and in a conventional SR process, one starts with a strong presumption that when a solicitor communicates with the SFO purportedly on behalf of his client, he is indeed acting with that client’s authority. But as the whole process of engagement with the SFO here shows, this was far from a normal engagement. See the remainder of this section, the DCs considered hereafter, and the discrepancies between what was said in the DCs and in the OMs also considered hereafter. But that presumption is why the focus has been on occasions when Mr Gerrard was plainly acting without authority (or not) so far as the SFO officers were concerned (see paragraph 180 above).

It may be one thing if there is an isolated occasion where an SFO officer fails to spot or even suspect that someone like Mr Gerrard is plainly acting beyond his authority or against his client’s interests. It is quite another if there is a series of such occasions as there was here.

Nor is it in dispute that the SR process will usually involve disclosure of wrongdoing on behalf of the company – indeed that is usually the start of the process, although not here. But that does not mean that the disclosures made by Mr Gerrard here and the way that they were made was a natural part of the process. (Indeed the whole process here was not a typical one. See in particular paragraphs 141-146 above, and 996-1014 below.) To take but two examples, it is very hard to see how an SFO officer could assume that a solicitor was acting within his client’s authority when he imparted information he did not know “officially” or expressed concerns about his own professional position as against that client. Equally, as I explain below, simply to invoke the concept of being “full and frank” in the SR process, without more, does not assist. See paragraph 1017 below.

I now turn to Mr Thompson. As will be seen hereafter, I have rejected his account of what he thought at the time in relation to Mr Gerrard’s unauthorised communications at DC8-10, DC15 and DC23-24. These span the period 30 November 2011 to 28 February 2013. All of these matters bear upon each other in terms of Mr Thompson’s credibility. He is obviously no one’s fool. He is a Cambridge graduate and a qualified accountant and was at times a plausible and persuasive witness. However, in relation to the relevant DCs, his evidence simply did not stack up in my view and was implausible. He was plainly not as naïve as he sometimes suggested.

As for Mr Gould, I have rejected his account of what he thought in relation to DC13, DC15 and DC19A-20, which ran from 9 May to 20 December 2012 although he had been involved in the investigation prior to DC13. His particular problem, apart from the implausibility of his evidence in relation to these matters, was that he got far too close to Mr Gerrard as I shall explain below.

In addition, of course, as matters moved on, while there was between Mr Thompson and Mr Gould some friction after the former became the latter’s superior, they both worked together on ENRC and both attended one of the relevant meetings together where I have rejected their accounts. It is impossible that they did not talk about Mr Gerrard and share a view of him which included appreciating or at least suspecting (but doing nothing about it) that he sometimes acted out of line, as it were.

The upshot of all of this is that in rejecting their accounts I consider that they were lying.

I should also deal here with a point which Mr Gerrard often made when dealing with particular DCs and the question of authority to say or impart what he did. Indeed, it became something of a mantra. This was that he had ENRC’s authority to “manage” the SFO as he thought fit. However, there is no clear evidence of any such authority having been given in such wide terms and secondly, it is not clear, on analysis, what it means. It could mean a degree of discretion as to what or what not to say, or what strategy to adopt in respect of the SFO, at any given time where all of those matters would have been authorised. That is one thing, but it could not encompass saying (and I think this was Mr Gerrard’s case) something which on its face was not in ENRC’s interests and which he could not have had authority to say. He could not possibly have genuinely thought that ENRC was empowering him to do that, especially in the absence of any express indication and especially where the thrust of ENRC’s own, plausible, evidence was that it did not do so.

I therefore do not, in any particular instance, consider that if Mr Gerrard was otherwise in breach of duty (including being reckless or deliberate), he can be saved by some supposed general power to manage the SFO in any way he saw fit.

There might even have been times when, somewhat perversely, Mr Gerrard actually believed that some ultimate interest of ENRC might be best served by him persuading the SFO that they could trust him as ENRC’s lawyer and effectively a negotiation partner, and was halfway to being “one of them” precisely because he was prepared on occasion to “tell tales out of school”, and thus it would assist him to deliver for ENRC a beneficial result which would be the avoidance of a criminal prosecution after a perhaps lengthy SR process. But if he had that sort of motive, it cannot excuse him either, because he would still have known that he had no actual authority and that when he actually said something that was at that point clearly against his client’s interests he knew it was so, or was recklessly indifferent to that.

Furthermore, as already noted above (and see below), I do not believe that any such motive was wholly “pure” in any event. It was tainted by Mr Gerrard’s desire to fuel the work that needed to be done and also a separate desire to ingratiate himself with the SFO for personal reasons, unconnected with ENRC.

Many of the DCs require consideration of the meaning of the particular words used. But that does not mean over-interpreting them. They should be looked at objectively, and not speculatively, and in fact their meaning is often obvious.

Much has been made of the fact that, especially under Mr Alderman, the SR process could be relatively informal. Further, it would involve the disclosure of criminal wrongdoing on the part of ENRC. However, that cannot override a breach of duty on the part of a solicitor communicating information without authority. Moreover, part of the problem here was the nature of the actual engagement undertaken by ENRC. I have discussed this in detail in paragraphs 920-1070 below.

As at 25 August, it would appear that Mr Ehrensberger had not yet decided who would attend OM1 on 3 October. However, according to Ms Black’s notebook, Mr Gerrard told her on about 25 August that he had been instructed to have a “private meeting” at the SFO with Mr McCarthy (the author of the SFO Letter) or someone else, to find out what other areas of interest to the SFO there might be.

Mr Ehrensberger was asked about this in cross-examination. He said that it had been discussed that Mr Gerrard should at some point get in touch with the SFO prior to OM1 subject to Mr Ehrensberger deciding who should attend OM1. At that point, Mr Gerrard was not dealing with Africa, only Kazakhstan. It was thought to be probably a good idea to find out in advance the areas on which the SFO wanted some elaboration from ENRC. Whether Mr Gerrard would actually attend OM1 was a different matter. Mr Ehrensberger then accepted that Mr Gerrard had nonetheless been asked to have a private meeting to find out what the SFO was interested in. I do not think much turns on the use of the word “private” here. It really just meant a meeting between the SFO and Mr Gerrard alone. Mr Gerrard’s own evidence that he had been instructed to request a “pre-meeting” was not itself challenged.

I think that Mr Gerrard then wanted to speak to Mr McCarthy to arrange such a meeting. The documents show that Mr McCarthy was in fact away that week and Mr Gerrard spoke instead to Mr Alderman, as Mr Gerrard agrees. On 5 September, Ms Johnson emailed Mr McCarthy to say that Mr Alderman wanted the latter to contact Mr Gerrard to come in for a meeting with them both regarding ENRC. Mr McCarthy, for his part, said in his reply that he did not know what Mr Gerrard had to do with ENRC. There is nothing surprising in that. First, Mr Alderman may not have informed Mr McCarthy of DC1. Second, ENRC would not have told Mr McCarthy about the status of Mr Gerrard if it had not even been decided whether he would attend OM1.

Mr Gerrard’s evidence as to what was said in his call with Mr Alderman is unsatisfactory because he contradicted what he had said in his WS to the effect that he was to approach the SFO to find out what it was concerned about. In evidence he said that was a “ridiculous” suggestion. Nonetheless, that does appear to have been his instruction.

All ENRC could allege here was that while the contact was itself authorised, it should be inferred that Mr Gerrard took the opportunity to disparage ENRC in that call. That is pure speculation in my view even on the basis, as I have found, that a version of DC1 occurred. Moreover, not much of note appears to have happened, since all Mr Alderman did was to say there should be the meeting referred to above.

Accordingly, in my view, there was no breach of duty either by Dechert or the SFO in relation to DC2.

At this point in the chronology, it is necessary to say something about Mr Gerrard’s views about JD. In July 2011 and following his (re)-appointment as General Counsel, Mr Ehrensberger engaged JD to give strategic direction to ENRC’s response to the coming into force of the Bribery Act.

In a meeting on 25 July, Mr Gerrard told FRA that JD was not experienced in the Bribery Act area and ENRC had given itself problems by asking JD for a report on it.

On 15 August, Mr Ehrensberger agreed with Mr Gerrard that both firms should work together and that Mr Gerrard was authorised to share progress on the internal investigation with JD.

On 16 and 17 August, Ms Territt sent draft responses to the SFO Letter. At this stage, of course, neither firm had been instructed to deal with the SFO specifically, as the latter had only just become involved.

On 18 August, Mr Gerrard told an internal Dechert meeting that JD were “encroaching” and were “interfering” on [the] education [allegation] (this refers to the “Education Allegation” addressed in paragraphs 959-960 below). He also said that Mr Richards would try to take control. On the same day, Mr Ehrensberger told Mr Gerrard that at the meeting with the SFO to be arranged, he would take Mr Gerrard and probably JD, as they were the main advisers on compliance systems.

On 1 September, Mr Anderson instructed Ms Adams to draw up a letter to come from Mr Ehrensberger to confirm that Mr Gerrard was instructed to discuss the affairs of ENRC with the SFO; however, no such letter was ever signed by ENRC. The next day, Mr Gerrard is recorded as saying to FRA that Mr Ehrensberger appeared to want Mr Gerrard to run the SFO engagement and the investigation, with JD dealing with the compliance side.

By 6 September, it seems clear that both Dechert and JD would attend the forthcoming meeting with the SFO which became OM1.

On 8 September, Mr Gerrard met with Mr Ehrensberger and JD to discuss preparations for OM1. Mr Richards’ note recorded that Mr Gerrard thought there would be increased concern if he was not at the meeting.

On 20 September, Mr Gerrard told FRA that JD had considered the report i.e. the Internal Audit report on the Education Allegation (see paragraphs 959-960 below), and did not see an issue since the scholarship was a one-off payment or the payments had been stopped. Mr Gerrard questioned how they knew that, and who had sanctioned it, and might there be fallout accordingly. He thought that JD were not going through the process of investigating but rather the process of “neutralising”. He later said that they were not independent, Camrose was one of their deals, and questioned if there had been any due diligence and he was “very uncomfortable”. In fact, there had been extensive due diligence or at least there was due diligence in the Camrose Due Diligence document referred to above. In addition, EY conducted financial due diligence and SRK Consultants carried out technical due diligence.

As will appear hereafter, Mr Gerrard continued to seek to sideline JD for no good reason, in my view, other than to ensure Dechert’s control of the investigation.

I now turn to DC4 as DC3 has been abandoned as an allegation.

This was the meeting whose planning is referred to in paragraph 503 above. The meeting itself was therefore authorised. There are two elements to the evidence of what was said or discussed at this meeting. The first is contained in Mr Alderman’s own note which reads as follows:

“Neil Gerrard

Represent Audit committee

Africa

Jones Day too close

PwC—auditors

If they go offshore it will be [because] of [possibility] of [increased] o/sight by NEDs

DoJ involvement. US Citizens are directors/NEDs.

V Russian culture. They need to understand big problem.”

The second is the notes taken (at some point) by Mr Gerrard, purportedly of, or in relation to that meeting. This note said:

“- Company within our sights

- If prepared to move in right direction

- doesn't matter bad

- " problems

= Must be genuine - chances of a

raid high

- people talking

about Africa

-

Must build confidence or ??

- This is not a threat → cooperation

with DoJ.

- range of issue re Africa

- issues pre date article.

- Advisors”

I deal with the first note first. As a preliminary point, I consider that this was Mr Alderman’s note of what Mr Gerrard told him, not what he told or suggested to Mr Gerrard. The latter possibility does not seem to me to make much sense and the note is drafted as a record of what Mr Alderman and Mr McCarthy heard as opposed to, for example, any action plan on the part of the SFO.

As for the phrase “Jones Day too close”, ENRC suggest that this was plainly damaging to ENRC’s interests and in effect was criticising its own lawyers in a way that could not have been authorised. This was of course reflecting some of the things that Mr Gerrard had already been saying about JD though not directly to ENRC. I am quite sure that he was keen to plant the seed of doubt in the minds of the SFO at an early stage, because, whether there was anything in the point or not, he wanted to ensure that he would have control over the engagement with the SFO. After all, as this was meant to be nothing more than an introductory conversation, to get some idea of what the SFO was really interested in, it is very hard to see why he needed to mention JD at all. What he said about them was particularly damaging to his client’s interests if JD were later to attend SFO meetings (as indeed they did, as Mr Gerrard must have known was likely or possible). It was also plainly confidential, if not privileged, information that (if true) they were too close on the basis that he was suggesting that he had already so advised, as ENRC’s lawyer. Accordingly, this was a serious and reckless breach of duty on his part.

There is a telling reflection of this in the recorded January 2012 telephone conversation between Mr Gerrard and Mr Findlay. Mr Gerrard at one point says that the SFO is:

“…not happy with Jones Day.

CF: Why..is this incompetence or...?

NG: No no, I think they..they think they're too close to the company.

CF: Which is probably true.

NG: Which is true. Er I assume…”

It was, however, Mr Gerrard who had planted that seed of doubt in Mr Alderman’s mind rather than the other way round.

So far as Mr Alderman is concerned, he must have appreciated that Mr Gerrard could not possibly have been authorised to say this about other lawyers involved with ENRC.

The next sentence complained of, about going offshore, is also damaging. The implication is that at some point, the operations and/or assets of ENRC would or might move out of the jurisdiction. For his part, Mr Gerrard “doubted” that he made this statement but I see no reason why Mr Alderman would have noted it if he had not. I reject the suggestion that it was a comment that the latter made to Mr Gerrard.

Both the SFO and Dechert say that, even assuming Mr Gerrard had said this, it could not possibly have been, or be presumed to have been, a statement plainly against ENRC’s interests and thus unauthorised. That is because there had been reports in the press about such a move to a “lighter touch” regime; see, for example, the article in The Times on 8 June. Dechert adds (as Mr Gerrard said in evidence) that it would have been positively sensible to refer to this because it was “out there” and should be confronted. I do not accept these points. The fact that something is reported by the press is one thing; for the SFO to be told by the solicitor acting for the company, who can presumably be taken to have inside knowledge, is quite another. As will be seen, this point about press coverage recurs in other instances of alleged breaches of duty and my observation here applies there, too. Second, the fact that information about some aspect of ENRC’s activities is “out there” does not mean that it is necessary to refer to it especially at what was, in fact, the first authorised substantive meeting.

In addition, the remark should not be seen in a vacuum. It needs to be seen in the context of the other remarks about “DOJ involvement” and the “big problem” both of which, in my view were designed to arouse the interest of the SFO (see below).

I consider that Mr Gerrard was clearly in breach of duty by making this remark for which there was no authority. I also consider that he made it in order to pique further the SFO’s interest and it was thus made in bad faith. Finally, in this respect, these were breaches which were knowingly or recklessly committed by Mr Gerrard. Even if he had not pre-planned the remarks in advance, and simply got carried away, this makes no difference because he must still have been aware of the breaches.

As for the SFO’s breach of duty, I have already rejected a point based on existing coverage in the press. It is also said that because Mr Gerrard was instructed by the AC, as he had said, Mr Alderman could (and did) assume that everything said by him purportedly on behalf of his clients was authorised. However, (a) that is not necessarily an answer where the nature of the statement appears plainly contrary to the client’s interests and where, if it had been authorised, one would have expected the statement to make that clear, (b) whatever the reason, there is no evidence from Mr Alderman (or Mr McCarthy) as to what they thought and (c) on the basis of DC1, Mr Alderman knew that Mr Gerrard was the sort of person who was capable of going behind his client’s back in a serious way.

Especially when taken with the other statements (see below) I consider that Mr Alderman knew that this statement was not authorised and that he should not be recording it (for future possible use) or engaging with Mr Gerrard about it and he was therefore in reckless breach of the Independence Duty at the very least.

One then turns to the reference to the DOJ and the US citizens who were also directors of ENRC. First, it appears that this was untrue. Second, I have little doubt that Mr Gerrard, again, said it to “up the ante” and make the SFO think that if the DOJ were involved, the SFO should be, too. Mr Gerrard accepted that he made the statement but could not remember who brought the subject up. However, in the context, I am quite sure that he raised it. This is a further breach of duty on the part of Mr Gerrard not least because what he said appeared to be untrue.

As for Mr Alderman, I think that he, too, must have been aware that Mr Gerrard could have had no authority to say this. It was imparting information which, as far as Mr Alderman was aware, must have been new. Mr Alderman could not already have known about it since it was false. On the face of it, it is simply volunteering further damaging information about ENRC. So this is a further breach of duty.

I should add that the fact that the SFO and DOJ may liaise in their work in appropriate circumstances or that AF had separately advised ENRC to engage with the DOJ does not in any way justify Mr Gerrard telling a story as he did here with the only conceivable motive being to arouse the SFO’s interest.

Finally, there are the references to “very Russian culture” and a “big problem”. I, of course, accept that the role (and criticism of) the Founders in ENRC was well known. But again, that is not the point. This is ENRC’s own lawyer telling the SFO effectively that those running ENRC still failed to understand that there were serious problems about its governance and operations, the implication being that they would continue as before. It is telling that while Mr Gerrard accepted that he made the statements, when asked by me about the reference to a “big problem” he said that he could not explain it. In my judgment, the remark was designed to interest the SFO in engaging with ENRC so as to make it understand that it had a real problem. That might have been a useful tip or piece of advice for the SFO, but it is very hard to see how it could legitimately come from its own lawyer. Dechert suggests that it must have been implicit in Mr Gerrard’s instructions from the AC that he should communicate the fact that ENRC (now) accepted that it had to address a big problem i.e. to show the SFO that it was sincere. However, that is not what he said; he said there was a culture which did not understand that there was a big problem.

Once more, there is plainly a breach of duty on the part of Mr Gerrard. And again, it is hard to see how Mr Alderman could have thought Mr Gerrard was authorised to make those remarks; I find that he knew they were unauthorised or was at least recklessly indifferent to that possibility. So he was in breach of duty, too.

I should add that according to Mr Ehrensberger, Mr Gerrard did not report back to ENRC any of the remarks in question. Mr Gerrard himself said that he probably did not report back the “big problem” remark. Moreover, none of these remarks are consistent with the aim of the meeting being (as ENRC saw it) to get an indication of the SFO’s concerns.

In relation to all of these matters, there may be a question as to what, if anything, the SFO actually did with this information. That is a matter of causation and loss - and possibly an issue going to declaratory relief. But in my view, the taking and recording of the information is sufficient to entail a breach of duty for the purpose of misfeasance.

I now turn to the second element of DC4 which is Mr Gerrard’s note. Although Mr Gerrard said that he took the note in the course of the meeting, I think it more likely that it was done afterwards. This is because he also said in evidence that it was his “takeaway” from the meeting - in other words what he understood was being communicated to him by the SFO. I think that this note was more of an aide memoire for Mr Gerrard in terms of what he would report back to, or tell ENRC.

As for the reference to “chances of a raid high”, on Day 40 and following earlier evidence given by the SFO witnesses, it was suggested that ENRC be permitted to amend its case to allege that, while ENRC had originally not admitted the truth of Mr Gerrard’s note as a record of the meeting the true position was as follows: (a) Mr Alderman had said those words but purely as a bluff, but with the intention that Mr Gerrard would note the remarks, even though the latter knew they were a bluff, (b) while Mr Gerrard knew they were a bluff the fact of Mr Alderman saying them enabled Mr Gerrard to say that he had made a genuine note and (c) then later to scare the clients into further action (leading to more fees).

For a variety of reasons, not least the highly speculative nature of this proposed amendment, I refused it on Day 40.

By the time of written closings, ENRC had reverted to the position that Mr Alderman had not in fact said these words, not least because they could not have been true at the time. Mr Gould and Mr Thompson had both said in evidence that there was no high risk of a raid then and if there had been, it would have been odd for Mr Alderman to announce that fact. Even Mr Gerrard at one point accepted that the SFO were not that far along. In my judgment, this was part of the context for Mr Gerrard to ramp up the threat of a raid falsely, again to increase the scope of his likely work or at least the present threat from the SFO.

All the breaches of duty identified here by Mr Gerrard and the SFO were at least reckless.

The postscript to DC4 is the fact that Mr Gerrard met Mr McCarthy the following evening for a meal at an Indian restaurant in Bermondsey. He claimed expenses for it from Dechert at the time although ENRC did not know about it. ENRC says that it is a safe inference that Mr Gerrard will have besmirched ENRC on that occasion. I do not regard that as a safe inference. I think Mr Gerrard used the occasion as an excuse to get to know Mr McCarthy better and probably to ingratiate himself with him and the SFO. Immediately following a formal meeting with the SFO and ahead of others, it was a highly inappropriate thing to do. But that is as far as it goes on the evidence I have before me.

On 30 September, Mr Gerrard spoke to Mr McCarthy. There is no evidence that he was asked to make the call and he took no note. Mr McCarthy did, and it reads as follows:

“Friday 30/9/11—11.30am

Client knows he came to see SFO!

Told them it was serious/concerns.

Various factions in company.

Aware of SAR’s. Dan Gertler? Yes.

Shaun Richard—Jones Day/Herbert Smith acting? Friction between the two.

Neil—Audit Committee—proposes to play it low key. (may not want to do the business review).

I believe it ought to be for Audit Committee. Independent law firm required. Agrees.

Ask Neil to explain his areas of concern what does he want to express.”

The obvious inference from the second line is that Mr McCarthy (at least) had thought that what had been said at DC4 had not been, or might not have been, authorised by ENRC although the meeting itself was, as we know. That would fit with the SFO’s reference to it as “private”. I do not accept the SFO’s suggestion that this remark meant something entirely different - see paragraph 7(1) of Appendix S to its Closing. Those are unrealistic interpretations. The SFO says that I should give it the benefit of the doubt since Mr McCarthy was not called. That is not an answer since the SFO could, in the event, have called him. Anyway, the meaning remains clear.

A further suggestion is that if there had been any doubt in the mind of Mr Alderman (or Mr McCarthy) about whether information passed to them in DC4 was authorised, this statement would reassure them they were authorised. I do not accept that. Mr Alderman was quite capable of understanding the difference between Mr Gerrard attending a meeting with the authority of his client and “speaking out of turn” as it were. I do not think that anything said by Mr Gerrard in DC5 removed any prior breach of duty by the SFO, or its effect.

As for “told them it was serious/concerns”, I agree that this could be innocuous. It could be Mr Gerrard doing no more than passing on to his client the fact that the SFO had said that the matter was serious or that it had concerns, so doing little more than conveying a message. As such, it might not be privileged information or at any rate, depending on what he told his clients, the client was impliedly authorising him to let the SFO know that he had told them. This could be so, even though there was no evidence of him noting the SFO’s concerns in terms, in contrast to his reference to the high chance of a raid.

But in my view, the expression reads as something else. It reads as Mr Gerrard telling the SFO that he thinks the situation is serious and he and/or the SFO have concerns. If so, that is plainly a privileged communication. It is an example of a trend in his dealings with the SFO where Mr Gerrard seems not so much to be acting for ENRC and “against” the SFO (albeit within the confines, initially, of an SR-related process) but rather as some kind of middleman or intermediary between the two. I consider that Mr Gerrard was clearly in breach of duty in making this statement. The fact that at the subsequent OM1 on 3 October, Mr Ehrensberger says that ENRC took the SFO Letter seriously, does not alter the position.

Equally, I consider that Mr Gerrard’s remarks about factions within ENRC and friction between lawyers was clearly not in his client’s best interest because it simply undermined ENRC in the eyes of the SFO and suggested that it was a split company. This was more influential, as a piece of information, than a press article or even a well-publicised resignation.

I am less clear about the two lines referring to the AC. I think the first line is recording what Mr McCarthy understood Mr Gerrard was telling him about what the AC was thinking. The second line is not, in my view, recording what Mr Gerrard thinks should be done, rather it is Mr McCarthy’s view of what should be done. Although it is perhaps innocuous, I do not agree that ENRC must have authorised, or did, authorise Mr Gerrard to say these things about the AC’s thinking. That is especially so when ENRC did not know that he was going to be speaking to Mr McCarthy at this point. To that extent, Mr Gerrard was acting in breach of duty.

However, in relation to the references to the AC, I do not think that they were obviously unauthorised and/or against the client’s best interests as perceived by Mr McCarthy, or if it was known, that this was likely to damage ENRC’s interests. Accordingly in this particular respect I do not see any breach of duty on the part of Mr McCarthy.

However, on the statements about “serious/concerns”, factions and friction, I think that Mr McCarthy must have known that the client would not have authorised this especially when they are taken together. Of course, Mr McCarthy is not the subject of any alleged breach of duty and Mr Alderman was not present at the meeting. However, ENRC says that Mr McCarthy must have informed Mr Alderman of the call and the contents of the note and as such the latter was in breach of duty in receiving and retaining that information (see paragraph 559.4 of its Closing, and as acknowledged by the SFO in oral closing at Day 46/105-106). Due to the absence of Mr McCarthy and any express document, there is no direct evidence on this. However, it is a fair inference, and I accept, that Mr Alderman did learn of this call and its contents. He must have appreciated (to the extent I have found Mr McCarthy did) that Mr Gerrard was again speaking without authority and/or against his client’s interests, or at least was reckless as to this.

As will be obvious from the facts here, all of the breaches of duty found in relation to Mr Gerrard were at least reckless.

For the avoidance of doubt, I should add that in relation to DC5, DC6 and DC7, the fact (as I have already acknowledged) that ENRC makes no positive claim against the SFO through Mr McCarthy himself, as it were, does not affect its ability to make the claim against Mr Alderman on the basis of information received from Mr McCarthy (see paragraphs 217-218 above). Nor does it affect my finding that Mr Alderman’s state of mind as to the relevant information was the same as Mr McCarthy’s (see paragraphs 554, 575 and 582 above and below). Further, and as already noted, the SFO could have called Mr McCarthy if it wished, but did not do so.

It is necessary here to interpose the fact of the first “open” meeting between the SFO, ENRC and its lawyers. It took place at the SFO’s offices, then at Elm House, on 3 October 2011. Present were Mr McCarthy, Mr Alderman, Mr Ehrensberger, Mr Gerrard and Mr Richards. For present purposes it is sufficient to refer to the note of the meeting by Mr McCarthy. I set out the material parts of that note as follows:

“BE stated that ENRC had taken the letter from SFO very seriously and that the Board were keen to ensure that as a Company they are fully compliant and that governance is properly applied across the group. The tone from the top is very serious. They discussed the issues at the Board meeting last week, which was also raised with the Audit Committee…

BE made it plain that he had only accepted the position if he could be sure that he had the full support of the board and that compliance matters were transparent…

Sion Richards (SR) stated that ENRC had asked Jones Day to undertake a full review of the company. They had been asked to focus on BA 2010…

The SFO invited Neil Gerrard to explain his role (NG). NG confirmed that he was appointed by the Audit Committee as part of their investigative policy. He was initially engaged following a whistleblower (anonymous) covering a number of areas.

A forensic analysis is taking place. They were reviewing a number of emails and DPA issues in Kazakhstan. They had been undertaking interviews and NG was looking to close enquiries in November. He will report to the company around his findings and the company were concerned about what exactly the SFO were worried about and where its focus was centred…

The SFO made it clear that if the company were to make a self disclosure it would be able to manage its discussion with the US Department of Justice…”

ENRC contends that there were discrepancies between how matters, or individuals or firms, were described here, as opposed to how they had been described in (as I have found them)DC4 and DC5. ENRC says this, in part because Dechert and the SFO had contended that broadly speaking, what was said earlier corresponded with what was now said at OM1. The SFO makes some general points here. First, it said that the notes taken of DC4 and DC5 (but later ones as well) were often very brief and might not give the full picture, which only emerged at the OMs. I see that but I do not think one can generalise. There may be a clear discrepancy which cannot be explained away like that. Secondly, the SFO submitted that matters referred to at a DC might later be updated at an OM (or vice versa). That is possible, but again, it is difficult to generalise.

The first alleged discrepancy here concerns the role of JD, presented at OM1 as the firm doing a “full review of the company”; compare the previous references in DC4 and DC5 to JD being “too close” and “friction”. I think there is a tension here. The SFO says that the difference is explicable because JD is being asked to do something different here, namely a review in relation to ENRC’s governance etc, not its past dealings in Africa. However, looked at objectively and in particular from the perspective of the SFO, it looks odd. And the review going forwards would include Africa anyway.

The second alleged discrepancy concerns DOJ involvement and the previous reference to it in DC4. I do not think there is anything in this, because the SFO said at the meeting that it could manage ENRC’s discussions with the DOJ if it engaged in self-disclosure. That assumes that there was or might be DOJ involvement.

Next, I think there is a tension between Mr Gerrard’s references in DC4 and DC5 to his advising ENRC that he had serious concerns and that it needed to understand the “big problem”, and the statement at OM1 that, while there were active investigations following WB1, it had not yet been determined whether there was any substance to it (though this was in fact true). Equally, there is a tension between Mr Ehrensberger’s reference to the “tone from the top”, with ENRC as a whole taking all of this very seriously at Board level and at the AC, along with him saying that he only accepted the position of General Counsel if he had the full support of the Board and with transparency in compliance matters (suggesting that this was indeed so), all compared with what Mr Gerrard had said previously.

Finally, it is said that it was a “charade” for Mr Gerrard to be asked to explain his formal role to the SFO when in effect they already knew what it was. That might be true if both DC4 and DC5 were unauthorised meetings. But as a meeting, DC4 was authorised expressly by ENRC. It could therefore be expected that Mr Gerrard would at least say that he was acting for ENRC. Given that, and that at the forthcoming OM1, the SFO would naturally want a full description of his role, I do not see this as a meaningful discrepancy.

The discrepancies which I have found indicate the significance of Mr Gerrard’s prior statements to the SFO in terms of them being in breach of duty, because it shows how he was saying something different in a “public” forum. So it is additional evidence against him.

As for the SFO, I do not consider that there was a separate breach of duty in it not mentioning the earlier contacts or in not correcting the impression they had previously been given, assuming what was said at OM1 was correct. The SFO was not acting for ENRC, Mr Gerrard was.

However, on the basis of OM1, I consider that Mr McCarthy and Mr Alderman must have had a heightened sense (going forwards) that Mr Gerrard was someone who indeed might say things to them which he was not authorised to say and which were not in his client’s best interests.

On 6 October, Mr Ehrensberger wrote to Mr McCarthy and Mr Alderman to say that he would discuss the matters raised at OM1 with the Board and senior management at ENRC and its advisers, and would revert to the SFO “shortly”. Mr Ehrensberger also authorised Mr Gerrard to contact the SFO to find out how they thought the meeting had gone.

On 7 October, there was a telephone call between Mr Gerrard and Mr McCarthy. Following that call and on the same day, Mr McCarthy sent an email to Mr Alderman as follows:

“I have just spoken to Neil G and he has confirmed that our tactics worked and the main Board are to meet early next week and company will make a voluntary disclosure to us next week. The voluntary disclosure will come through Neil G acting independently of Jones Day (who were originally asked to do the compliance review as explained when we met them) on behalf of the audit committee and main Board.

A full forensic audit of the Books and records will be undertaken. Neil G has said that he would like to talk about the work going forward and its structure, after next week, particularly once he has a clearer picture. He indicated that there were lots of red flags and ‘lots to tell’”

Mr Alderman’s response was “excellent” and then a few minutes later, he emailed:

“But don’t forget the public statement of commitment by the Board.”

Mr Gerrard’s only written communication to ENRC about the telephone call was his email to say that the meeting “was a good discussion and achieved our purpose.” He then briefed Mr Ehrensberger about it the following Monday. Neither he nor Mr Ehrensberger could recall exactly what he said, although he accepted that when reporting to Mr Ehrensberger he might not have used the language actually used in his call with Mr McCarthy (as recounted by Mr McCarthy in his email). I am sure that he did not.

On 10 October, Mr Gerrard also told JD that he had discussed with Mr Ehrensberger a call he had had with Mr McCarthy and that (I infer) the SFO were comfortable with the meeting. Mr Ehrensberger wanted to emphasise that he wished to do the right thing and they were happy with that. Mr Gerrard may well have made that last point to the SFO which, by itself, is innocuous enough.

As to the actual content of Mr McCarthy’s email, I refer first to the point about “our tactics worked”. I agree that this was probably a reference by Mr McCarthy to the SFO’s tactic of sending the SFO Letter, saying what it did at OM1 and so on, in order to get ENRC to engage with it. Confirmation by Mr Gerrard of the SFO’s tactics does not seem to me to be a breach of duty on his part, and it was not unlawful for the SFO to record that.

As for the references to a voluntary disclosure “next week” and the disclosure coming through Mr Gerrard and the audit of the books, Mr Ehrensberger said that these remarks were not authorised and indeed formal decisions in that regard had not yet been taken. It may be that not much turns on this (and indeed a more detailed picture was presented at DC7) but Mr Gerrard was clearly going further than instructed and he must have known that. Mr Gerrard’s response to this in cross-examination was to invoke the notion of being entitled to “manage the SFO as best I could”. That does not assist, in my view. Here, Mr Gerrard was telling the SFO that the Board was to meet and that there would be voluntary disclosure the following week.

As for reference to red flags, it is said that this was innocuous, since Mr Richards had already referred to them (without objection from Mr Ehrensberger) in OM1. That is true, but context is everything. To say that there were lots of red flags and also “lots to tell” implies that Mr Gerrard had found matters of serious concern which might not be the same as or limited to the matters mentioned at OM1, otherwise why say this? It is rather like a conspiratorial (in a non-legal sense) whisper. It was not in ENRC’s best interests to say this sort of thing and Mr Gerrard knew it.

Accordingly, Mr Gerrard was clearly in breach of duty in respect of DC6.

As for the SFO, Mr McCarthy (and Mr Alderman) could not be supposed clearly to know that Mr Gerrard had no authority to provide the information about disclosure and the Board meeting or that it was necessarily inaccurate, or being reckless as to that fact. But as to the references to red flags and “lots to tell”, I do think that Mr McCarthy could not possibly have seen Mr Gerrard as being authorised to say this and the same goes for Mr Alderman’s receipt of the information. Accordingly, there was a relevant breach of duty on the part of the SFO here.

Again, all the relevant breaches of duty here were at least reckless.

There are no notes available of this call. However, Mr McCarthy later emailed Mr Alderman about it as follows:

“I have just spoken to NG on telephone.

He has confirmed that our meeting truly shook the company. They have an extraordinary Board meeting on Tuesday and will in his view agree to enter the Self Disclosure process. NG stated that they will be writing to us on Wednesday next week to confirm formally.

On a separate matter NG raised a ‘hypothetical’ issue concerning a large multinational, who he said may have approached him, that might be upset with the behaviour of a ‘white collar’ law firm in dealing with SFO enquiries. The hypothetical company were being advised to prevaricate rather than assist. I told NG that he should seek to speak with you personally on a hypothetical basis to discuss matters informally, (certainly before the 26th October).”

I have dealt with the second paragraph (relating to the Alstom matter) in paragraphs 459-465 above, and it is not relevant here.

The reference to the Board meeting and Mr Gerrard’s opinion that they would enter the SR process was inappropriate since he was there to represent his client not to give his own view on what the client might do.

But the key phrase is where he said that it “truly shook the company”. There is no basis to assume (or for Mr Gerrard to assume) that he could relay this to the SFO even if it were true, indeed, especially if it were true. It gave the impression that the company was very worried about the SFO’s interest in it and what the SFO said it wanted, at OM1. Even if the phrase suggested that ENRC would now start to play ball, it is highly prejudicial in my view, and clearly was not in its best interests.

In making those references therefore, Mr Gerrard was again in knowing or reckless breach of duty.

As for the SFO here, Mr McCarthy (and Mr Alderman) must have appreciated that the first statement made by Mr Gerrard was not authorised, especially as it included his assessment that the company was “shaken”. As for the second, again, it was his opinion as to what the company would do. Accordingly, I consider that there was, again, a knowing or reckless breach of the Independence Duty on the part of the SFO in receiving that information.

On 9 November, Mr Ehrensberger emailed a letter to Mr McCarthy and Mr Alderman as follows:

“I refer to my letter of 5/6 October 2011 and to the subsequent discussion between Mr McCarthy and Mr Gerrard of Dechert LLP.

As Mr Gerrard has explained, I have discussed the matters raised in our recent meeting with ENRC's Executive Committee. I also met yesterday with ENRC's Board of Directors, to seek their approval of a proposal to a) conduct certain further reviews of operations and b) to engage with the SFO regarding the results of those reviews. Although the Board meeting did take slightly longer to organise than originally envisaged, I am pleased to confirm that the ENRC Board members were entirely supportive of my proposal.

I would therefore be grateful if you could let me know any suggested dates from 10 November when you would both be available for our next meeting.

In the meantime, if there is anything further you wish to discuss, please contact me directly and I

will make myself available.”

(“the 9 November Letter”)

Two hours earlier, Mr Gerrard had called Mr Alderman, whose note said: “9.11 N.G Letter coming”. That much was accurate and by itself simply indicates that a solicitor had called to say that a letter from the client was on its way. That is not necessarily unauthorised nor is it prejudicial. In fact, Mr Ehrensberger accepted that he may have authorised Mr Gerrard to contact Mr Alderman anyway and Mr Gerrard said the purpose was simply to pass on the news of the forthcoming letter.

However, ENRC says that the call lasted 7m 46s and so Mr Gerrard could not just have been announcing the arrival of the letter. I agree, but to say that there must have been a conversation in which Mr Gerrard was bound to have been denigrating his client further is just speculation. Moreover, since Mr Alderman made a note, one would have expected it to refer to other matters discussed, if they were material.

In my view, no claim is made out against Mr Gerrard or the SFO here.

The next open meeting (OM2) was scheduled to take place at 3.30pm on 30 November. In the morning, Mr Thompson returned Mr Gerrard’s call.

Mr Thompson’s manuscript note of the call said this:

“Update from NG prior to meeting 12:55 call

Do want to self report

Tone from the top message—bit dilatory in doing this—slow to pull their finger out

Need to do it properly if we go down this route

 Need to be full + frank on all issues

Emphasis on Africa but other jurisdictions which they should come clean on all issues (tho NG does not know this officially and may be kept away from it)

Would resign if this continues as he does not wish to get drawn into a compromised position

 Need to make the position clear to the company that full + frank disclosure is required and consequences of not doing so

(contemporaneous note following me returning call of Neil Gerrard to Keith McCarthy)”

He later made a formal file note. It was more or less the same, although it did not refer to Mr Gerrard not knowing “officially” about problems in other jurisdictions and that he might be kept away from it. Ms von Dadelszen also made a note of what Mr Thompson told her and Mr Alderman following the call, at 3 pm the same day, i.e. just before the meeting. Although Mr Gerrard was cross-examined on the basis of the file note and others on the basis of the original manuscript note, I do not think that anything turns on this; nor do I accept that the file note is a better record than Mr Thompson’s immediate original note.

The underlying message from Mr Gerrard was that ENRC was being slow in getting out the “tone from the top” message although it wanted to do the SR. But there was a question-mark over whether ENRC was being full and frank which was threatening to compromise Mr Gerrard’s position as their lawyer. Therefore, he needed the SFO’s assistance in giving a very clear message to ENRC about the importance of being full and frank. I think the words “if this continues” were not simply noted in error. They suggest that there had already been a lack of full and frankness, as it were. And the reference to “may be kept away” suggests that Mr Gerrard would not be given proper access to relevant information.

Mr Gerrard did not accept that he said all of these things but here, I prefer Mr Thompson’s note. After all, Mr Gerrard made no note of his own.

What Mr Gerrard said was clearly against ENRC’s interests because he said he felt he was being professionally compromised. He could not possibly have had authority to say this. The fact that Mr Ehrensberger had said (at OM1) that effectively, he could not work at ENRC unless it was open and transparent does not affect the significance of what Mr Gerrard said here or his authority to say it. It is one thing for a Board member or executive officer to say something like what Mr Ehrensberger did as an assurance; it is quite another when a solicitor is saying that he was or could be professionally embarrassed.

I can understand that Mr Gerrard’s motive here may have been to get the SFO to assist him in retaining his professional position by sending the appropriate message. But that does not change the character, objectively, of what he said. And of course, there was always the risk that the SFO might thereafter take with a pinch of salt the assurances which ENRC gave. Mr Gerrard did not report this conversation to ENRC at all. In my view, that was for the obvious reason that he could not do so without incurring the client’s ire to say the least.

This is of course the first DC where the relevant officer has actually given evidence in the trial i.e. Mr Thompson. It was the first time that he had spoken to Mr Gerrard.

Mr Thompson was asked in cross-examination about why his later file note, or what is recorded he told Ms von Dadelszen and Mr Alderman, did not contain the information recorded in the original manuscript note. He said perhaps it was because he thought they were not important (like the references to Mr Gerrard not knowing “officially”). I do think, however, that there was an element of sanitisation. So, the “not knowing officially” phrase becomes “emerging evidence” and the resigning if “this continues” becomes “if he felt the company was compromising the process”. And there is no reference to being kept out of the further investigations.

Mr Thompson maintained consistently in cross-examination that he did not think at the time that Mr Gerrard was clearly acting against his client’s best interests or was not authorised to say what he said. Mr Thompson saw the overall tone of what Mr Gerrard said as “help me to help ENRC” and was, in that sense, innocuous. He said that he now agreed that with hindsight, Mr Gerrard was unlikely to have had his client’s authority to say what he did but he did not interpret it like that at the time.

I am afraid that I think Mr Thompson’s account now, of what he thought then, is not accurate. Mr Thompson is clearly highly intelligent and he was also experienced. If he is told something by a solicitor for a party now engaging with the SFO that he does not know “officially”, it is impossible to see how he could have thought that the solicitor was authorised to say it at the time. In this regard, I do not accept Mr Thompson’s attempts at explaining away the use of the word “officially” to which I was referred (Day 37/147 and 163). Indeed Mr Thompson did accept that what Mr Gerrard did not know officially, he must have found out unofficially, and if so, his client did not know that he knew. When Mr Thompson was then asked if so, how could his client have authorised him to tell Mr Thompson, the latter said that he may not have known the particular point but might have been kept away from it. He recalled Mr Gerrard meaning that he might not be tasked with investigating the full scope (See Day 37/163-164). I do not consider that to be a persuasive answer.

Nor is there anything in the point that the reference to what Mr Gerrard knew “unofficially” is unimportant since there had been previous references to problems in other jurisdictions. First, in context, this must be a reference to jurisdictions other than Africa and Kazakhstan both of which were already being canvassed with the SFO. Second, the point is that Mr Gerrard said that he was being “kept away” from these matters and that “if this continues” he would resign.

As for Mr Gerrard’s thoughts about his own professional position being compromised, it is equally impossible to see how Mr Thompson could have thought this was authorised. Mr Gerrard, as it were, was putting himself apart from his own client.

In my judgment, Mr Thompson did know that Mr Gerrard was not authorised to say what he did or, at best, he strongly suspected he was not authorised but chose not to consider it further. He was happy, at the time, to receive this intelligence on ENRC. Whether, by itself, it would prove useful to him, and in particular whether it could actually be used against ENRC in any investigation or proceedings, is another matter.

On that basis, there was a knowing or reckless breach of duty on the part of the SFO as well as Mr Gerrard.

At this meeting were Mr Alderman, Mr Thompson, Ms von Dadelszen, Mr Gerrard, Mr Richards, and Mr Ehrensberger. For present purposes I refer to Ms von Dadelszen’s file note. The following elements are significant for present purposes:

“…BE took those messages back to both the executive committee and the board, both of whom are fully committed to the process. There is a newly appointed senior independent director — Mehmet Dalman — who has taken responsibility for this area…

NG said that ENRC have literally an army of advisors on bribery act systems and procedures. The tests that have been undertaken on those systems have raised red flags. The company are keen to tackle the issue and be full and frank…

BE: the company are ready to deal with this. It has already started. It wants to get procedures right. That message comes from the CEO and the board…

NG said the specific work being done in Kazakhstan concerned an allegation from a whistleblower regarding SSGPO (a subsidiary). A large number of people are alleged to be involved. It is a corruption and fraud allegation. NG has not seen any substantive evidence confirming the allegations yet…”

In cross-examination, Mr Thompson accepted that he could see there were discrepancies between what was said at this meeting and what he had been told in DC8. But he did not think that for Mr Alderman to express his satisfaction with ENRC, given what he knew, was a charade. Equally, he did not accept that Mr Gerrard was earlier undermining the message now being given by the client, when he had said a short while earlier that he may have to resign. I found this unrealistic. I appreciate that Mr Thompson said very little if anything at the meeting, unsurprisingly because Mr Alderman was there and took the lead. Mr Thompson was also new to the ENRC case. But I do not think that this made any difference to what he knew or suspected. But if (contrary to what I have found above) Mr Thompson had not already appreciated that Mr Gerrard had been speaking without authority at DC8, he must have appreciated it by the end of OM2.

This appeared on 9 December. I deal with it in detail at paragraphs 1381-1405 below.

On 12 December, Ms von Dadelszen called Mr Gerrard and left a message for him to call her. He did so on 13 December. Her note of the conversation says this:

“Spk to Neil 16:39 13/12/11 …

good opportunity for company

appetite in SFO to see company improve re corporate compliance

Split in co to co-op or not

Jones Day force for good but they are involved in deals

Shouldn’t be economical

Client put more pressure re scoping—Jones Day were involved in deals

Audit committee—odd at ENRC

Weird situation

Either one or both to meet

[?]—quiet meeting

falsification + destruction of docs

Beat - mergers + acquisitions”

She said in evidence that she would have discussed the information she later noted with Mr Thompson, and as someone clearly junior to him, that seems likely. For his part, Mr Thompson was not sure if she told him about the call but thought it probable. He did not positively deny it, and I proceed on the basis that she did. Indeed, the follow-up meeting being DC10 (the “quiet” meeting) only makes sense if Mr Thompson knew that she had had a conversation with Mr Gerrard. Moreover, Mr Thompson specifically agreed that Ms von Dadelszen would have told him about the reference to JD and that she would not have held anything back from him. He also said that the call to Ms von Dadelszen probably should have been in his policy and event log although in the event it was not. All of this is important because, as already noted, ENRC makes no claim against Ms von Dadelszen, only Mr Thompson.

So far as Mr Gerrard is concerned, I consider that he was plainly saying things which were not in his client’s best interests and for which there could not have been any authority; certainly, when those things are taken together. I say that, notwithstanding the facts of the December Article and Mr Ehrensberger’s conversation with Mr Thompson the previous day (see paragraph 1387 below).

In particular, for ENRC’s solicitor to say there was a split over the question of co-operation was detrimental to its interests. So is making (or reinforcing) the point that JD had been involved in the deals (in fact there was only one where they were clearly involved - Chambishi). The reference to “Shouldn't be economical” I think is to being “economical with the truth” rather than the scope of ENRC’s investigation being economical. As such, it is not so significant, since the need for frankness had been previously emphasised. The next point, about client pressure on scope, does refer to the investigation. Then one has the reference to the “odd” AC and a “weird” situation. As to references to falsification of documents, while that could have been a reference to those parts of the December Article which refer to this, the article had already been discussed in the previous days. Mr Gerrard sought to defend the reference here by saying that what he said was true: there had been falsity and destruction of documents. Quite so, but that does not mean he had authority to refer to it, indeed the reverse in fact. The reference to “Beat and mergers” suggests that it was Mr Ehrensberger’s personal involvement in some of them which implied a question mark over his independence. At one point, Ms von Dadelszen thought that it might have been a reference to Mr Ehrensberger not being an M&A specialist but I do not think this is right.

As for the SFO, although not herself a target of the claim, Ms von Dadelszen accepted that the references to JD were plainly against the client’s interests and equally so if Mr Gerrard was trying to suggest (as I find he was) that the client was trying to limit the scope of the investigation; she also accepted that it was unusual to use phrases here such as “odd”, “weird” and “split”. Finally, it did not appear to be in the client’s interests to refer to the falsification of documents as it could prompt a raid. She also accepted, realistically, that part of what was going on here was Mr Gerrard seeking to improve his position with the SFO. Finally, the reference to a “quiet meeting” clearly suggested a meeting between the SFO and Mr Gerrard alone.

It is said that the cross-examination of Ms von Dadelszen was “context-free” in the sense that it did not make reference back to what had been said in the December Article which, in re-examination, she said she would have read or the conversation she had had the previous day. Quite so, but that takes the matter little further. She was not asked in re-examination about the context for the reference in her note to falsification. I am not prepared to infer that her note should be read as a reference to Mr Gerrard simply speaking about the December Article.

For his part, Mr Thompson did not accept that, at the time, he thought there was anything said which was plainly against ENRC’s interests although he accepted with hindsight that it could be said that Mr Gerrard was seeking to disparage Mr Ehrensberger. As for the disparaging of JD, Mr Thompson said that the SFO had already concluded that they were conflicted, and in that sense, what Mr Gerrard said was not new. But in my judgment, it is not simply about whether the information or communication was new. It is also about who was saying it. See paragraph 528 above, in the context of knowledge drawn from the press. Nor is it an answer to say that the references to falsification and destruction of documents were not plainly unauthorised, in the eyes of Mr Thompson, simply because of the December Article. Again, it all depends who is saying it. The same goes for the references to the “odd” AC, the “weird situation” and the client putting on more pressure about scoping. It is also very hard to see how Mr Gerrard could, in the eyes of Mr Thompson, have been authorised by his client to say that it was split on the question of co-operation. Finally, to the extent that Ms von Dadelszen accepted that there were matters referred to which were plainly against ENRC’s interests (see paragraph 609 above) that is itself some evidence of what Mr Thompson must have appreciated at the time, he being more experienced than her and having had more senior roles at the time. In my judgment, these were all matters which, at the time, Mr Thompson knew or suspected Mr Gerrard could not have been authorised to say. I do not accept that Mr Thompson only realised now that what Mr Gerrard said at the time was clearly against his client’s interests (to the extent that he conceded this much).

I view all of this, of course, in the light of what I have already found in relation to DC8 and OM2. This was really more of the same. I accept that Mr Thompson may not have given credence to everything which Mr Gerrard said and indeed he accepted that Mr Gerrard was prone to making grandiose statements. But the information communicated here was not so much overstatement (in the sense of boasts, for example) but information that simply damaged ENRC's standing in the eyes of the SFO. As with the earlier DC4, ultimately it might go no further than being useful background intelligence but that does not mean that Mr Gerrard was not plainly unauthorised when he said it.

Further, even if Mr Gerrard was seen by Mr Thompson as trying to show that the SFO could trust him in this engagement (because he was, in effect, prepared to share “secrets” with the SFO) and so this was to the ultimate benefit of ENRC, that does not affect his authority or how Mr Thompson must have viewed it at the time.

ENRC put the case in respect of Mr Thompson’s motives in acting as he did here as being to get the necessary material to achieve a speedy settlement. I would not go that far. First, I am far from clear that the SFO actually “banked” this information for a possible settlement. Second, it was not likely to be speedy. Third, the initiative for making these remarks came from Mr Gerrard as was always the case, not the SFO calling him in. However, I do not need to accept ENRC’s thesis here in order to find Mr Thompson was knowingly or recklessly taking the information from Mr Gerrard.

Accordingly, I find that there was at least a reckless breach by the SFO as well as by Mr Gerrard.

I should add that the SFO contended that quite apart from the substance of what Mr Gerrard said to Ms von Dadelszen (which it has fully addressed) there was no pleaded cause of action in relation to Mr Thompson on the basis of her note being communicated to him. I do not think there is anything in this point. The 2009 POC makes claims against the SFO in relation to DC9 and of the three individuals pleaded (Mr Alderman, Mr Gould and Mr Thompson) here, it could only be Mr Thompson. More importantly, Mr Thompson was fully cross-examined not only about Ms von Dadelszen relaying the call to him (see above) but also about the substance of what Mr Gerrard had said, as contained in her note. See Day 37/197-206. See also paragraph 561.3 of ENRC’s Closing. So there was and is no reason for me not to deal with DC9 on the basis of Ms von Dadelszen’s note as against Mr Thompson. In that context, it was proper for Ms von Dadelszen herself to be asked about her reaction to what the note said and Mr Thompson in turn to be asked to comment on it.

This was the “quiet meeting” heralded at DC9. There was a question as to why the Crowne Plaza was chosen as a venue. It was suggested that Mr Thompson had given false evidence in the Privilege Proceedings because he said there that it had been chosen as being halfway between Mr Gerrard’s offices and his own, when in fact it was much nearer to the Dechert offices. I do not think that much turns on this geographical question. The suggestion of a meeting outside of their offices came from Mr Gerrard. I suspect this was because he preferred to have it away from Dechert’s offices in order to be less visible and Mr Thompson was quite happy to go along with that. Mr Thompson accepted in cross-examination that it was chosen by Mr Gerrard as a venue for a quiet meeting where he could talk in private.

The meeting took 1½ hours. Mr Thompson’s own note is less than one page of manuscript. He told Ms von Dadelszen of the meeting and she made a note of what he said was discussed. It was on 1½ pages of manuscript but more importantly referred to significant matters which were not included in Mr Thompson’s own note. Her note, which is the better one to work from, is as follows:

“[…]

Attritional battle to persuade [the] board that this is right way to go.

Change their mind regularly

Described key findings […]

Provided [with] backdated paperwork

Obstructed […]

President of that company at heart of it

Russian trading system—started again. Supposed to have been sorted out in 2007. 24% of sales are missing. Russian office operates intermediaries for insiders to skim profits.

African issue—Camec, CAMROSE, Rautenbach…

UN sanction breaches in there.

Not going to be wrapped up quickly […]

Timeframes? No comment

Nothing about commitment to anti-corruption…. ”

Mr Gerrard did not report this meeting to ENRC. It was unauthorised. He suggested it was in fact the scoping meeting mooted at the end of OM2, but that was clearly wrong. The scoping meeting came the following day, being OM3. Dechert also suggested that it was a simple pre-meeting to assess the SFO’s concerns and expectations but that is clearly not correct either. It was all about Mr Gerrard telling things to Mr Thompson.

In my judgment, there was a clear breach of duty by Mr Gerrard. As noted by Ms von Dadelszen, what Mr Gerrard said was highly damaging to ENRC’s interests.

In evidence, Mr Thompson said that his note was short because there was not a lot of factual content, but that is not very realistic if one looks at Ms von Dadelszen’s note. He could not explain why there was content in her note which was not in his own. That said, I do not accept the suggestion that Mr Thompson deliberately kept out of his own note material which he knew Mr Gerrard should not have told him. If that was his motive, he would not have relayed that information to Ms von Dadelszen who (as he would have expected) noted it. Indeed, Ms von Dadelszen thought that they were probably face-to-face when Mr Thompson relayed the conversation to her, in which case, he would have seen her take the note.

Mr Thompson (again) made the general remark that in hindsight he was a little naïve in his dealings with Mr Gerrard, and would now accept this in relation to not spotting that some of his assertions were probably “over the line”. However, I think this is more of the same from DC9 so far as Mr Thompson is concerned. The fact that it was indeed a “quiet” meeting (wherever it was) suggested that Mr Gerrard wanted to say things relating to ENRC that he might not say with them present.

I agree that some of what Mr Gerrard said was reflected in the December Article. But, as already stated, that does not mean that when said by the solicitor, it has no value and can be disregarded. Also, statements about an attritional battle are very different from Mr Ehrensberger’s assurances at OM1 that the tone from the top is serious. The SFO submits that such references are nonetheless not significant since they do not differ from what Mr Ehrensberger had told Mr Thompson on 12 December following publication of the December Article. I do not agree. It is true that Mr Ehrensberger said there that he had got the Board to agree to self-report and thought that someone may not have agreed and tried to obstruct it by going public. But he went on to say that they were determined to eliminate the leaks and he still had full support for providing ENRC’s investigative findings and putting adequate procedures in place. Mr Gerrard’s later references to an attritional battle and the board changing its mind regularly are not consistent with that.

Equally, when coming from Mr Gerrard, I think that the reference to “UN sanction breaches in there” was plainly damaging to ENRC in Mr Thompson’s eyes, irrespective of what prior intelligence the SFO had. Again, this was now coming from its solicitor. Mr Thompson’s take on it, in evidence, was that “it wasn’t a sort of active, sort of live problem”. But if that is right, I cannot see why Mr Gerrard mentioned it.

I do agree that at OM3, on the following day, sanctions were discussed. Indeed, Ms von Dadelszen had put them on her discussion list following DC10 - see paragraph 1253 below. At that point, it can be said that this issue was now public as it were. But it does not affect the nature of what Mr Gerrard had said the day before, in my view, or how Mr Thompson must have viewed it then.

So here again, I consider that there was a knowing or reckless breach of duty in Mr Thompson taking this information from Mr Gerrard and by Mr Gerrard in communicating it.

However, as for the references to time-frames or no commitment to anti-corruption, I do not think that they add very much. Anyway, Mr Thompson and Ms von Dadelszen both saw this as referring to Mr Gerrard not having said anything about anti-corruption. I do not see any breach of duty in this respect.

This followed the Crowne Plaza meeting and it was Mr Alderman who called Mr Gerrard. Mr Alderman’s note says as follows:

“Neil Gerrard

Co knows it is not SFO briefing press

Confidential—Audit Committee to be more involved

in what is happening

Issues—Africa—3 [areas]

red flags re books + records—Africa

v odd lge consultancy with no paper

Kazakh inv [1] docs etc

Russian issues”

Mr Gerrard may well be correct in saying that the reason for the call was for Mr Alderman to obtain a “heads up” as to what would be discussed at the OM the following day. But what followed was clearly without ENRC’s authority in my view, which is reflected in Mr Alderman’s reference to “confidential”. I think this must mean Mr Gerrard telling him things “off the record” as it were. Indeed, it is odd, in my judgment, to say that Mr Alderman really needed a “heads up” since the SFO would hear what ENRC had to say (and disclose) the following day. Mr Thompson himself thought it very odd for Mr Alderman to be directly involved like this and especially without informing the Case Team.

In my judgment, Mr Gerrard was again acting in breach of authority as indicated by the use of the word “Confidential”. So far as Mr Alderman was concerned, he must have known that, too. That said, I consider these to be relatively minor breaches of duty given what came out the following day.

OM3 occurred on 20 and 21 December. Some time was spent on explaining changes to ENRC’s internal reporting structure in relation to the investigation. FRA had done a books and records review on Camrose revealing some “bizarre” payments. The different elements of the Africa investigation were identified and Mr Gerrard said that he would have something “within a month or two” i.e. by February 2012. Mr Gould said that there should be a presentation to the SFO by the end of February 2012 and Mr Gerrard agreed, saying it would deal with the investigation review plan, milestones and a timetable going forward. On that footing, there would not necessarily be a definitive report in the sense of wrongdoing for the purpose of SR and a civil recovery. But there would be some sort of report. A possible resurgence of the RTS and the Education Allegation (see paragraphs 959-960 below) were also mentioned. On 21 December, mention was made of a forthcoming SAR report in relation to the imminent plan to buy out Mr Gertler.

OM4 was on 5 March 2012. Some of the information provided (for example in respect of WB1 and the Education Allegation) had been largely mentioned before. There was more detail about what the Kazakhstan investigation revealed. Details of the investigative work in Africa, especially by FRA, were given in particular relating to Camec, Camrose and sanctions. The next steps in that process were also established.

At paragraph 105 of his WS, Mr Thompson commented that this was essentially an update meeting and importantly, in paragraph 106 he said this:

“This was an aspect of Mr Gerrard’s presentations that became frustrating over the course of the meetings. There was a lot of talk of “red flags” and presentations that hinted at wrongdoing but lacked specificity. In order to reach a civil settlement, we needed to know details that could provide a proper foundation for one; in other words, there had to be a tenable argument that money had flowed into ENRC that was derived from crime. The last line of my note of the 5 March, 2012 meeting says “formal report/presentation by early June.” I think that at this stage we were hopeful that that report would be able to ground a civil settlement.”

That is a reference back to the essential nature of the SR and the fact that any possible civil recovery had to be grounded in the SR of proceeds of a crime.

On this occasion, Mr Gerrard and Mr Thompson met at the Yorkshire Grey Pub in Theobalds Road. This was not an appropriate place for a meeting which was clearly more than social. Mr Thompson accepted in hindsight that he should not have met Mr Gerrard there. In my view, he knew that at the time or shortly after, which is why none of his notes refer to the location even though he denied that was the case and even though on some other occasions, the venue had not been mentioned. Dechert suggested that the pub was a good idea because it would enable Mr Gerrard to get the SFO to “open up” more in an informal setting. I reject that suggestion. First, at least according to Mr Thompson, they were originally going to meet at Dechert’s offices earlier in the day. Second, as it so happens, very few meetings were in locations outside their offices. Third, if that was the motive, it was amateurish in the extreme. Fourth, in the meeting, it was Mr Gerrard giving information to the SFO not the other way round. The meeting itself was not authorised by ENRC.

Mr Thompson’s note reads:

“MT also confirmed that the information provided on the issue of possible sanctions breaches in the DRC had been helpful. MT and NG discussed further issues:

• Involvement of Salans and Philip Enoch (a Salans partner) in relation to the acquisition of Camec.

• The due diligence process adopted by ENRC in respect of the acquisitions of Camec and CAMROSE, including the existence of internal audit reports which spelled out some of the risks.

• The need for NG’s team to access the e-mail servers in London and Zurich in order to complete the investigation.

…

• Recent concerns found by NG in respect of an expensive excavator purchased by an ENRC company which appears to have already been owned and was also in a non-operative condition.”

Reference to the due diligence process, including the existence of internal reports, could not have been authorised. I agree with ENRC that this was a particularly egregious breach of duty on the part of Mr Gerrard as only the day before, in the SIC meeting he had said:

“SFO worry that the board are wilfully blind. They haven’t seen… Fortunately not seen Pine + Crete [ie the HS reports on Camec and Camrose] or Audit reports [ie reports on those transactions produced by IA]. If they did we have a problem.”

ENRC refers to what was contained in various draft speaking notes for the SIC meeting and an inference therefrom that Mr Gerrard was positively prohibited from referring to internal reports. But it does not need to go that far; Mr Gerrard was plainly opining at that meeting that it would be counter-productive if the SFO were alerted to them.

I reject Mr Gerrard’s evidence that it never occurred to him at the time that any of his statements were contrary to ENRC’s interests. Indeed, and as with a number of the meetings, on analysis, if all that Mr Gerrard said was innocuous and/or had already been said, it is very unclear why he wanted to meet an SFO representative at all.

As for Mr Thompson, the key point of the information said to have been plainly against ENRC’s interests is that concerning the internal reports. Mr Thompson’s evidence was that he did not suspect any impropriety and just thought that Mr Gerrard was trying to show that there was a thorough investigation, and ENRC was being transparent. He, of course, did not know what the reports contained or what Mr Gerrard had opined about them the day before.

Given the informal setting and the fairly brief nature of the conversation, I cannot reject Mr Thompson’s evidence here. After all, the question of due diligence in relation to Africa had been raised at OM4 in the slide presentation. So, I do not find that Mr Thompson knew or suspected breach of duty on the part of Mr Gerrard here. Mr Gerrard’s breach was of course knowing or reckless.

This call took place the evening before OM5.

There is no note of the call itself but Mr Gerrard had prepared a speaking note. It reads thus:

“… (1) What to review?—All African acquisitions or just Camrose and one other.

(2)

Can you emphasise your main concerns i.e., have the purchase and loans been corrupt payments vs SOCA reports +other info—NGO papers etc 

(3)

The client is doubting the extent/thoroughness needed

 Take clients instructions

 Independently verify via - emails

- advisers

- consultants

- documents etc

(NB) There is a very real reluctance to allow us to look at - London servers

- African servers

- review internal docs

I think the Chairman understands but probably needs some help re

– how serious you view this…

– whats going to be reqd to settle

(4)

Endemic fraud & commercial corruption in Kaz

+ Education issue  corruption  red flag.”

In his WS, Mr Gerrard says that he had spoken with Mr Dalman and then made brief notes for discussion. But it was a short call with Mr Dalman and in evidence he could not recall if he had then reported back to ENRC after his call with Mr Gould. It was not put to Mr Dalman that he had heard back from Mr Gerrard. It is true that at the SIC meeting itself earlier that day, and according to Ms Coppens’ file note, Mr Gerrard had said there was a need to get clarity from the SFO about the extent of its concerns over the Africa transactions.

However, even on the assumption that Mr Gerrard had implied authority to ask that question of the SFO, I cannot see how item (3), down to the reference to the Chairman, once communicated, could begin to serve that purpose. Again, Mr Gerrard is volunteering information. This was obviously detrimental to the client’s interests and Mr Gerrard was clearly in breach of duty. The part of (3) dealing with the Chairman could be regarded as part of a brief to get clarity from the SFO and I would not say that Mr Gerrard was in breach of duty there. Item (4) was not put to Mr Gerrard and so I disregard it.

As for Mr Gould, he accepted that Mr Gerrard’s duty was not to reveal ENRC’s own doubts about the thoroughness required of the investigation and that Mr Gerrard was talking about privileged information which should not have been imparted to Mr Gould. There is no reason to suppose that Mr Gould did not understand this at the time. I do not accept that the client’s reluctance to permit access to the servers could legitimately be disclosed to Mr Gould on the basis that it did, or might, explain the delay in progress of the internal investigation.

Moreover, the significance of the reference to the client not giving full support was in contrast to what Mr Dalman said in OM5 the following day, which was that there would be full support. That was not what the SFO had been told the day before. The fact that, as a result of OM5, there would be renewed attempts by Mr Dalman to get that support, does not alter the position.

Accordingly, I find a knowing or reckless breach of duty here on Mr Gould’s part. This does not extend to item (4) which was not put to him.

At OM5 on 10 May, Mr Thompson stated that it was the SFO’s perception that “progress had been slow and that nothing substantive had been reported yet” and Mr Gould stated that the approach of JD and Mr Ehrensberger had been defensive and that they were too close to some of the transactions about which there were concerns (as recorded in Mr Thompson’s note of OM5).

ENRC alleges that both of these statements had been pre-agreed, wrongly, with Mr Gerrard in early May including, so far as Mr Gould was concerned, during DC13. It was in this context that the motive for doing so was alleged to be to further Mr Gerrard’s aim to expand the scope of his retainer; however, as already noted, that motive was not put to either of them.

As to the existence of any pre-agreement, Mr Gould accepted that on a “couple of occasions” he had followed suggestions made by Mr Gerrard prior to an OM as to what he should say at the OM. As for Mr Thompson, he accepted that his comment about a lack of progress may have been partly prompted by earlier conversations with Mr Gerrard, although he did not recall a particular “pre-agreement” for OM5.

As to the content of what Mr Thompson actually said, ENRC says it was clearly false because it was not as if any deadline suggested or contemplated in OM4 had been missed. On the other hand, there would have been a basis for saying there had been a lack of progress on what he had been told by Mr Gerrard - or Mr Gould relaying what Mr Gerrard had said. He thought it was in any event important to emphasise to Mr Dalman where the SFO stood.

As for the content of what Mr Gould actually said, he agreed that his view of Mr Ehrensberger being defensive had come from discussions with Mr Thompson and he knew the latter had spoken to Mr Gerrard sometimes. As for JD being “too close”, he said that if they had been involved as legal advisers in relation to suspect transactions, he would himself have regarded them as being too close. However, he also accepted that what he said in OM5 was due, at least in part, to what Mr Gerrard had been saying to him privately.

In my judgment, the above is certainly some evidence of what Mr Thompson and Mr Gould had previously been told by Mr Gerrard in previous DCs. However, I have more difficulty in concluding that what they said in OM5 was the product of some specific pre-agreement, which is what is alleged, especially as what they said was not manifestly false. Indeed, had it been, one would have expected Mr Dalman to have reacted with some surprise in OM5 which it seems he did not. And all the more so once the suggested motive for the “pre-agreement” has fallen out of ENRC’s case.

Overall, I am not satisfied that there were the pre-agreements as alleged and that being so, there is no breach of duty by Mr Gerrard, Mr Thompson or Mr Gould here.

This was the SFO’s first meeting with Mr Dalman, noted above. I have dealt with the alleged pre-agreements in paragraphs 649-655 above. Mr Thompson took the view that the purpose of the meeting was to meet Mr Dalman and get assurances from him. There was little by way of concrete new information. At paragraph 137 of his WS, Mr Thompson said that his view at that point was much as it had been in relation to OM4.

I have already made reference to the Depel Interview above in the context of the claim against Mr Gerrard. ENRC first became aware of its existence following the SFO’s disclosure on 30 October 2020.

I now deal with it in the context of the misfeasance claim made against the SFO.

Mr Depel was interviewed by Mr Thompson and Mr Elton on 16 May 2012 from 1:25pm until 4:30pm with a short break while tapes were being changed. The transcript of Tape 1 is at J8/288 and the transcript of Tape 2 is at J8/376.

ENRC’s pleaded case here is as follows:

“12.12A On 16 May 2012, the SFO (through Mr Thompson) issued Mr Depel with a notice, pursuant to s. 2A of the 1987 Act, requiring Mr Depel to attend an interview and to answer questions or otherwise furnish information and to produce documents, save for any information or documents protected by legal professional privilege. Shortly thereafter, the SFO (through Mr Thompson) interviewed Mr Depel over a period of about three hours (the “Depel Interview”). ENRC had no knowledge of the Depel Interview and had not authorised the disclosure by Mr Depel of material which was privileged to ENRC.

12.12B At the start of the Depel Interview, Mr Depel identified himself as a dual-qualified lawyer (US/English), who was ENRC’s Global Head of Compliance, with responsibility for ensuring ENRC’s compliance with laws in all of the jurisdictions in which it conducted business. Mr Depel further explained that he reported to ENRC’s General Counsel. From at least this point, the SFO (through Mr Thompson) knew that Mr Depel was an in-house lawyer at ENRC and that ENRC’s LPP should be protected. Alternatively, the SFO (through Mr Thompson) was subjectively reckless as to the need to protect ENRC’s LPP.

12.12C During the Depel Interview, the SFO (through Mr Thompson), acting with at least subjective recklessness: (1) induced, encouraged, or procured Mr Depel to disclose material protected by ENRC’s LPP; and/or (2) failed to stop Mr Depel from disclosing substantial amounts of such material. In particular:

12.12C.1 Mr Thompson repeatedly made inquiries of the circumstances and scope of Dechert’s instructions and investigation. For example, Mr Thompson asked: (1) (in relation to the period December 2010 to January 2011) “What was the scope of [Mr Gerrard’s] work at that stage?” [10]; (2) “Why do you think Neil hasn’t been able to … report these things to us more formally …” [16]; and (3) “Would this have been brought to Neil Gerrard’s attention” [34].

12.12C.2 Further, Mr Thompson sought to elicit material protected by ENRC’s LPP about the work carried out by various other firms of solicitors acting for ENRC, including Jones Day, Herbert Smith and Peters & Peters. For example, Mr Thompson said: (1) “… so what about … corporate advisers then … Jones Day as current corporate lawyers, preceded by Herbert Smith … and then obviously Decherts in … Neil’s team” [26]; (2) “… what else have Jones Day done?” [27]; (3) “Do you know who commissioned [the Peters & Peters Report]” [44]; and (4) “What were they [sc. Peters & Peters] doing a report on?” [39].

12.12C.3 In response to Mr Thompson’s questions, Mr Depel repeatedly referred to material protected by ENRC’s LPP, including in relation to:

(1)

the independence of ENRC’s directors [7];

(2)

the integrity of the Chairman of ENRC’s audit committee [8] [24] and ENRC’s head of internal audit [25];

(3)

the circumstances in which Mr Gerrard was retained, the scope of Mr Gerrard’s work (and how it changed over time) [35], the manner in which Mr Gerrard had conducted that work, certain advice provided by Mr Gerrard [32], and (alleged) difficulties Mr Gerrard had encountered [8]-[10], [12], [26];

(4)

the manner of production and/or the content of confidential reports produced by Mr Depel for ENRC (in particular its audit committee) [9] [25] [32] [47] [62] and ENRC’s reaction to them [19] [32] [67];

(5)

whether allegations contained in the 2010 Whistle-Blowing Email had been substantiated [11] [15] [16] [20];

(6)

how seriously ENRC took its obligations to comply with the Bribery Act [20] [77];

(7)

Mr Depel’s own advice to ENRC in relation to its compliance with statutory telecommunications and data protection provisions [22];

(8)

the types and general content of “relevant material and evidence” that would be found at ENRC’s London offices [24];

(9)

the advice that Jones Day had given in relation to ENRC’s engagement with the SFO (and Dechert’s advice as to its correctness) [27] and in relation to at least one corporate transaction [72];

(10)

the existence [27], approximate date [28], significance [27] and certain of the contents of the Herbert Smith Report;

(11)

the existence [44], contents [44], and action taken by ENRC upon receipt of the Peters & Peters Report [44];

(12)

Mr Depel’s own advice to ENRC in relation to its compliance procedures [55]; and

(13)

the way in which Dechert, Jones Day and Mr Depel drafted ENRC’s investigations policy [58]; and

(14)

Mr Depel’s own advice to ENRC on allegedly improper related party transactions [30] [57] [80]; and

(15)

Mr Depel’s own advice to ENRC in relation to sanctions issues [32] [35]; and

(16)

allegedly fraudulent insurance programmes [71]…

40.1A In the Depel Interview, the SFO (through at least Mr Thompson) induced, encouraged or procured Mr Depel to disclose material protected by ENRC’s LPP (and/or failed to stop him from doing so and instead recorded the same for subsequent use): see paragraphs 12.12B, 12.12C and 12.12E above. The SFO subsequently used such material in its investigation into ENRC. Accordingly, the SFO breached the LPP and Independence Duties…”

The SFO contends first, that none of the relevant information passed to Mr Thompson by Mr Depel in the Depel Interview was, or was by then, privileged. Second, even if it was, Mr Thompson did not know that it was nor was he reckless as to that fact.

Mr Thompson was cross-examined for much of the afternoon of Day 38 on the Depel Interview. He was not taken to every passage relied upon by ENRC. That is understandable given the time constraints.

Apart from other submissions made by the parties on this issue, Appendix 8B to ENRC’s Closing contains, in tabular form, almost 20 pages of excerpts from the interview which it says amounts to or contains privileged information. For its part, the SFO, at Appendix J to its Closing, sets out its response over 25 pages, dealing not only with the question as to whether the information was privileged but whether Mr Thompson was at fault in the misfeasance sense.

The table below is a truncated version of ENRC’s Appendix 8B to its Closing:

The above extracts are limited to those passages in the Depel Interview on which Mr Thompson was cross-examined. I consider that these passages are sufficient examples of the points which ENRC wishes to take, albeit that both its and the SFO’s Appendices have referred to other passages as well.

I have numbered each of the passages (“items”) relied on by ENRC and the total is 22. The individual items do not deal with particular topics in sequence, partly due to a lack of planning for the interview by Mr Thompson and partly because of Mr Depel’s discursive and unstructured answers and observations. What I have therefore done is to group passages (“items”) together where appropriate by reference, broadly, to their subject matter as follows:

I will in due course, consider those groups in that order. I will deal with whether the information was privileged and then with Mr Thompson’s state of mind at the time.

At this stage, I should note that the interview was summarised by Mr Thompson in his memo to Mr Gould dated 22 May 2012 (“the Depel Interview Memo”). It consists of 10 pages. I refer below to those points which have some relevance to the passages relied upon by ENRC and put to Mr Thompson in cross-examination:

At pp7-8 Mr Thompson set out the areas where the information provided by Mr Depel was consistent with other information held by the SFO including in relation to difficulties expressed by Mr Gerrard. Mr Thompson then set out at p8 points that might detract from Mr Depel’s credibility. He concluded thus:

“I have been involved in the meetings with ENRC since November 2011, and have reviewed all the intelligence and open source material we have. The interview of Mr Depel is a major development. Overall I regard the information he has provided as credible, as it is generally consistent with the other information available to the SFO.

The choice for the SFO is now whether to continue with the self reporting process. If Mr Depel is even partly correct, in my view it is inconceivable that a civil settlement would be an appropriate outcome. It seems to me that the overarching question is whether ENRC should be allowed to continue to access the UK capital markets when in reality those controlling the company appear to regard the UK's listing and corporate governance rules with contempt. It will not be an easy case to investigate and prosecute, but I recommend that the Director now considers adopting the case as a criminal investigation.”

Since the status of the information as privileged is disputed, I set out a summary of the relevant legal principles, as follows:

An overarching issue here concerns the status of Mr Depel for the purpose of the Depel Interview claim against the SFO. As will be seen below, Mr Depel is alleged to have conveyed privileged information because it concerns or relates to advice which he gave ENRC or because he was relaying advice given by others. No particular problem arises with the latter provided that the underlying advice was itself privileged and that privilege had not been lost in the meantime. However, as to the former, the fact that he is a qualified lawyer does not necessarily entail that whatever he said to ENRC was itself privileged. It is always the case that it must be a communication from him containing or relating to advice that he gave qua lawyer. When a client retains a solicitor for the purpose of giving advice, it is almost axiomatic that when he then communicates with the client it is about the giving of that advice. But here, Mr Depel was not, strictly, even an in-house lawyer. He was Head of Compliance. Compliance is of course principally concerned with legal compliance and so if he is advising ENRC internally about what the relevant legislation is, or whether ENRC is complying with it, or what ENRC must do in order to comply with it, this will be privileged. That is so even if a non-legally-qualified compliance officer gives the same advice, provided he was giving it while acting under the direction of a lawyer. Thus, what Mr Depel said originally (which he is now reporting to the SFO) and the context in which he said it, has to be carefully considered since he could have had (and plainly did have) many interactions with others at ENRC that had nothing to do with the giving of legal advice. Moreover, and as the Depel Interview itself shows, Mr Depel was on any view an extremely garrulous individual who had views about many things at ENRC. It hardly follows that all of these views must be regarded as privileged just because he happens to be a lawyer.

Here I should add that on 14 March 2022, I was supplied by the SFO’s solicitors with an email from Mr Depel to ENRC's solicitors dated 28 February, about a number of matters including the Depel Interview. I disregard this material. It was not evidence at the trial and in any event (as will be seen) it would not have affected the outcome.

It is first necessary to recall the position of Mr Thompson in relation to ENRC by this stage. He had been a party to or received information about DC8, DC9 and DC10 in 2011 and DC12 and DC14 in early May 2012. In respect of all of the DCs in 2011 Mr Thompson had (on my findings) received information from Mr Gerrard that he knew was unauthorised and/or against ENRC’s best interests or was reckless as to those facts. In some respects (as shown above) the information presented on those occasions was inconsistent with what he had been told in the OMs.

The above is of some significance for at least two reasons. First, it is relevant to the questions asked by Mr Thompson in the Depel Interview about the nature and scope of Mr Gerrard’s role in relation to the investigation. Second, since I have already found that Mr Thompson acted, to put it loosely, in bad faith in relation to the DCs referred to above (although he said he did not), that is at least potentially relevant to the issue of whether he acted in bad faith on the question of privilege here, and his credibility.

For his part, Mr Thompson accepts that much of the information put to him in cross-examination as having been privileged was such, though he failed to appreciate this at the time. To be more specific, he denies that at the time he suspected that it was privileged but chose to proceed nonetheless. His own view as to what was in fact privileged is obviously not determinative.

As for the role of Mr Depel, Mr Thompson knew that he was in fact a lawyer. Indeed, in evidence he accepted that he was placed on “high alert” after Mr Depel explained at the beginning that he was a dual-qualified lawyer, thinking that maybe they should proceed with more caution. However, he says that he viewed him through his role of Head of Compliance at ENRC. He saw Mr Depel rather as a man of business who was providing information, and in some cases, opinions, in the course of the Depel Interview.

There were a few express references to privilege in the interview, particularly in the context of (a) the SFO being able to get hold of the HS and PP Reports and (b) in the context of future possible interviews with those whom Mr Thompson did see as ENRC’s lawyers i.e. Mr Gerrard and JD. In relation to those matters Mr Thompson queried whether the client (i.e. ENRC) would waive privilege so that the relevant information could be provided. What that reveals, to my mind, is that, of course, as Mr Thompson accepted, he knew what privilege was about and he had read the SFO Handbook which deals with it. But he was looking at it in quite high level terms in what might be regarded as obvious cases, i.e. a solicitor’s report, or a solicitor being questioned directly about his advice to a client as opposed to the somewhat more nuanced forms of privileged information at issue here. So those references to privilege do not therefore show, without more, that Mr Thompson knew or suspected that all the information provided in the Depel Interview said to be privileged, was privileged.

There can be no doubt that if Mr Thompson had given more thought in advance not only to his interviewee but also to what he wanted to ask him, he would have recognised that he was likely to stray into privileged areas. That is particularly true when he was taking the initiative and asking a number of questions about the scope of Mr Gerrard’s instructions and why he may not have disclosed on behalf of ENRC certain items of wrongdoing which, according to Mr Depel had been clearly substantiated. That may have made him negligent but no more. It is to be noted that Mr Elton, also present at the interview, did not notice any privilege problem as the questions were being asked, otherwise he would surely have interjected. Nor did he suggest afterwards there was a problem. Likewise, nor did Mr Gould. Indeed, Mr Thompson’s 10 page summary did not appear to have evoked any concern from anyone else at the SFO in relation to privilege.

Next, a point is taken by ENRC that the Depel Interview was never disclosed in the Privilege Proceedings, nor was it referred to by Mr Thompson in the WS he prepared for those proceedings. It clearly should have been because it was at least potentially relevant to the question there at issue, which concerned when litigation was in contemplation, Mr Thompson having recommended that a criminal investigation should now be started in the light of the Depel Interview. Mr Thompson did not really know why his WS did not refer to it although he thought the WS process was being driven by the lawyer at or acting on behalf of the SFO; that is probably correct. Perhaps, when signing off the WS Mr Thompson should have raised the matter of the Depel Interview but I do not see this as somehow supporting ENRC’s case on misfeasance here. I do not accept that Mr Thompson sought to hide the existence of the interview or something of that kind because he knew in truth that it would expose him to criticism for seeking or receiving privileged information.

Mr Thompson was also asked about the significance of the interview; as just noted, he recommended that a criminal investigation be started, saying that the interview was a major development. Mr Thompson said that with hindsight, and as matters turned out this was not really the case. I think that here, there is an element of Mr Thompson now seeking to downplay the significance of the interview especially in the context of conceding that at least in some respects he had been seeking or receiving privileged information. That said, it obviously was not viewed as sufficient to start an investigation because there was no investigation at that stage.

By way of introduction, it is odd, at first glance that Mr Thompson seemed so interested in this topic as opposed to substantive facts about ENRC’s activities which were of interest to the SFO. A related point concerned Mr Thompson’s questions about why Mr Gerrard had not been able to impart more formally to the SFO or “put on the table” the information about ENRC which Mr Depel was now giving him. The use of the word “formal” is of some significance. It resonates with Mr Thompson’s earlier reference to the last OM as a “set piece” meeting. It rather looks as if Mr Thompson was distinguishing between what the SFO had been told “officially” and other information from Mr Gerrard. Indeed, Mr Thompson was asked whether a hesitation in the transcript at one point was because he did not want to tell Mr Depel about his informal meetings with Mr Gerrard (i.e. the DCs) as opposed to the formal ones. Mr Thompson denied this and said it was a simple hesitation.

I think that what was going on here was that Mr Thompson was exploring with Mr Depel whether Mr Gerrard had been restricted in some way by ENRC from saying as much openly to the SFO as he could or might have wished. It also suggests that Mr Thompson regarded the information he obtained in the DCs as not something the SFO might use. That would certainly make sense if (as I have already found) much of the information given at the DCs Mr Thompson knew or suspected was unauthorised. Mr Thompson was obviously influenced by Mr Gerrard’s particular comments about not knowing things “officially” and so on. And ultimately, given what Mr Depel was saying (in particular that all of WB1 was true) why Mr Gerrard “hadn’t [yet] coughed a report to us” on those matters.

This approach on the part of Mr Thompson is supported by what was said at internal pages 3-4 of the Depel Interview Memorandum about difficulties experienced by Mr Gerrard as relayed by Mr Depel and then the reference at page 7 to what the SFO had already gleaned from Mr Gerrard about the investigation.

The reason why Mr Thompson asked these questions therefore was not so much to obtain further information on Mr Gerrard but rather to see what was really going on at ENRC.

The fact of Mr Gerrard’s retainer by ENRC and that he was tasked with investigating its operations could not itself possibly be privileged in relation to the SFO as this is what it had already been told at OM1 – OM4. Equally, it could not be privileged that the scope of his work included Kazakhstan and Africa as this had been referred to in the OMs as well.

However, insofar as the question would have required Mr Depel to go into more detail about the reasons for the instruction and information given to Mr Gerrard for the purpose of his retainer, that would be eliciting privileged matters.

Certainly, the information provided in items 5-7 must have been privileged because they go into the detail of the scope of Mr Gerrard’s retainer in particular in relation to WB1. It is true, as Mr Thompson said on item 6, that some of these matters had been reported by Mr Gerrard on the basis not of a concluded view by ENRC but being matters they were looking at. Mr Thompson was obviously keen to see if Mr Gerrard was being hampered in any way if in fact the WB1 allegations had already been substantiated at least in the mind of Mr Depel. It is not surprising, in one sense, that Mr Thompson was asking these questions because Mr Gerrard had already said that his work was being hampered.

Equally, with regard to these items, information about what was or was not brought to Mr Gerrard’s attention or that he had been instructed on the barite issue for one day and then removed, goes to the nature and scope of his instructions. The information about the production of barite itself would not have been privileged if Mr Depel had limited himself to that topic. But the important thing was the instruction of Mr Gerrard.

Accordingly, much if not all of the information conveyed in these items was privileged and for the most part it arose from Mr Thompson’s questions.

All of that said, I do not conclude that Mr Thompson appreciated at the time that what he was doing was seeking privileged information or that he was getting privileged information, or that he was reckless as to those facts. To a lawyer, the details of a lawyer’s instructions to advise may be regarded as fairly obvious examples of privileged information since it is ancillary to the task of giving the advice, itself privileged. But to someone in the position of Mr Thompson it may very well not be. After all, Mr Thompson was not afraid to talk of privileged matters where he perceived them to be in issue - see paragraphs 702 and 704 below. Equally, he did not balk when Mr Depel mentioned it. But here, for the purposes of assessing his state of mind, the distinction between what is plainly or obviously privileged and what is less obviously privileged is an important one.

After all, Mr Thompson was not actively seeking to discover what Mr Gerrard may have advised. It was all about whether his work on the investigation generally was being hampered.

In those circumstances, I find no misfeasance here.

The comments about Mr Ammann being corrupt were not privileged in my view. Mr Depel was expressing an opinion not on a legal matter but on the character and actions of Mr Ammann. I do not accept that these remarks were secondary evidence of legal advice previously given. Nor do I accept that this amounts to information learned by Mr Depel as part of his legal retainer. It was learned because of his employment at ENRC but not directly out of the giving of legal advice.

I think the same goes for the remark about Mr Gerrard, being probably on the verge of walking out. I agree that if Mr Gerrard had told ENRC (through Mr Depel or otherwise) that he was thinking of resigning because he was finding it impossible to give the legal advice he was asked to, that communication would itself be privileged and it would remain privileged if repeated now by Mr Depel. But in truth, it was Mr Depel just opining on Mr Gerrard’s position and I do not consider that to be privileged.

Mr Thompson’s query here was not about JD’s advice but who ENRC’s corporate advisers were. That itself cannot have been privileged. However Mr Depel then volunteered information as to JD’s advice and what he and Mr Gerrard thought of it. That was privileged and Mr Thompson should not have said “Right” at that point but should have told Mr Depel not to tell him anything about lawyers’ advice. But I do not think this was a deliberate encouragement to Mr Depel and I think, as Mr Thompson said, it was here an honest mistake and an immediate reaction to what Mr Depel was saying.

I do not think that Mr Depel’s observations about Kazakhstan and Russia at the beginning of this item are privileged. While he obviously learned of these methods of operation while employed by ENRC, it does not follow that he did so in his advisory capacity. That is partly because I accept how Mr Thompson viewed Mr Depel at the time - not as a lawyer who was or had been giving advice- but also because the opinions ventured here were rather like his view of the AC and it was not immediately apparent that this was to do with legal advice.

The first point is that I do not accept that the fact that JD acted on the IPO is itself privileged. But the majority of this item in any event is about HS. As to that, in its written Closing, ENRC said that the HS Report was privileged, while the SFO said it was not. The SFO pointed to paragraph 60A.1 of the 2017 Particulars of Claim and to the fact that it was accepted as not privileged by Mr Pillow QC when cross-examining Mr Thompson. There may have been some confusion here since certainly, the issue of the RTS (the subject of the HS Report) had been made public in the IPO Prospectus at pages 16-17 and so it could not be said that the whole of the HS report was privileged. For present purposes, however, I shall assume that it was.

But even if so, the actual contents of the report (as opposed to its existence or subject-matter) were not mentioned.

Item 20 does disclose elements of what Mr Depel said HS had advised on Camec and Camrose and referred to their reports. This was not solicited by Mr Thompson but this would have been privileged information. He accepted that he should probably have stopped Mr Depel at this point (as with item 11). However, again, I do not think he knew or was reckless as to that fact of privilege at the time. It was not a topic he wanted to explore and Mr Depel moved on to other things.

In cross-examination, Mr Thompson accepted (correctly) that it had been a mistake to ask questions about the PP Report and he accepted he should have picked up Mr Depel’s initial reference to PP in the interview. What Mr Thompson had actually asked about was the subject matter of the report and then who commissioned it. What he did not seek to elicit was what PP actually advised and nor did Mr Depel tell him. Both of them seem to have recognised that it would be up to the SFO to see if it could obtain a copy.

Again, I do not conclude that Mr Thompson knew or was reckless at the time as to privilege here.

Again, this is a case of Mr Depel volunteering some information in the context of a discussion about the SFO seeking information from lawyers under s2 of the 1987 Act. Mr Thompson expressly made the point that there was a problem over privilege. Mr Depel then talks about JD and a Partner there called Ms Irani and another lawyer at JD who was taken off the deal because she had reservations about it. In cross-examination, Mr Thompson said that his remark about asking about matters relating to privilege and “it depends” was simply because they could be lawyers' communications that were not in fact privileged. Right or wrong, Mr Thompson was receiving privileged information. As to JD, I would accept that information that a lawyer from the firm instructed to advise, had reservations, would be privileged, since it impliedly refers to communications from that lawyer as part of the instruction to advise. Mr Thompson accepted that it was privileged. But it was here volunteered by Mr Depel although Mr Thompson should not have asked the follow up question about the nature of her reservations.

But again, I do not think that this was a knowing or reckless breach of duty at the time. As with other incidents, I do not find that Mr Thompson knew or thought about privilege at all. In other words, he was thoughtless (and negligent) but not reckless.

There were some supplementary questions here about the SFO seeking to get a waiver of privilege from the client if the lawyer raised the point about privilege. Mr Thompson was taken to his remark “got to have ammunition.”. He could not explain what he meant there although it was obviously concerned with getting a waiver from the underlying client. Mr Thompson did say the context would be whether there was a process of cooperation going on and part of the process might involve the client agreeing to waive privilege. He thought, ultimately, that ammunition meant having a specific reason to explain to a client why the SFO wanted it to waive privilege. He denied that the ammunition reference was to information that he could then use (like the JD lawyer who had concerns, volunteered here anyway by Mr Depel) as a lever to get the client to waive privilege. He also denied the further suggestion that the entire purpose of the interview was to convince the client to waive privilege. I accept those denials and I think the questioning here was becoming somewhat far-fetched. Mr Thompson arranged the interview because, like any other interview, he thought there may be material which would assist the SFO in its investigation. And as we know, at the time he thought it did.

Accordingly, there is no misfeasance in relation to any of these items.

As to items 3, 8 and 10, I think, on balance, that Mr Depel’s Compliance Reports at least in part consisted of him giving legal advice, namely as to what was required in order to achieve compliance with “adequate procedures” for the purposes of the Bribery Act. I agree that he was not principally advising what the law was; however, whether something complied with the legal requirement or not could obviously be legal advice. Obviously, if the subject matter discussed was a particular system or process set up in order to comply with a legal requirement and how it was working or not, in other words the mechanics of the operation, that may well not be legal advice. The information is now about something which is a consequence or product of the legal advice. However, I cannot say that these reports can simply be characterised only as such.

All of that said, I would agree with the SFO that this was not “obviously privileged”. Mr Thompson said in evidence that he thought this was all about the audit reports and later that he did not think the audit reports were privileged. He did not appreciate that the information was privileged if in fact it was. I think this is plausible.

As to items 9 and 22, Mr Depel was directly or indirectly disclosing advice he had given about non-compliance with various laws. I agree that this was itself privileged information. Mr Thompson said it was not obviously privileged to him at the time and that while it was clear now that Mr Depel did not seem to respect ENRC’s privilege, again, he did not appreciate this at the time. These two points go hand-in-hand. If Mr Thompson did think that information was privileged at the time, he could not have thought that Mr Depel was free to dispense such information.

In both these cases what Mr Depel said had not come in answer to what Mr Thompson had been asking him.

Again, overall, I do not think that there was any knowing or reckless receipt of privileged information.

This was information volunteered by Mr Depel after Mr Thompson had asked who else the SFO should be speaking to. I would agree that information about the nature of the investigations policies advised or contributed to by Mr Gerrard and later sought to be changed by JD, would be privileged since in effect, it was relaying the content of their legal advice.

Mr Thompson agreed that Mr Depel should not have been telling him about JD’s removing things from the investigation policy. He had earlier said that he did not see the existence of the investigation policy itself as the issue. It was not put to him in terms that he knew that this was privileged information at the time or was reckless as to that fact. In any event, I am quite sure that he did not.

Tape 1 ended with Mr Depel saying “and I would also like to direct you to where you will have the physical evidence.”

There appears to have been a 14-minute break before Tape 2 started and Mr Depel agreed that nothing had been discussed with Mr Thompson while the tape was being changed.

Although not pleaded, it was put to Mr Thompson that given where Mr Depel had left off on Tape 1, there must have been a discussion between them about physical evidence.

In cross-examination, Mr Thompson was asked about whether in fact there had been a discussion in the break. He said the location of physical evidence would have been interesting to him, but he could not remember if there was any discussion about it.

Of course, if there had been a discussion, then both Mr Thompson and Mr Depel would not have been telling the truth having regard to the statements made at the beginning of Tape 2. The Depel Interview Memorandum made no mention of the location of any particular physical evidence and ENRC did not suggest or put to Mr Thompson that it did.

In my judgment, this enquiry was pure speculation and I do not accept that Mr Thompson would start Tape 2 with a knowingly false declaration. Accordingly, the question of privilege does not even arise here.

It follows from all of the above that I do not consider that there is any instance where Mr Thompson knowingly or recklessly received (and then recorded) privileged information which he should have stopped Mr Depel from communicating to him, or knowingly solicited it. Accordingly there was no misfeasance here.

In reaching this view, it is obviously different from what I found in respect of his state of mind in connection with DCs 8-10, 15, 23 and 24. I have taken into account the fact that I rejected his evidence in those instances as to his state of mind whereas I have essentially accepted it in this context. However, in my judgment, it is one thing to recognise that a solicitor is clearly speaking out of turn, as it were, in direct conversation with the solicitor, especially where there are numerous separate occasions. It is quite another to recognise that what someone else (i.e. Mr Depel) is saying not only about what he said, but about what other advisers had said or did on other occasions was in fact privileged. As already noted, privilege of the kind at issue in the context of the Depel Interview was not, in my judgment, of the most obvious kind.

In the light of this conclusion, the question of knowledge of loss does not arise here.

This 18-minute call is revealed by the call records. There is no note. ENRC alleges that the call must have been about the Depel Interview the day before. In my judgment, there is no basis for finding any breach of duty whether by Mr Gerrard or Mr Gould simply because the call took place. As for the discussion of the interview, Mr Gould denies that this was the subject of their discussion and that is plausible, since Mr Thompson did not report it in detail to Mr Gould until 22 May. Mr Gerrard denied it also.

In addition, there were other matters which could have been discussed at that stage, not merely affecting ENRC but also non-ENRC matters given that Mr Gerrard and Mr Gould had developed something of a personal relationship by then.

On that footing, I am unable to find that the call itself was about ENRC and unauthorised. If DC14A is relied upon simply as a piece of evidence to show Mr Gerrard’s knowledge of the Depel Interview, it has somewhat lost its importance, since Mr Gerrard has now admitted this anyway.

The DC alleged here has two elements. The first is that on Friday 15 June Mr Gerrard spoke to Mr Thompson. They agreed that a short-notice meeting with the SFO should take place the following Monday 18 June at 1:30pm. This would become OM6. The latter would precede an already-planned SIC meeting at 4:30pm the same day. It is alleged that Mr Gerrard pre-agreed with Mr Thompson and Mr Gould certain messages to be given to ENRC on that occasion.

The second element of DC15 is the letter sent by Mr Thompson to ENRC by email (via Mr Gerrard) on 18 June (“the 18 June Letter”) and it reads thus:

“Dear Neil

Eurasian Natural Resources Corporation Plc

Further to our conversation this morning I am writing to confirm that we will meet at the SFO at 1.30pm this afternoon. The purpose is for you to provide us with an update on your progress and agree the immediate steps necessary for your client to continue to avail itself of our Protocol on Self-Reporting. In this regard, I would take this opportunity to remind your client of the following points:

•

The need for a frank and thorough formal report of any wrong-doing that has been discovered.

•

The requirement that the SFO is satisfied that the scope of the investigation has been not been restricted.

•

The Board of Directors have demonstrably committed to the process.

We look forward to seeing you later today.”

The covering email to Mr Gerrard had the subject heading “Meeting today” and then said “Neil… Letter as promised… Regards… Mark…”. It was forwarded to Mr Dalman and Mr Ehrensberger among others.

The allegation here is that Mr Gerrard effectively procured the SFO to write this letter in the course of a further conversation he had with Mr Thompson in the morning of 18 June.

In both cases, the motive for Mr Gerrard to do this was said to be so as to expand the scope of his work or ensure that it was not about to be reduced. As against the SFO, the motive of doing this so as to assist Mr Gerrard’s desire for expansion was not put.

There was an issue at around this time as to whether Camec was still on the agenda for the SFO or not. I deal with this at paragraphs 1270-1286 below.

On 12 June, Mr Gerrard received an email from Mr Thompson at 9:14am:

“Neil… How are things progressing? Can we fix a meeting date for your latest findings?… Regards… Mark”

Ms Adams forwarded it internally to others at Dechert, saying that Mr Gerrard had asked that no one contact the SFO as he would speak to Mr Thompson directly. He mentioned that they should start preparing presentations on both Kazakhstan and Africa for this meeting. At least at that point, it did not appear as if Mr Gerrard was contemplating a meeting with the SFO as soon as the following Monday. Indeed, there were no presentations as such at least not in terms of slides etc.

At 4:36pm the same day Mr Gerrard sent an email to Mr Dalman simply with the subject line: “Can we meet privately ASAP?”, to which Mr Dalman replied that he could meet at 4.30pm the following day. At 5:28pm Mr Gerrard sent a long email to Mr Dalman. He said that very little progress on Africa had been made since the SIC meeting on 9 May. He went on to say “I am now very concerned as we can expect contact from the SFO any day now regarding the proposed June meeting.” Finally, he sent an email at 6:33pm saying that “The SFO have now emailed me asking for the June update meeting!! We can discuss tomorrow.” This was disingenuous, since of course, the email from Mr Thompson asking about progress had arrived in the morning. So, the concern which Mr Gerrard had expressed in the previous email to Mr Dalman was a self-fulfilling prophecy.

Mr Gerrard then spoke to Mr Thompson twice, late in the afternoon of Friday 15 June. He later emailed Mr Thompson saying that a meeting anytime on Monday early pm would be good. He also emailed Mr Dalman simply with the subject line: “Can we talk ASAP? SFO not good.” Finally, Mr Gerrard called Mr Thompson in the morning of 18 June after which the letter was sent. On 18 June itself, there was an internal Dechert call with Mr Zinger. He had been told by Mr Dalman that they would be meeting with the SFO at 1:30pm. Mr Gerrard added that “we will get formal letter”.

At OM6, Mr Thompson said twice that ENRC was in the “last chance saloon” and that it was essential that the investigation findings be disclosed in the near future for a civil settlement to be entertained. He also said he had been “concerned” by the mention of Mr Ehrensberger as a member of the SIC and Mr Gerrard then said that he would suggest that Mr Zinger replace Mr Ehrensberger.

For his part, Mr Gould said that unless electronic data was secured and reviewed quickly he would order a “raid on the company’s premises in order to secure the E-data”, that if Mr Gerrard’s investigation was restricted in scope “the inevitable outcome would be a recommendation that a criminal investigation be commenced” and that he had been concerned by JD’s conduct. As far as that latter point is concerned, I should add that it echoed Mr Gould’s evidence in his WS that JD had been “defensive” in the OMs. However, in cross-examination he could not really justify this. In truth, it is obvious that his negative view of JD came from what Mr Gerrard had been feeding him. Indeed, he accepted in cross-examination that at least a part of his concern about JD came directly from what he heard from Mr Gerrard in private. However that understates the position, in my view.

I turn now to the first element of DC15. I am quite satisfied that Mr Gerrard did effectively request the SFO to send these messages to ENRC. Indeed, Mr Gould, at least, accepted that he had raised the prospect of a raid in one meeting as pre-agreed with Mr Gerrard although he thought it was OM5 (when he first met Mr Dalman). As there was no mention of a raid then, I agree that it probably was OM6. Mr Thompson considered that his own remarks were acceptable but said that Mr Gould’s had been “overblown” and “complete nonsense”, in particular, with regard to the likelihood of a raid or criminal investigation if information was not provided promptly. Nonetheless, it does not appear as if Mr Thompson criticised Mr Gould for what he had said, following the meeting. Also, although Mr Thompson did not refer to a criminal investigation, he must surely have been implying that when saying that the investigation findings needed to be disclosed soon for a settlement to be entertained. On the face of it, the alternative to settlement would be a criminal investigation.

The urgency with which the meeting was arranged, once Mr Gerrard had spoken to Mr Thompson, does contrast with the tone of the latter’s initial email asking about progress. I do not think that this was just a question of Mr Thompson being polite. Obviously, he would be looking for an update/further meeting but not necessarily as quickly as Mr Gerrard arranged things.

In my view, Mr Gerrard did want the SFO to “up the ante” with ENRC to ensure that the scope of his investigation was not reduced. At one level, I am sure that this was with an eye to his fees, but it may also have been to ensure that work was done which he thought might be necessary at some point or other anyway. However, I also think that Mr Gerrard wanted to impress the SFO as to his own position as being a lawyer whom the SFO could trust, both in terms of “delivering” ENRC to them without the need for a criminal investigation and enhancing his own image. Again, the notion of Mr Gerrard by now seeing himself as some kind of intermediary between the SFO on the one hand and ENRC on the other, springs to mind.

On any view, Mr Gerrard could not and did not have authority to make such requests or pre-agreements and he knew that or was reckless as to it. It is not an answer to say that he reported back to the client on his conversations with Mr Thompson. That all depends on what he said. The email said that the SFO was “not good”. The message could simply be that the SFO was not satisfied with the rate of progress but without revealing his request to the SFO to give a certain message.

Accordingly, I find that Mr Gerrard was in breach of duty because he had no authority to do or say what he did. And he knew this or was reckless as to it.

As for the SFO, I deal with Mr Thompson first. Given the fact of the pre-agreement here, it is important to see how he could have thought that what Mr Gerrard was doing could have been authorised; it would mean that ENRC was in effect authorising Mr Gerrard to get the SFO to “put the wind up it” in order to ensure that it toed the line. That makes no sense. Mr Thompson says that he was in truth getting frustrated with ENRC’s lack of progress by now. He may well have been, but that is not to the point. It is that the SFO were effectively engaging with Mr Gerrard’s request. Whether, absent this request and at an OM arranged without any prior contact with Mr Gerrard, Mr Thompson would have made the same points may be relevant on causation, but it does not affect the breach of duty.

As for Mr Gould, either he also spoke at some point to Mr Gerrard when he made his admitted “pre-agreement” or it arose once Mr Thompson told him what had been discussed on 15 June. There can be no doubt that by the time of OM6 itself, Mr Thompson and Mr Gould were “singing the same tune”, as it were, and they must have discussed their approach beforehand.

Both Mr Thompson and Mr Gould may have thought that this approach was legitimate on the basis that it would assist the SFO in the long run if ENRC could be made to deliver in the way that Mr Gerrard wanted; but that could not negate any absence of authority on the part of Mr Gerrard which I find they must have and did know of, alternatively they were reckless as to it. The way in which the letter came about adds force to this, and I turn to it now.

The SFO accepts that the letter was written at the request of Mr Gerrard, but says that the context is not the same as ENRC would have it. I think that the letter was Mr Gerrard’s substantive idea and it followed the “pre-agreement” theme from the previous Friday. It is correct that ENRC knew (because Mr Gerrard forwarded the email) that it had been sent to him “as promised” by Mr Thompson. Equally, Mr Gerrard told Mr Zinger on the Monday morning that a formal letter was on its way. That is one thing; the fact that the solicitor is told by the other side that a letter is coming and then receives it “as promised” could be entirely innocuous. But what Mr Gerrard did not tell his client was that he was instrumental in obtaining it in the first place, and without him, there would probably have been no letter at all. The aim of the letter in my view was clearly to scare the client into action. Whatever the ultimate motive, I consider that Mr Gerrard knew full well that none of this was authorised.

As for the SFO, I restrict the allegation here to Mr Thompson since the letter emerged out of his discussion with Mr Gerrard on the Monday morning and is signed by him. The terms of the letter itself are disingenuous. First, it portrays Mr Thompson’s conversation with Mr Gerrard as effectively limited to agreeing the time and venue of the meeting and perhaps its stated purpose. But in truth, Mr Gerrard drove all of it, at least in general terms as to the message to be delivered. Second, Mr Thompson did not just happen to take “this opportunity”. There would be no opportunity without the letter that Mr Gerrard had requested. And indeed, if it was only to record the agreed time and date of the meeting, the letter would not have been necessary; it would have been done by email.

Accordingly, and for the same reasons, Mr Thompson knew or was reckless as to whether Mr Gerrard had the authority to request this letter. As to why Mr Thompson agreed to write the letter, I think it was little more than helping Mr Gerrard (albeit wrongfully) to exert pressure on his client to “play ball”. It was not in order to assist Mr Gerrard to expand his remit so as to charge more fees. However, that does not affect the facts as to his state of mind at the time.

In respect of both Mr Gerrard and Mr Thompson I have also taken into account here what I say in paragraph 750 below.

Given the letter and OM6, it is not surprising that the SIC decided in principle later that day to keep Camec in the investigation. This was confirmed at the next SIC meeting on 9 July (see paragraph 5.3 of the note thereof). It was on this occasion that Mr Ehrensberger was asked to stand down from the SIC as he was not independent from the review of African acquisitions. He would not attend further SIC meetings unless requested. The same applied to Mr Hanna for the same reason.

There is a postscript to this which is revealing about the state of mind of Mr Thompson and indeed Mr Gerrard at the time. There was an open conference call on 25 June between Mr Thompson and Mr Gerrard along with Mr Gould, Mr Wiggetts and Mr Zinger (I have not given this an “OM” number as such). In that call, Mr Gerrard “explained that the Chairman had been disappointed that [ENRC] had received the letter from the SFO… [n]o-one had understood where the SFO was coming from” and Mr Gerrard had not been able to answer the client when asked why the SFO’s attitude appeared to have hardened. All of this was disingenuous. While it appears that Mr Dalman was indeed disappointed when he saw the letter, the way Mr Gerrard spoke was as if he had no prior knowledge of it, when of course he did. Equally, the reason he could not explain why the SFO’s attitude had hardened was because he was involved in presenting it as having hardened. So far as Mr Thompson was concerned (and probably Mr Gould who would by then have known how the letter arose) he would have known it was disingenuous, too. But he did not intervene in the meeting to say so, and in cross-examination he could not explain why he did not do so. The obvious reason is that he knew that Mr Dalman was unlikely to have authorised Mr Gerrard to have done what he did in DC15 and would not have known about it. As against this, it is said that the views expressed in the letter were the SFO’s views and Mr Dalman was indeed disappointed at learning of them. However, I fail to see how that removes Mr Gerrard’s lack of authority. It is also said that he was entitled to ask the SFO to put its views in writing so the client should see them. But that completely understates what happened as I have set out above. Moreover, the letter (as described above) does not say that Mr Gerrard asked the SFO to put its views in writing and ENRC did not know that he had in fact requested it. All it knew was that, according to Mr Gerrard, the SFO had told him that a letter was going to be sent. That is rather different.

I have dealt with the SFO’s pre-meeting letter at paragraphs 737-750 above. Mr Gerrard updated the SFO on progress on Kazakhstan and referred to the stripping allegation. Progress on Africa, due to IT problems, had been slower. It was agreed that ENRC would submit a timetable for a further visit to Kazakhstan, a presentation on the SSGPO investigation and a report on SSGPO for the SFO with a proposal for settlement. By definition, that last report would have to disclose some criminal wrongdoing. Also there would be a proposal for progress on Africa, principally covering Camec and Camrose. On 25 June Mr Gerrard agreed to give a further update on Africa in July, though not a substantive report.

At just after 9am in the morning of 22 June, Mr Zinger issued a “protocol” by which “there should be no discussions or other unilateral contacts between Dechert and the SFO” and he should be involved in any discussion or contact (“the Zinger Protocol”). Emails had to be cleared with him first as well. Yet at 6.39pm Mr Gerrard spoke to Mr Thompson for 29 minutes. Although it had been suggested that it was Mr Thompson who initiated the call, the recently disclosed texts show that Mr Gerrard had wanted to speak to Mr Thompson but Mr Thompson texted that he could not speak until about 6:30pm as he was on a train, and Mr Gerrard should call then. Mr Gerrard accepted that he had a conversation. He suggested that he could hardly not take the call on the basis that his client did not permit it. But as to that, first, if that is what his client wanted, then he should have followed its instruction. Second, he was not taking a call from Mr Thompson, he was initiating one. He could easily have brought Mr Zinger in on a call the following Monday. Accordingly, Mr Gerrard was in clear and knowing breach of duty in speaking to Mr Thompson. The incident is of some importance because it shows that Mr Gerrard was quite prepared to ignore instructions if it suited him.

All of that said, as there is no note of the conversation and no particular information is alleged to have been imparted improperly, the allegation against Mr Gerrard does not go any further and it is not possible to find a knowing or reckless breach of duty on the part of Mr Thompson.

The first part of this meeting focused on Mr Dalman and the changes he had made or intended to make to the governance of ENRC. The removal of Mr Ehrensberger and Mr Hanna from the SIC was referred to along with the addition of two new Board members. He stressed that he had now set the “tone from the top” and at the end of the day bore personal responsibility for and “owned” the SR process and getting it done. He added that the Board was now much more focused and would get rid of people with whom ENRC had contracted in the past who had a bad reputation. He added that after conversations with the shareholders (including the Founders) they had all told him to do what he had to do.

There then followed an extensive slide presentation on Kazakhstan and a much shorter one on Africa. These were given by Mr Gerrard with the assistance of Mr Duthie of FRA. It was pointed out that there were a number of red flags in relation to Camrose which required further investigation. Mr Dalman referred to the $35 million drawdown on the $400 million loan which had gone to Metalkol, where no documents had been provided and said that ENRC would get to the bottom of this issue.

On timetabling, Mr Gould said that a follow-up meeting should be scheduled for early autumn or latest, the end of September. Mr Dalman said he was looking to resolve the Kazakhstan investigation by the end of December with Africa going beyond that. In his evidence, Mr Dalman said that he considered that the making of the negative points which had been made about ENRC here was in its best interests, and it was attempting to be very open and frank.

After the meeting, Mr Gerrard emailed Mr Wiggetts to say that the meeting went really well and Mr Dalman did a “really sickening and overly sincere presentation. He literally threw both Beat and Victor under the bus. Would you believe it he was also very disparaging of Jones Day.” He then wrote to Mr Dalman to say that it was a great result, the slides were a good idea and “It is a far better result than you will ever know.” In response, Mr Dalman said that he could not thank Mr Gerrard and his team enough. “We achieved a lot and as a consequence gives me the credibility to. Initiate more changes within the firm. I am glad I stuck to my views in faces of criticism and pressure points.” In evidence, he explained the latter by saying that there were elements in the Board’s thinking that ENRC was doing too much and exposing itself too much in the investigation, and it questioned if Dechert was the right firm to do the job and whether ENRC should continue to cooperate with the SFO as opposed to defending its position as a company. But that was not the majority view.

ENRC has criticised the difference in tone between how Mr Gerrard described Mr Dalman’s presentation internally and how he put it to Mr Dalman himself and said that it was an example of his duplicity. I do not see that, although it could be said that the approach taken by Mr Gerrard was somewhat two-faced. There was no difference in substance between what he was reporting. In cross-examination he said that he thought Mr Dalman had done a good job. ENRC says that this was merely Mr Gerrard seeking to deflect criticism from his internal email but I do not think anything really turns on this.

On 6 August, Mr Thompson emailed Mr Gould about the former being replaced on the ENRC case. He suggested that the case would boil down to two things: negotiating something sensible with Dechert and making sure it would pass muster with the Director. At this stage, therefore, Mr Thompson was clearly still looking at the case from the point of view of settlement. In his briefing to Sir David on 21 August 2012, Mr Gould said that there had been a sea change in the approach of the Board of ENRC and Dechert was now obtaining full access to data. Significant progress had been made on Kazakhstan and the full report should be delivered at the end of October. On Africa, he said that investigations had recently developed rapidly. He also made reference to the $35 million withdrawn in cash over a period of 10 days. The full report for Africa was expected in late January 2013 due to the quantity of electronic media now made available.

In his reply to Mr Thompson’s email referred to in the previous paragraph, Mr Gould said (on 7 August) that he had received a call from Mr Gerrard the previous day. It is also common ground that Mr Thompson spoke to Mr Gerrard on 7 August. Neither Mr Thompson nor Mr Gould could clearly state what they had been talking about. Mr Thompson relayed Mr Gerrard’s voicemail from 6 August as “to get feedback generally and on the remedial actions in particular”. That might have been a reference back to OM7 but there is insufficient material for me to find anything more. If there was merely a general enquiry from Mr Gerrard as to the SFO's reaction to the meeting, that could have been impliedly authorised.

In the event, I cannot find breaches of duty by either Dechert or the SFO here.

The meeting itself had been requested by Ms Adams on behalf of Mr Anderson re-“Kaz resolution”. Mr Gould made some notes of this meeting and Mr Anderson made a note. ENRC alleges that Mr Gerrard made 4 statements which were obviously against ENRC’s interests, being (i) that Mr Gerrard was being kept at “arm’s-length” from investigating certain issues by JD (ii) the $35 million was taken out in cash by Metalkol and turned up in an offshore account (iii) there were no background documents for that payment and (iv) “Camec/Camrose stinks”.

ENRC also alleges that there was also a “without prejudice” discussion at this meeting, which it said Mr Gerrard had no authority to enter into. This is not in fact a pleaded allegation.

The salient parts of Mr Anderson’s note of the meeting, which formed the basis for the pleaded allegations, are as follows:

“VH hates talking to us. Drives it. Does deals. Said didn't know what Vipar loan was for. Says he didn't care. He says re: 35 million, needed it to pay liquidators on FQ. Because FQ was stymied they weren't doing anything. Had to put a bond up. Tracking payments 35 million gone into the bank account in Congo. Drawn out in cash over 10 days. Then been sent on to a BVI or Guernsey trust holding it on behalf of administrator. Tracked down 9-12 million for legal fees in Congo. 9 million for FQ legal fees in Africa. No docs from client on Metalkol 35 million…

Promissory notes. HS great job on dd. Worry client. On reflection. Now thinking did we cover ourselves enough. Probably did. Can't get past. Second payment. Stirling [sic] UKLA looking at that…

Kept at arms [sic] length by JD. JD done a certain amount of work. Missing 10% of story. Re-issue HS still…

How do we pay 35 million w/ no background docs People do as frightened of VH Taken out in cash Then allegedly turns up in an offshore account FQ put in bond. Get back from [illegible] December. Not got around to it according to VH. Want to see documents. He is negotiating to get it back. He is trying to get it back to save himself. Camec / Camrose stinks…

Hot docs_1 lever arch…”

On the question of being kept at arm’s-length, Mr Anderson’s note does not actually say that it was Mr Gerrard being kept at arm's length or what he was being kept from. Mr Gould’s note just says that JD were dealing with UKLA on the promissory notes issue. I am not sure what was actually said here, and these notes do not really help. JD was looking at the promissory note question in relation to the Camrose acquisition (discussed at OM7). The original promissory notes had been cancelled and replaced with new bearer notes. There was an issue as to whether HS had advised on this aspect of the transaction. Although the SFO accepts that the words used here indicate that Mr Gerrard was being kept at arm’s-length, I think, on the basis of Mr Anderson’s note, it could have been a reference to UKLA being kept at bay.

As to “Missing 10% of story” this could be JD missing 10% because of the impasse over the role of HS. Mr Gould was asked whether he was seriously suggesting that he thought it was proper for Mr Gerrard to be revealing confidential and likely privileged information about what JD was doing and Mr Gould said that he could agree (now) about this. He later said “I don’t think it is proper”. But the question asked was premised on one view of the words. ENRC’s pleaded case is not that Mr Gerrard was revealing privileged information; it is that he was badmouthing JD. I cannot say if this is so and in my judgment this point goes nowhere. Mr Gould also said later that from where he sat, Mr Gerrard had been instructed by the client to deal with these issues. In the context of this DC, I think this is plausible.

As to the references to $35 million, I cannot see how Mr Gerrard was authorised to make these statements. While the $35 million payment had been referred to in OM7, the cash payments now revealed were not. Indeed, they only came out of the memo from FRA to Dechert on 16 August, and it seems they were not provided to ENRC until the SIC meeting on 30 August, or perhaps even later.

I think that this is a case of Mr Gerrard getting somewhat carried away with his latest information and wanting to share it with the SFO. It is information which is relevant to the question of the $35 million payment but Mr Gerrard had no authority to say it at this stage and he must have known that it was unauthorised. Equally, the expression “Camrose stinks” is plainly damaging to the interests of ENRC. I think Mr Gerrard was in breach of duty because he knew he had no authority to express matters in this way.

However, as for Mr Gould, it does not follow that he knew that Mr Gerrard would have been unauthorised to provide any further detail then about the $35m payment. As for the “Camrose stinks” he probably realised that Mr Gerrard had no authority to use these words but appears not to have done anything with them. The phrase is not contained within his notes and at the end of the day this was a short one-off expression. It is a breach of duty but one of little significance.

There is then the separate question of the “without prejudice” discussion which does not feature in Mr Anderson’s note or indeed Mr Gould’s. However, the final section of Mr Gould’s briefing note to Sir David reads as follows:

“At a meeting held on the 20th August 2012 the potential resolution for Kazakhstan was raised, on a without prejudice basis, insofar as the company has clearly committed a ‘books and records’ offence and has ‘inadequate procedures’ in place to prevent bribery and corruption. The recoverable property could be a multiple of the annual cost of suitable anti-bribery and corruption compliance resources. The basis for not prosecuting would be an extension of the fact that the victim has been ENRC. This may lead to a ‘first stage’ [sic] CRO in an amount ranging from £1 to £2 million through to £8 to £10 million.”

Mr Gould and Mr Gerrard accepted that there was a “without prejudice” discussion and that is not surprising, since Mr Anderson’s stated purpose for the meeting was “Kaz resolution”. Although Mr Gould said that the figures referred to in his note were his own personal thoughts and not communicated to Mr Gerrard and Mr Anderson, I am sure that they were. If one is going to talk about resolution it would be odd not to make some reference to figures, especially in the case of someone like Mr Gerrard who would have wanted some ballpark figures. Indeed, at a later initial meeting with Morgan Stanley on 5 October, he referred to a proposed £8 million fine from the SFO.

I also think that Mr Gerrard would have postulated a resolution based on ENRC’s commission of a “books and records” offence and one concerned with inadequate procedures to prevent bribery. Those were the obvious offences to found a civil settlement, but they needed a criminal offence committed before there could be a settlement. I do not think he was making an unqualified admission of criminality in a vacuum. I also think that the reference to “without prejudice” here was in the normal sense of settlement negotiations, albeit that Mr Gould said that he did apply that expression to cover other things as well. In other words, even if Mr Gerrard did proffer the commission of those offences within these discussions, there was nothing that the SFO could actually do with it.

However, I am less clear whether the references to Africa were made at this meeting especially since the topic was meant to be simply Kazakhstan.

In fact, this element of DC17 was not actually pleaded. Nonetheless, it was clearly put to Mr Gerrard and he dealt with it in his evidence. So far as Mr Gerrard is concerned the point is not so much that negotiations involving figures would not form part of a process designed to lead to a civil settlement. Rather the question is whether he was authorised to enter into these discussions at all at this stage. There is no evidence that he was and I conclude that he was not and must have known that. He may well have felt that none of this really mattered since it was all without prejudice but I do not think that is an answer. Accordingly, I consider that Mr Gerrard was in breach of duty here.

The position of Mr Gould is different, however. It was not obviously against ENRC's interests for Mr Gerrard to have this meeting. Also, the reference to the offences was in the context of a postulated settlement not some separate admission. In any event, Mr Gould’s view was that he could not have used it. I do not think that Mr Gould here knew that Mr Gerrard was acting without authority and so there is no breach of duty on his part.

This was evidenced by Mr Thompson’s file note. Mr Gerrard had been asked by the SIC to inform the SFO about the resignation of Mr Zinger as Deputy General Counsel. The conversation went beyond that, however. It included Mr Gerrard telling Mr Thompson that “around £35 million [it was in fact $35m] in cash was withdrawn from ENRC company accounts in the past, and these sums have not been satisfactorily accounted for”. It is correct that at OM7 reference was made to the $35 million as a drawdown where no documents had yet been provided. The information that it had all been paid out in cash was significant. In fact, this information had been conveyed to Mr Gould in DC17. As with that DC, I cannot see how Mr Gerrard was authorised to disclose this information, especially given that the call here was meant to be only about Mr Zinger’s resignation. Of course, it can be said that this was an update, but then there is no evidence that ENRC authorised Mr Gerrard to give updates in this way. Mr Gerrard must have known that. Accordingly, he was in breach of duty.

However, and as with Mr Gould in DC17, there is no reason why Mr Thompson should have known that Mr Gerrard had no authority to add the information about the cash nature of the withdrawal. So there is no breach of duty by him here.

It is common ground that Mr Gould and Mr Gerrard met for lunch at a pub called Shaw’s Booksellers. It is near to Dechert’s offices as Ms Adams emailed to Mr Gould when setting it up. She also said that it was “out of the way”. Although it is suggested by ENRC that this indicated that both Mr Gould and Mr Gerrard knew it was to be an improper meeting I do not accept this. Mr Gerrard frequently met people there and Mr Pickworth had been there also. Mr Gould said he liked it because he did not like crowds. Whether Shaw’s Booksellers was a particularly quiet pub I do not know, but the fact of his regular visits there and that it was in an area with many law firms and chambers nearby seems to me to make it an unlikely location for an improper meeting.

No note was taken of the meeting. However, Mr Gerrard’s billing narrative stated that he discussed the changes to the voluntary reporting guidelines, gave an update on Project Moses (i.e. the Gertler buyout) and a date for the next open meeting. I am not prepared to infer that the meeting was improper or unauthorised, which is the only allegation made by ENRC.

In my judgment there was no breach of duty by either Mr Gerrard or Mr Gould here.

This is another of the texts that emerged following the disclosure on Day 24, referred to above. It reads as follows:

“Sorry bad signal on the train. DGCBQC has shown he ignores or passes such requests for meetings etc back to the case team. We should have Alun Milford with us when we meet next week. That move is my suggestion to the 9th floor to get them on board as to how I believe this could be resolved—2 parts, one non pros and one pros (although the 2nd part may be more than one defendant). I believe AM will take a reasonable stance when the material is viewed; it is, in my opinion, after all not material we are ever going to get in an evidential format. Happy to chat later if you/client need more comfort—should be available from about 6.45 or so (or tomorrow afternoon in the office). DG (the non CBQC one!).”

As against Mr Gerrard, it is said that he should have passed this information on to ENRC because it showed how Mr Gould viewed the SFO’s ability to obtain actual evidence against ENRC. Dechert makes the point that the SFO could in fact have obtained such evidence itself by serving notices under s2(3) of the 1987 Act, on ENRC, and its advisers in London. Such notices could have encompassed overseas material held by subsidiary companies. I see that, but nonetheless, in my judgment, Mr Gerrard should clearly have communicated Mr Gould’s thought processes to his client. It could affect ENRC’s view of continuing with the SR process and/or what information it would provide at the next meeting. This was more than mere negligence on Mr Gerrard’s part. He must have known that he should have passed the information on, or he was at least reckless as to that. On being shown the text, Mr Gerrard said that he had “no memory” of it. I do not accept that, nor do I consider that the text can be dismissed as “unremarkable” and merely part and parcel of the SR process. Mr Gerrard was clearly in at least reckless breach of duty.

As for Mr Gould, he clearly had no business communicating his thought processes about the SFO’s abilities to obtain evidence, or those of anyone else, or the attitude of Sir David. The evidence of other SFO officers on this point is revealing: Mr Thompson saw it as undermining the SFO and Mr Milford thought it was “not remotely sensible or appropriate”; had he known of the text, Mr Gould would have been removed from the case. At the end of his cross-examination, having said there was nothing wrong with saying in the text that there was material that the SFO would not ever get in evidential form, Mr Thompson then said that he would not disagree with Mr Milford’s view that it was “not remotely sensible or appropriate”.

By now, as I see it, both Mr Gerrard and Mr Gould’s relationship was such that they were able and willing to communicate “beneath the radar” as it were. In other words they were prepared communicate on a confidential basis, i.e. just between themselves. Indeed, I think that by now, Mr Gould felt somewhat beholden to Mr Gerrard as someone who could give him useful career advice and Mr Gerrard wanted to continue to inveigle himself with the SFO. It may be that Mr Gould thought that all of this was in the interests of the greater good of the SFO obtaining a civil settlement, while Mr Gerrard thought that it was useful to obtain intelligence to this end (but without revealing it to his client) but in my judgment this does not affect the position.

Here, in my view Mr Gould was, first, plainly aware of his own breach of duty to the SFO in writing the text. Second, however (and consistent with the plea at paragraph 30.2 h (a) of the 2019 POC), it was put to him in cross-examination whether he expected Mr Gerrard to feel free to go off and tell his client about the prosecution of individual defendants as referred to in the text. His answers impliedly suggested that he did, but I do not accept this. One only has to posit whether Mr Gould would have been prepared to write formally to Mr Gerrard in the same terms (he surely would not) to see that. Not least because of his own breach of duty to the SFO, Mr Gould could not seriously have thought Mr Gerrard would have communicated the text to his client. This was effectively an “off the record” communication following an earlier conversation which Mr Gould either knew or suspected would go no further than Mr Gerrard. As such, there was at least a reckless breach of the Independence Duty on the part of Mr Gould here.

This was attended by Mr Rappo, Mr Thompson, Mr Gould, Mr Dalman, Mr Wiggetts, Mr Gerrard and Mr Duthie. The slide presentation given by Dechert contained 49 slides on Africa and two on Kazakhstan. I agree that there is a complete absence at OM8 of the references to Mr Hanna and Mr Ehrensberger in DC17 as being “above and beyond” the public interest, to their possible dismissal and to the giving of notice to the SFO in that event. Nor was there any mention of the “without prejudice” conversation. As already indicated, these were all significant matters and the only possible reason for them not to be mentioned at OM8 is because neither Mr Gerrard nor Mr Gould wanted to disclose them.

At OM8, Mr Wiggetts said that, subject to obtaining Board approval, the Kazakhstan report would be sent to the SFO on 10 December, although not with its appendices at that stage.

In the afternoon of 12 December, Mr Gerrard sent a letter to Mr Gould as follows:

“As you are aware we have prepared a draft report regarding our investigation into SSGPO, a subsidiary of ENRC.

ENRC entered into a corporate self report process with the SFO under:

• the Attorney General's Guidelines on Plea Discussions in Cases of Serious or Complex Fraud dated 18 March 2009; and

• the Approach of the Serious Fraud Office to Dealing with Overseas Corruption dated 21 July 2009.

We note that the SFO restated its approach to corporate self reports on 9 October 2012. A questions and answers document issued by the SFO… on this date stated that:

If before the publication of the revised policy statements the SFO entered into an agreement, with a corporate body based on an earlier SFO statement of policy or practice, and the corporate body has fully complied with the terms of that agreement, then the previous statement of policy or practice will continue to apply.

Given the restatement, we would like confirmation that ENRC is still part of the corporate self reporting process prior to Dechert submitting our report on SSGPO. Any report submitted by Dechert to the SFO will be submitted under a limited waiver of legal professional privilege for the purposes of the corporate self report only.

Should an equitable settlement not be reached between the SFO and ENRC, please confirm that it is accepted that the report will not be used by the SFO as evidence of any wrongdoing or in any criminal proceedings against either ENRC, any subsidiary of ENRC or any employee or director of ENRC or its subsidiaries.”

It is common ground that Mr Gerrard and Mr Gould had spoken earlier that day, and that at 1:24pm, Mr Gerrard sent to Mr Gould a copy of the letter in draft and he asked Mr Gould to call him to discuss it. The draft was headed “PRIVILEGED & CONFIDENTIAL DECHERT WORK PRODUCT DRAFT 12/12/2012” and it began “Dear Dick”. Otherwise, it was the same as the version sent later that day (“the 12 December Letter”). Mr Gerrard accepted that he probably had no instructions to send a draft and discuss it in this way and I am sure he did not, as he knew at the time.

Mr Milford thought that Mr Gould’s actions were improper. In cross-examination, Mr Gould said that he was being asked how a letter in this form would be received by the SFO. The SFO submits that it is hard to see how such an approach could be against ENRC’s interests, which were that the letter should be well-received by the SFO. However, that depends on what changes might have been suggested by Mr Gould. If changes to make the letter more palatable to the SFO included, for example, the removal or lessening of the assurances sought, that would not be in ENRC’s interests. On any view there was a clear conflict of interest here. The fact that, in the event, it seems that Mr Gould did not suggest any changes is beside the point. He must have appreciated that Mr Gerrard was not authorised to seek his comments on the letter. I think that this was another example of Mr Gould dealing with Mr Gerrard “beneath the radar” (see paragraph 784 above). And it reflects Mr Gould later telling Mr Gerrard expressly that the draft s72 undertaking should not be shared with his clients – see paragraphs 791-793 below. It is also hard to see how Mr Gould thought he was acting in accordance with his Independence Duty to be willing to give input in a letter to be sent from ENRC, the party potentially under investigation, to the SFO in these circumstances. Both Mr Gerrard and Mr Gould were in my judgment, in knowing breach of duty here.

There is a further element to DC20. On 18 December, Mr Gould emailed Mr Rappo, by now Joint Head of the SFO’s Bribery and Corruption Division, and Mr Thompson, attaching a memo recommending that ENRC be offered a s72 restricted use undertaking as a response to the 12 December letter. The draft undertaking included a wide-ranging obligation on the part of ENRC to provide the investigators, through Dechert, with all the information that became available. Mr Gould thought that he might have discussed this with Mr Gerrard and I think this is likely. Mr Gould agreed with Mr Thompson to go through it the following day. However, he also sent a draft of the undertaking to Mr Gerrard who had been chasing a response to the 12 December letter. In sending the draft to Mr Gerrard, Mr Gould said that it had yet to be signed off but should “provide a flavour of where I think we may wish to go”. It appears that he had also said that the undertaking was for Mr Gerrard only to look at it and not to share with the client. It seems that this was to avoid any embarrassment on the part of Mr Gould if, in the event, the SFO did not agree with his approach and the undertaking.

In my judgment, Mr Gerrard was in breach of duty in respect of the draft undertaking in dealing with it at all, once he had received it, and was equally in breach to the extent he spoke to Mr Gould about it earlier on. He had no authority to do this. Moreover, once received, he should have told Mr Gould he was not prepared to deal with it unless his clients could see it. In fact, he sent the draft to Mr Wiggetts and Ms Black, saying that it was “for our purposes only”. It is true that Ms Black informed ENRC that Mr Gould was considering the provision of a s72 undertaking but that had been a week earlier, on 13 December and it is common ground that the draft itself was not shown to ENRC.

As for Mr Gould, not only was he in breach of his own duty to the SFO by sharing a draft with Mr Gerrard but he must have known that Mr Gerrard could not have had authority to deal with it on the basis that his clients did not know about it.

As it happened, nothing came of this draft undertaking and the 12 December letter was not answered by the SFO until January 2013. So not much turns on these breaches. However, DC20 is strong evidence of just how close Mr Gould and Mr Gerrard had got by that stage.

I should add, as a matter of chronology, that Mr Gould also agreed that the time taken by the SFO to respond to the 12 December letter (before which the Kazakhstan report could not be sent) would not “count” against ENRC in terms of the resulting delay in the provision of the report.

Mr Gerrard had been asked by Mr Dalman to contact the SFO after the 7 January SIC meeting and on 11 January, Mr Gerrard reported back that he had done so in respect of the timing of the delivery of the Kazakhstan report and the fact that the aspect of the report dealing with the “stripping” allegations in Kazakhstan was not yet ready. Stripping was the process of removing topsoil and rock to reveal iron ore in preparation for its extraction.

Mr Gould reported on his conversation with Mr Gerrard to Sir David in a memorandum dated 18 January. This said that “there is now some evidence of the involvement of [Ms Zaurbekova] in a dubiously awarded contract in Kazakhstan”. Mr Gerrard admitted that he said as much to Mr Gould in their conversation a week earlier. However, Mr Dalman had told Mr Gerrard at the 7 January SIC meeting not to raise the issue of Ms Zaurbekova further until the SIC had fully investigated the position.

In fact, the SFO knew about Ms Zaurbekova from OM8 and the slides presented there. Nonetheless, Mr Gerrard had been positively told not to mention her and his report back to ENRC did not disclose that he had.

In my judgment, Mr Gerrard was in clear breach of duty because he acted without authority.

However, the position is different for Mr Gould. He would not have known about Mr Dalman’s instructions, nor could they be inferred. And as the information had already been presaged at OM8, I cannot find that Mr Gould knew that Mr Gerrard was not authorised to say what he did. I do not find any relevant breach of duty in relation to Mr Gould.

The response from the SFO to the 12 December letter from Dechert was sent by post on 21 January and received on 23 January (“the Rappo Letter”). It followed an internal SFO meeting on 21 January which itself followed the provision of a briefing note for Sir David on 18 January from Mr Thompson, with input from Mr Gould. The letter (reformatted) said this:

“Thank you for your letter of 12 December 2012 to Dick Gould, which I have been asked to respond to.

In essence you raise 3 matters:

1.

You seek an assurance that ENRC is part of "the corporate self-reporting process" in light of the restatement of the approach to Corporate self-reporting, dated 9 October 2012

2.

You state that any report submitted by Dechert to the SFO will be submitted under a limited waiver of Legal Professional Privilege, for the purpose of the corporate self-report only, and

3.

You seek an assurance that the SFO will not use that report as evidence in any criminal proceedings against ENRC, its subsidiaries or any directors and employees of ENRC or its subsidiaries, should an "equitable settlement" not be reached between the SFO and ENRC.

Regarding point 1:

As you are aware any decision to prosecute unlawful activity will be governed by the Full Code Test in the Code for Crown Prosecutors, the Joint Prosecution Guidance on Corporate Prosecutions and, where relevant, the Joint Prosecution Guidance of the Director of the SFO and the Director of Public Prosecutions on the Bribery Act 2010. As the existence of a criminal investigation is a precondition to the applicability of the Attorney-General's Guidelines to which you refer, I do not accept that they are applicable in this case, at this stage.

One of the factors that the SFO will consider is whether there has been a "genuinely proactive approach adopted by the corporate management team when the offending is brought to their notice, involving self-reporting and remedial actions".

Self-reporting is not, and never has been and never could be, a guarantee that a prosecution will not follow. Each case must turn on its own facts.

In this case the SFO approached ENRC, by means of a letter on 10 August 2011, in relation to allegations that had appeared in the press.

Since that time although there has been a number of meetings between the SFO and ENRC and its legal representatives, and an internal investigation has been on-going, as yet no report nor any supporting evidence has been provided to the SFO. In any event no civil recovery settlement or plea agreement has been reached with ENRC.

We await your reports and will analyse them in detail prior to making any decisions as to the way forward, including any possible prosecutions. You will appreciate that this is the only principled way we can deal with this case, or indeed any other case.

Regarding point 2:

It is a matter for ENRC and its legal advisers as to which, if any, elements of the reports are covered by LPP, and whether they waive any privilege that may attach.

However please be aware that in assessing whether a company has adopted "a genuinely proactive approach" the Guidance on Corporate Prosecutions states that "the prosecutor needs to establish whether sufficient information about the operation of the company in its entirety has been supplied... This will include making witnesses available and disclosure of the details of any internal investigation".

In light of the fact that we have not seen these reports, no assurances can or will be given at this stage that we accept it is subject to LPP or accept any conditions that you propose to attach to service of the reports.

Regarding point 3:

No assurances can or will be given at this stage as to what use the SFO will make of any report that may be provided to it.

The SFO cannot and will not give any assurance in relation to underlying material, or evidence, upon which the reports are based, or which is provided in support of the reports.

We are concerned at the apparent lack of progress since August 2011. We understand that your report on Kazakhstan has been completed, subject to an addendum dealing with the issue of the Chief Financial Officer, and that your report on the Congo is nearing completion. You will appreciate that if we cannot progress these matters with your assistance, we have no alternative but to progress them without your assistance.

Therefore if we do not receive your report on Kazakhstan by close of business on Thursday 31 January 2013, we will have no option but to open a criminal investigation into ENRC's activities there, with a view to the exercise of our investigative powers.

Assuming your report is received, we can agree a timeline for submission of any addendum report in relation to the CFO, and the report in relation to the Congo.”

On any view, this was not the response which ENRC (and in particular Mr Dalman) or Mr Gerrard had been expecting. The SFO had clearly decided to take a tougher line.

On 31 January, Dechert wrote to Mr Rappo enclosing the draft 285-page Kazakhstan report and promising the appendix on the stripping allegations by the end of February. On the same day, Mr Dalman responded to the Rappo Letter in these terms:

“Thank you for your letter dated 21 January 2013 to Mr Neil Gerrard of Dechert LLP. I wanted to personally respond to that letter.

I am both concerned and disappointed with your letter, in particular, your comments regarding the corporate self-reporting process. Dechert have been engaged to conduct an independent in depth investigation exercise, to which the company has devoted a very substantial amount of management time and resource at all levels, and alongside this we have been engaged in an ongoing programme considering and implementing appropriate remedial actions. The SFO have of course been kept well briefed along the way. I can assure you that the committee with responsibility and oversight over this investigation (the "ENRC Special Investigations Committee") has worked tirelessly over the past six weeks.

You will be able to gauge the volume of work that has been carried out when you read the draft report dated 12 December 2012 in respect of Kazakhstan (in the form requested in your letter) that we intend to deliver to you on or before 31 January 2013.

In relation to Africa, that extensive investigation is continuing, fully supported by me and the Board of ENRC PLC. We look forward to engaging with you on the timetable for submission of that report.

It remains our prime objective to reach an equitable settlement between ENRC and the SFO and we want to engage with you to discuss a settlement in relation to Kazakhstan as soon as appropriate.”

In the meantime, the day before the Rappo Letter had been received, Mr Gould and Mr Gerrard had a 19 minute conversation. There are no notes. Mr Gerrard says he was calling to chase the SFO’s response to the 12 December letter. ENRC says that he must have discussed with Mr Gould the substance of the Rappo Letter which had already been sent and that this call was unauthorised. However, Mr Dalman had asked Mr Gerrard to chase the response and to that extent the call was not unauthorised. Mr Gerrard said later, in an email to Ms Coleman, that Mr Gould had told him that a reply could be expected within 12/24 hours, but it would come from a different SFO officer. In essence, that was true.

Despite the length of the call, I am not prepared to find that Mr Gerrard was told of the substance of the Rappo Letter, and in fact it is not alleged that he was in breach by, for example, not communicating this information to the client. So I find there was no breach of duty here by Mr Gerrard. As for Mr Gould, the allegation that he failed to document the call was not put. Accordingly, there was no breach of duty by him, either.

After a short call from Mr Gerrard who was in New York, Mr Thompson returned his call later in the day and they spoke for 15 minutes. Mr Thompson made a manuscript note which he later typed up and also sent an email about the conversation to Mr Rappo and Mr Coussey. The latter read thus:

“Note of my phone call to NG at 1650 today:

I called NG on his mobile - he was in the USA. We discussed his client's position and where they are with reporting to us.

Re Kazakhstan, they have largely completed the additional work on the stripping contracts and the more recent allegations about the CFO. The stripping contracts have been found to be consistently inflated/fraudulent by about 30%. The position with the CFO is that whilst they have found "unfortunate coincidences" the allegations have not been substantiated. His overall view is the there is insufficient evidence to amount to relevant criminality for our purposes (though some sort of civil action or referral to UKLA could be considered). However he said that his current report on these points is still in draft and is subject to: firstly a need for experts to agree; and secondly Board approval. He described the Board as nervous after Patrick's latest letter. In consequence he is seeking an extension of time to report properly to us towards the end of March.

In respect of Africa he was vague but what he said was very interesting. He described the situation as complicated but more concerning for the Board. He said he thought that he had taken his work as far as he could without there being a risk to any investigation we might wish to carry out. I think this was in respect of risks of loss of evidence or by alerting potential suspects, but he was not at all specific. He said he would ideally like to come and meet us about this and explain further.

I said I would relay all this to Patrick and we would get back to him. NG said he would be back in the UK 0730 on Thursday and would be keen to meet next week if at all possible (in addition to knowing our view on the delivery of the Kazakh addendum reports).

My inference from what he said is that there is some real substance to the issues found in Africa, presumably in respect of the Camrose transaction and the cash payments previously flagged as unaccounted for. I would suggest that we agree our position and Patrick relays this to him when he is back in.”

ENRC’s case here is that the first two paragraphs of the information communicated to Mr Thompson were both plainly against ENRC’s interests. In fact, in respect of Mr Thompson, only, the second paragraph was put to him and as for Mr Gerrard other parts were, too, but the second paragraph was emphasised. So far as the first paragraph was concerned, this at least had some relevance to what Mr Gerrard said was the reason behind the call, namely to extend the time for the provision of the final version of the Kazakhstan report which would include the stripping allegation information, until towards the end of March. It appears that the reference to the excess on the stripping contract being 30% is wrong because it was later shown by KPMG to be 10%. But overall, I do not see that what he said is necessarily unauthorised since he was reporting where he was up to in the production of the final report. Mr Gerrard could not have been authorised to say that the Board was nervous, however, and that was a breach of duty although where it goes is another matter. For the avoidance of doubt I do not find any breach of duty on the part of Mr Thompson in respect of this first paragraph.

As for the second paragraph, that is clearly what interested Mr Thompson more. There is a preliminary question as to what exactly Mr Gerrard meant when he said (according to the email):

“… He thought that he had taken his work as far as he could without there being a risk to any investigation we might wish to carry out. I think this was in respect of risks of loss of evidence or by alerting potential suspects, but he was not at all specific. He said he would ideally like to come and meet us about this and explain further.”

In his WS, Mr Gerrard said that what he had said was that he had taken his work as far as he could without there being a discussion with the SFO about how his investigation should proceed. That is not quite what Mr Thompson reported in his email and I have no reason to think that what Mr Thompson reported here was not accurate. In Mr Thompson’s WS he did not elaborate on what had been expressed in the email.

ENRC contends that Mr Gerrard was saying that he could not do further work on Africa without creating a risk to any future criminal investigation into ENRC, and this was extremely prejudicial because it was suggesting that if he carried on with his own work his own client would destroy evidence which would hamper any SFO investigation.

However, in evidence, Mr Gerrard, and later Mr Thompson, said that what was being said was different; it was that Mr Gerrard’s work might risk a later investigation not into ENRC but into certain individuals (like Mr Hanna) and was not about ENRC’s corporate position at all. Since Mr Gerrard did not act for any individuals, he owed them no duty and was not, therefore, acting against the interests of ENRC at all. Indeed, in seeking to protect the SFO’s position as against individuals, he and ENRC could be said to be co-operating as fully as they could. Moreover, there were cases where the SFO made a civil settlement with the company but then investigated individuals and this possibility had been recognised here, much earlier.

At one point in his evidence, Mr Gerrard also said that he had actually had authority from ENRC to express his concerns about continuing his work, but there is no evidence to back this up and I reject it. He also explained his statement by reference to the fact that “authorities like to know before you start trampling on the evidence in respect of individuals” but I do not regard that as a plausible interpretation of what he was saying at the time. Quite apart from anything else, Mr Gerrard was suggesting that he might have to stop work altogether on Africa not just work that might possibly prejudice an investigation into individuals. And his reference to “any” investigation which the SFO might want to carry out was surely in relation to (or certainly inclusive of) ENRC itself.

In cross-examination, Mr Thompson also drew this distinction and said that the reference to an investigation could have been to individuals and this might have assisted ENRC as against the SFO. But I did not find his evidence on this distinction any more persuasive than Mr Gerrard’s, especially as he did not mention it in his WS. Moreover, the context here was that of the Board being nervous and then Mr Thompson’s inference that there could be lots of evidence and his view that there was now real substance to the issues in Africa, which must have been as against ENRC and not simply individuals.

The following points should also be made about the supposed companies/individuals distinction. All of this was in the context of Africa. At OM8, Mr Dalman had suggested that a report could be produced by the end of March. But as at 27 February, there was no sign of it, and of course there was now the added pressure of the Rappo Letter. On the face of it, and as indicated by Mr Gerrard, there were matters of substance to be investigated and which would form the subject matter of the Africa report. Without a report, there was no prospect of a civil settlement regardless of any updates along the way, because that is what the SR process required.

When, therefore, Mr Gerrard said that he was not sure if he could continue his work, that would mean an end to Dechert’s investigations in relation to Africa for ENRC, which was designed to produce a report. That (very serious) possibility existed, whether the SFO was contemplating an investigation into individuals or into ENRC itself. If Mr Gerrard did stop work, then someone else would have to take over or otherwise there would be no report, in which case the only course for the SFO (other than doing nothing) would be a criminal investigation.

Further, Mr Thompson rightly guessed that the prejudice to an investigation might be the loss (i.e. removal or destruction) of evidence or alerting possible suspects. Nothing here suggested a distinction being drawn between a possible future investigation into ENRC and into individuals.

On any view, therefore, Mr Gerrard was saying that he might have to stop work (and therefore acting for ENRC) in order not to prejudice some possible investigation by the SFO into ENRC and/or individuals within it. It is quite impossible to see how this could be said to be in the interests of ENRC since it implies a loss of evidence and/or alerting suspects within ENRC.

Mr Rappo spent much time in cross-examination (relied upon by Dechert and the SFO to support the individuals/company distinction) saying that it might very well be in the interests of a company which was seeking a settlement to agree, as part of that settlement, to assist the SFO in any criminal investigation against individuals. I see that, and indeed, as Mr Thompson’s note to Mr Gould of 18 January recounted, Mr Dalman had said that the company was willing to assist here if necessary. But that is all in the context of some overall deal. That is not what Mr Gerrard was talking about here; he was talking about cutting his work short because of a risk of evidence going missing which could hinder any SFO investigation.