Case No: FL-2022-000024; FL-2022-000025, FL-2022-000026, FL-2022-000027, FL-2023-000004, FL-2023-000009, FL-2023-000024
FINANCIAL LIST
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Before :
THE HON. MR JUSTICE BRYAN
Between :
AABAR HOLDINGS S.À.R.L & OTHERS Claimants |
- and – |
(1) GLENCORE PLC (2) MR IVAN GLASENBERG & OTHERS Defendants |
Andrew Onslow KC, Richard Mott and Usman Roohani (instructed by Stewarts Law LLP, Quinn Emanuel Urquhart & Sullivan UK LLP, Pallas Partners LLP, and Bryan Cave Leighton Paisner LLP) for the Claimants
Richard Hill KC and Gregory Denton-Cox (instructed by Clifford Chance LLP) for Glencore
Andrew Lodder (instructed by Steptoe International UK LLP) for Mr Glasenberg
Hearing date: 2 October 2025
Approved Consequentials Judgment
.............................
MR JUSTICE BRYAN :
A.INTRODUCTION
The parties appear before the Court on the hearing of matters consequential upon the Court’s judgment dated 28 August 2025 (“Judgment”) in respect of the Disclosure Restriction Applications (“Applications”) made by the First and Second Defendants/Applicants (“Applicants”), and which is reported at [2025] EWHC 2243 (KB).
For the purposes of this Consequentials Judgment it is unnecessary to recount the factual background to the English Proceedings and the Applications, which are addressed at length in the Judgment, and to which reference can be made.
The following matters arise for determination on this consequentials hearing:
The wording of the confidentiality ring order (“CRO”). The Claimants submit that the CRO should be made in the terms proposed by the Claimants, whilst Glencore and Mr Glasenberg submit (in particular) that it should be an “external eyes only” confidentiality club.
The deadline for disclosure of the documents the subject of the Applications (the Claimants submit within 2 days, Glencore and Mr Glasenberg submit within 14 days).
Who should bear (i) the costs of Glencore’s Application which related to alleged restrictions under Dutch law, and (ii) the costs of Mr Glasenberg’s Application. Glencore and Mr Glasenberg submit that they should each be costs in the case whilst the Claimants submit that Glencore and Mr Glasenberg should pay the Claimants’ costs in relation to their respective Applications. It is agreed that in relation to the costs of Glencore’s Application that, insofar as the costs related to alleged restrictions under Swiss law, they should be costs in the case; and in relation to Canadian law, they should be reserved.
The amount of the payment on account, and when the detailed assessment should take place. For their part the Claimants submit that a payment on account of 70% should be ordered and that there should be detailed assessment forthwith.
B.THE WORDING OF THE CONFIDENTIALITY RING ORDER
I invited the parties to agree the wording of a confidentiality club in advance of Judgment. A draft CRO, which was annotated with the parties’ respective competing suggestions, was supplied by the parties to the Court on 23 July 2025 (the “Draft DRA CRO”).
In circumstances in which I had not heard full argument on such matters, and in circumstances where I anticipated that the parties might be able to narrow the differences between them on the wording of the DRA CRO, having had sight of the contents of the Judgment and the findings made therein, I deferred the resolution of the differences between the parties on the precise wording to the present hearing (as identified at [204] of the Judgment). In the event the parties did not engage in any further correspondence in relation to the terms of the Draft DRA CRO following the receipt and hand-down of the Judgment.
The essential scheme of the DRA CRO has been agreed. Broadly:
The DRA CRO relates to the “DRA CRO Documents” (i.e., the FIOD Documents and MLAT Request) and the information contained in them (“Confidential Information”).
Paragraph 2 provides that:
If and when those documents are produced for disclosure, they are to be provided subject to the terms of the DRA CRO and made available solely to the DRA CRO Members.
No DRA CRO Document, or Confidential Information, is to be made available to any other person or party, save in accordance with the terms of the DRA CRO.
There is a dispute as to who should be the members of the CRO. Subject to the resolution of that dispute, each eligible person is required to sign an Undertaking before becoming a DRA CRO Member (see the definition of “DRA CRO Member” at paragraph 1(e)). The solicitors for each of the parties shall maintain a register of the DRA CRO Members for that party (paragraph 6), and there are provisions for the addition and removal of Members.
There are provisions in relation to the destruction of Confidential Information (paragraphs 11 to 12), and for the confidentiality obligations to continue following the conclusion of the Proceedings (paragraph 13).
The points of difference between the parties are as follows:
The Applicants seek a CRO on “external eyes only” (“EEO”) terms, whereas the Claimants propose what they characterise as a “conventional” (i.e. not an EEO) CRO. This explains the differences in the parties’ rival drafting at paragraphs 1(c)(ii), 1(k), 8 and 9 of the Draft CRO.
The “exceptions”, which it is submitted are needed to allow the Claimants’ lawyers to make use of the confidential documents in order to (i) provide information and advice to their clients, so long as that advice does not enclose or convey the gist of the documents (paragraph 3(a)) and (ii) instruct experts (paragraph 3(b)).
Minor points of difference, concerning paragraph 4 of the Draft CRO and paragraph 8 of Schedule A to the Draft CRO.
Other points of difference (paragraph 8, 9, 11-13 and paragraph 3 of Schedule A to the Draft CRO) are consequential on the issues above.
B.1 Relevant principles
The relevant principles were common ground between the parties. In this regard the question of whether a CRO should be granted on EEO terms was recently considered in Persons Identified in Schedule 1 v Standard Chartered plc [2025] EWHC 2136 (Ch) (“Standard Chartered”). It is accepted by Glencore and Mr Glasenberg that an EEO confidentiality ring is exceptional, and that it is for them to justify why it is necessary in the particular case.
As Michael Green J noted in Standard Chartered, while the parties were agreed on the relevant legal principles, “it is as well to remind ourselves of them, in particular the exceptional nature of any form of CRO and especially an EEO CRO” (see at [117]). The principles were stated by Cockerill J in Cavallari v Mercedes-Benz Group AG &Ors [2024] EWHC 190 (KB) at [20]-[33] (“Cavallari”) and cited in Standard Chartered at [118].
In summary:
The starting point is the principle of open justice (Cavallari at [22]).
It follows that each party should generally have unrestricted access to the other’s disclosure, protected by the collateral undertaking at CPR r. 31.22, which in the vast majority of cases will be sufficient (Cavallari, at [24]).
Confidentiality orders offering enhanced protection beyond the collateral undertaking are therefore “the exception rather than the rule” (Cavallari, at [25]).
A confidentiality ring involves a departure from the open justice principle which must be justified (Cavallari, [at 26]). Accordingly:
As Hamblen J made clear in Libyan Investment Authority v Société Générale SA[2015] EWHC 550 (QB) (“LIA”) at [21]: “It is for the person seeking the imposition of a confidentiality club to justify any departure from the norm”.
Further, any restriction should “go no further than is necessary for the protection of the right in question” (LIA, at [21]-[22]).
As Roth J explained in Infederation Limited v Google LLC [2020] EWHC 657 (Ch) at [42]:
“… the important points to emerge from the authorities are that: (i) such arrangements are exceptional; (ii) they must be limited to the narrowest extent possible; and (iii) they require careful scrutiny by the court to ensure that there is no resulting unfairness”.
Accordingly, in Cavallari, Cockerill J held at [27]:
“With that scrutiny in mind, the burden lies on those seeking to displace the application of the open justice principle to produce clear and cogent evidence to explain why that departure is justified: the “real risk” of the right of inspection being used for a collateral purpose. It must be shown that “by nothing short of the exclusion of the public can justice be done” (Scott v Scott [1913] AC 417, per Viscount Haldane at page 438, and per Earl Loreburn at page 446). The question is not one of convenience, but of necessity (Al Rawi v Security Service [2011] UKSC 34…)”.
In Cavallari, Cockerill J observed at [31] that the imposition of a confidentiality club and, if so, its terms, generally involves a balancing exercise, and referred to the “inherent desirability of including at least one duly appointed representative of each party within a confidentiality club”.
In Standard Chartered, Michael Green J therefore proceeded on the basis that “it is, therefore, for the Defendant to demonstrate why such exceptional orders in exceptional EEO terms should be made in this case” (at [119]), explaining that (at [120]):
“A CRO on EEO terms is wholly exceptional. It prevents the lawyers for that receiving party from discussing the documents and giving advice on them. If that party wished to rely on those documents for the purpose of amending their pleadings, there would be difficulties in taking instructions to such effect and providing a statement of truth, although Mr Handyside did suggest a way round that. Furthermore, the Claimants in this case have obligations towards their funders to keep them informed as to the material developments in the proceedings and it is necessary for a representative of the funders to be kept fully abreast of all developments and to discuss the impact of new significant evidence coming to hand. It is obvious that the Defendant must show a very good justification for preventing representatives of the receiving party and their funders from being party to the confidentiality ring.”
Michael Green J concluded, after considering the Defendants’ arguments, (at [126]):
“… there is no justification for limiting the CRO to EEO terms. That can only be done where there is some valid distinction to be made between disclosure to a party’s lawyers and a very small number of representatives of the Claimants and their funders. The Defendant does not suggest that such representatives cannot be trusted to comply with their undertakings to the Court, which they will give so as to be part of the ring. Nor is there commercially sensitive material being disclosed or trade secrets or patent designs that could be abused by a competitor or rival. That is the normal justification for an EEO restriction. There is nothing like that in this case.”
B.2 The Parties’ submissions
In the present case Glencore and Mr Glasenberg submit that the CRO should be on an EEO basis as a CRO in its most restrictive form will minimise the risk of prosecution by the DPPO, and it is submitted that such restrictions are, in that context, justified and appropriate. For its part the Claimants submit that such an order is only appropriate in exceptional circumstances and that the Applicants have not begun to discharge the burden upon them to justify such an order.
At the outset I note that, subsequent to judgment being handed down, Glencore has provided a copy of the Judgment to the DPPO and engaged in correspondence via the lawyers De Brauw with the DPPO (although privilege has not been waived in respect of that correspondence).
That has resulted in a very late sixteenth witness statement of Luke Richard Tolaini of 1 October which was served after close of business yesterday (“Tolaini 16”). I have nevertheless had the opportunity to consider that, and had regard to such evidence.
It is clear that the DPPO continue to have, and to express, concerns about any dissemination which would risk documentation reaching those who are under investigation in the Dutch proceedings. However, in circumstances where privilege has not been waived and there is very limited information before me, there is a limit to which the position of the DPPO since judgment takes matters any further. Mr Tolaini’s statement ends at paragraph 14 by saying as follows:
“I understand that De Brauw has identified to the DPPO the points of dispute between the Parties in respect of the DRA CRO and that the DPPO has indicated that it prefers Glencore’s approach, although the DPPO has not provided detailed comment or explanation in relation to the particular provisions of the DRA CRO.”
I bear in mind the expressed position of the DPPO although, as Mr Hill KC and Mr Lodder realistically accepted, I have very little detail in relation to that, and it does not appear that the DPPO itself has entered into detailed communications about the detail of the CRO itself.
Glencore make a number of general points to be born in mind when considering the competing proposals. First, they point out that the intention is that the existence and terms of the DRA CRO will reduce the risk of prosecution, and part of the Court’s reasoning in dismissing the application and requiring disclosure was that the imposition of a confidentiality club would reduce any risk of harm to the ongoing Dutch Investigation (i.e. the concern identified by the DPPO), and thereby reduce the risk of a prosecution ensuing, not least once the DPPO were aware of “the rigorous restrictions imposed by such confidentiality club” (see the Judgment at [203] to [204] and see also at [71(8)], [72(4)] and [75].
Glencore drew attention to the fact that the final recital to the Court’s Order records the Court’s conclusion that the documents that fall to be produced should (subject to further order of the Court) be subject to appropriate confidentiality provisions, including so as to minimise the risk of disclosed information being disseminated to persons under investigation by the DPPO. It is said that the more tightly the DRA CRO is drawn, the more effective it will be in minimising the risk of disclosed information being disseminated and thereby reducing the risk of prosecution.
This is true so far as it goes. However it has to be viewed in the context of the Court’s findings that no offence has been made out, and the Court’s findings as to the lack of risk of prosecution. What is required is a CRO drafted in appropriate terms with appropriate confidentiality provisions which will minimise the risk of disclosed information being disseminated to persons under investigation by the DPPO, and which will, therefore, reduce still further any residual risk of prosecution (if that were possible). However it is not a justification for the making of an unduly restrictive CRO having regard to the applicable principles that I have already identified and bear in mind.
Secondly, Glencore notes that the intention is to reduce the risk of prosecution by the DPPO itself i.e. to enable the DPPO to be satisfied that the risks it has identified are minimised by the fact that disclosure will be subject to the DRA CRO. In this regard Glencore notes that the DPPO has already rejected one proposed confidentiality club. Whilst this is true, that is set against the backdrop of the DPPO correspondence in which the DPPO did not identify that any criminal offence would be committed, the inability of the DPPO to give its consent in any event, and the findings that the Court has made both in relation to no offence being committed and the lack of risk of prosecution.
In addition, as Mr Onslow KC pointed out in the course of his oral submissions today, the position in relation to the original proposed confidentiality club order is somewhat historic and matters have moved on in terms of the drafting of the order.
I nevertheless bear in mind that the DPPO had rejected historically that proposed confidentiality club and continues to prefer the position in terms of drafting suggested by Glencore, albeit at a very high level, and without any detail in the material before me.
Glencore submits that a stringent regime will be necessary in order to seek to persuade the DPPO that its concerns have been addressed, and the DPPO may not be persuaded, or reassured, to be told that a provision is or may be common in confidentiality ring orders in civil proceedings in this jurisdiction.
I consider a number of points can be made about this. First, not only have the DPPO already had the benefit of this Judgment but they will also have benefit of this consequentials judgment, which will explain why (appropriate) restrictions are in place. They are to be credited with having an understanding of the English law principles which have been identified in this judgment, and there can be no suggestion that such principles will be alien to any foreign body (including the DPPO and the Dutch courts).
Second, it is not about what is common in confidentiality ring orders, but what is appropriate having regard to the rationale of such orders set against the backdrop of the applicable principles.
Third, I consider that the DPPO is likely to take cognisance of the fact that the CRO made will be the one that the English court considers appropriate in furtherance of its aim of minimising the risk of disclosed information being disseminated to persons under investigation by the DPPO.
Glencore’s third general point is that the DRA CRO will only be concerned with up to four documents (assuming that all the FIOD Documents prove to be relevant and disclosable). Accordingly, it will not be a case in which complying with the terms of the DRA CRO would be likely to cause onerous logistical difficulties in keeping track of numerous documents. That is true, but far from being a justification for an overly restrictive order, the limited number of documents means that the provisions of the DRA CRO should be more easily enforced, and the risk of disclosed information being disseminated to persons under investigation by the DPPO still further reduced.
Glencore’s fourth general point is that the parties will have liberty to apply. It is submitted that a tight CRO in the first instance is justified, against the possibility that if that does cause difficulties, the Claimants may seek an order to permit further use. It is submitted that this is especially the case as, not least given the small number of documents, some of the provisions argued for by the Claimants may never prove necessary, but may cause the DPPO concern because they (on the face of it) allow for the possibility of further dissemination.
For example, it may never be necessary to show any of the documents to any of the experts (in the fields of equity capital markets, compliance, and equity derivatives valuation). The inclusion at this stage of a provision which permits disclosure to experts may therefore cause the DPPO additional concern as to the total number of individuals to whom the documents may be provided, which subsequently proves to have been unnecessary; particularly in circumstances where the DPPO has previously rejected confidentiality terms which extended to experts. If the Claimants consider it necessary, they will have liberty to apply, as both the Recital and Order make clear, and that application can then be determined on the basis of what is then known.
I do consider that this fourth point is in play in the present case, and I address it further in due course below, after identifying the more specific arguments of the parties.
Glencore’s overarching submission is that a tight confidentiality ring is required, at least in the first instance, in order to maximise the possibility that rigorous restrictions (taking account of what has previously been rejected by the DPPO) will assuage any remaining concern of the DPPO that the ongoing investigation would be harmed, thereby minimising any risk of prosecution.
Turning to Glencore’s and Mr Glasenberg’s more detailed submissions. In terms of who should be included in the DRA CRO, they propose that the DRA CRO should be limited (at least in the first instance) to the Director Defendants, external legal advisors (solicitors and counsel for the parties in these proceedings), and two Glencore in-house lawyers: i.e., that it should not extend to the Claimants’ in-house lawyers. In contrast, the Claimants propose that the CRO should extend to all “Relevant Internal Legal Advisors”. That term is defined to mean in-house counsel listed in each party’s DRA CRO Register who have signed the Undertaking. As drafted, the Claimants’ proposed wording does not impose any limit on the number of in-house counsel that may be listed.
As already noted, both Glencore and Mr Glasenberg acknowledge that an EEO confidentiality ring is exceptional, and it is for them to justify why it is necessary in any particular case (as identified in Standard Chartered at [117] – [127]).
They submit that such a regime is justified here, at least in the first instance for the following reasons:
The proposal put to the DPPO in October 2024 on behalf of the Claimants was that the documents should be made available for inspection by the Claimants’ external legal counsel, any court-sanctioned expert appointed in these proceedings, and up to three named individuals from among the in-house legal counsel for each Claimant Group, but would not otherwise be shared with the Claimants. That proposal was rejected by the DPPO.The Applicants submit that the DPPO is concerned about any dissemination of the documents, and it is said that this is a strong reason to limit disclosure only so far as is strictly necessary, bearing in mind the intended purpose of the CRO. The DPPO’s refusal of consent in the context of a confidentiality club is, however, also to be seen in the context of the fact that the DPPO was not, in any event, in a position to give its consent. I agree that the expressed position of the DPPO is a reason to limit disclosure only so far as is necessary. That does not mean, however, that the exceptional course of an EEO order should necessarily be made.
The Applicants submit that it is not yet known whether it will ever be necessary for the documents disclosed (assuming they are relevant) to be disseminated beyond external counsel. I have some difficulty with that submission to the extent that it related to any further dissemination including, in particular to internal counsel. Whilst it is, of course, theoretically possible that there might be no need to advise (and/or seek the instructions of) internal counsel, the reality is that external counsel are likely to need to seek instructions and the reality is that at least a limited cohort of internal counsel are likely to need to be involved to give internal advice as part of their role. Indeed, as Mr Onslow KC pointed out in the course of his oral submissions, internal counsel are embedded within corporations and are part of the very structure of the giving of advice within the company. I note that this is, indeed, the fall-back position of the Applicants, namely that if the Court does not consider that an EEO is appropriate, then if it is extended beyond EEO it should only be to a limited and defined number of in-house counsel.
It is not clear whether the Claimants intend that the members would include in-house counsel for each of the Claimants. Their proposed wording extends to “in-house counsel for the Parties listed in each Party’s DRA CRO Register”. Without more, that would permit unlimited in-house counsel for each Claimant; and in any event would appear to go wider than the terms proposed to the DPPO in October 2024. Of course, the main thrust of this point would be ameliorated if the wording was limited to a specified number of in-house counsel. In the event that was what was addressed, and contemplated, during the course of the oral argument before me.
There are more than 130 individual Claimants, who are based in multiple jurisdictions. It is said it is reasonable to assume that the more members of the DRA CRO there are, the more concerned the DPPO would be as to its effectiveness and of the risk of prejudice to its investigation. The DPPO was not satisfied by a proposal that was limited to a limited number of in-house counsel, namely three per Claimant team. It would also be reasonable for the DPPO to be concerned, it is said, about documents being passed to in-house counsel who are not within England & Wales (and who therefore, on the face of it, may be less experienced with complying with an English confidentiality regime, or less concerned with complying with an English order, than the English lawyers on the record for the Claimants in the proceedings). Again the main thrust of this point would be ameliorated if, as was discussed in oral argument, only a limited number of in-house counsel were specified, and I do not consider there is any real substance in the suggestion that in-house counsel would not have the experience or intention to abide by the English proceedings order.
For its part, the Claimants submit that Glencore cannot establish, and has not established, that an EEO confidentiality order is necessary, and invite the Court to follow the approach in Standard Chartered and make a CRO on ordinary (i.e. not on EEO) terms. As in Standard Chartered, there is no commercially sensitive material, trade secret or patent design in the FIOD Documents or the MLAT Request. Likewise, it cannot be suggested that the Claimants’ internal legal advisors are not to be trusted to comply with their undertakings to the Court. It is simply not necessary for the CRO to be made on EEO terms. It is also submitted that the DPPO has given no positive indication beyond what is recounted in Tolaini 16 as to precisely why it requires particular terms of the CRO and why, other than in the most general of terms, it prefers the proposal advanced by Glencore.
The point is also made (as recognised in the Judgment at [67]) that the DPPO does not, in fact, have any power to give consent in any event, even if it had been desirous of doing so.
B.3 Discussion
The purpose of a confidentiality club is to reduce any risk of harm to the ongoing Dutch investigation (which is the basis for the expressed concern of the DPPO) and thereby reduce the risk of a prosecution ensuing. However, that has to be viewed in the context of the findings of the Court not only as to no offence being committed (and the correspondence with the DPPO in that regard) but also in the context of the Court’s findings as to the lack of risk of prosecution.
Thus the intended confidentiality club is to reduce the risk of prosecution still further to the extent that any risk remains, which can be done by reducing the risk of disclosed information being disseminated to persons under investigation by the DPPO. That can be achieved by a confidentiality ring order that does not extend to an EEO order. The confidentiality club order that I propose to order will itself show to the DPPO that appropriate steps have been taken to reduce the risk of disclosed information being disseminated to persons under investigation by the DPPO. I see no reason, for example, why dissemination to internal counsel gives rise to any increased risk of dissemination to those under investigation by the DPPO.
The Applicants have not discharged the burden upon them to justify why an EEO order is necessary and should be made. Such an order, I am satisfied, is not necessary to reduce the risk of disclosed information being disseminated to persons under investigation, and to reduce the risk of prosecution further. Furthermore, such an order would hinder internal lawyers from being aware of the content of the documents and providing advice to the Claimants as part of their role as internal counsel. This is an artificial constraint which is likely to hinder the giving of advice, and the undertaking of further steps by parties (including should an application be needed to be made to the Court to loosen the terms of the confidentiality ring).
Paragraph 3(a) deals with the provision of information to clients and is designed to ensure that the Claimants’ lawyers can continue to provide appropriate advice to their clients, and that the internal lawyers can also do so and review the relevant confidential documents. I consider that an order should be made in such terms (with the minor drafting amendments to that paragraph proposed by the Claimants).
However, in relation to paragraph 3(b), I consider there is force in the Applicants’ submission that there is no necessity for expert witnesses to be included within the confidentiality ring at this stage. It may well be, depending on the relevance of the documents and/or their nature, that it may prove neither necessary nor appropriate to instruct, or communicate with, any particular witness. If it does become necessary then the Claimants can always apply under the liberty to apply. I do not consider that such a course would be likely to cause any significant delay or any prejudice. Such an application could be made on paper (at least in the first instance) and in short order. If available, such matters could be put before me on paper, or if I am unavailable due to other judicial commitments, before any other judge authorised to sit on Financial List cases. Accordingly, I do not consider it appropriate to include the proposed paragraph 3(b) at this time.
The Claimants propose paragraph 4 of the Draft CRO to cater for a situation where they already have, or subsequently come into possession of, information contained in the relevant documents through other channels. Given the breadth of the definition of “Confidential Information” at paragraph 1(a) of the Draft CRO, this paragraph is required to ensure that the CRO does not have any broader application than intended. The Applicants are content to agree to the inclusion of this paragraph and I so order.
There are minor differences between the parties in relation to paragraphs 3 and 8 of Schedule A. As to paragraph 3, I consider that the proposed additions suggested by the Claimants and the Applicants, respectively, are appropriate. As to paragraph 8, I do not consider that it is necessary or appropriate to require support staff to provide written confirmation of notification of the terms of the Undertaking. I do not consider that such additional comfort is needed.
Turning to the question of the number of internal advisers who should be within the scope of the CRO. As already foreshadowed, the parties addressed the Court in relation to that during the course of their oral submissions. Mr Onslow KC indicated, as I had anticipated, that he was not intending that there should be a very large cohort of in-house lawyers that would be within the scope of the order. He invited the Court to include up to four in-house lawyers per Claimant group. That seemed to me to be a large number of in-house lawyers, and I asked him to explain why up to four in-house lawyers were required. Mr Onslow KC clarified that, in fact, this related to only one of the groups, the BCLP group, where up to four might be needed due to the position in relation to that group and their in-house lawyers being “in transition”.
Mr Onslow KC was not, however, able, given the extent of his instructions, to elaborate further as to why up to four in-house counsel might be required, although it is not difficult to envisage situations where there might need to be hand-over between in-house lawyers, for example where in-house lawyers leave a firm or area of responsibility, or indeed where lawyers are absent for periods of time, either on sabbatical or on maternity or paternity leave.
For their part, Mr Hill KC and Mr Lodder urged me to keep the numbers of in-house lawyers as low as possible. I asked both them and Mr Onslow KC why that could not extend to, but be restricted to, two in-house lawyers, because it is easy to see why it might be necessary not to restrict matters to one in-house lawyer, which could be unduly restrictive, particularly in the absence of one of those lawyers.
Ultimately Mr Hill KC and Mr Lodder were not able to identify any reasoned objection if I was against them on the point of principle as to why there should not be up to two. And equally, and apart from the point that Mr Onslow KC had made about transition and the BCLP group, he was not in a position to give any further reasons why there should be more than two.
I consider the appropriate number is up to two in-house lawyers per Claimant Group, save in respect of the BCLP group. In respect of the BCLP group, if they wish the order to be extended to more than two in-house lawyers, they should provide a more substantive explanation as to the reason as to why more than two are needed. I do not consider that there should be any difficulty in doing so, even having regard to privilege, if, as seems likely, there must be some factual reason which does not go to the merits of the litigation as to why more than two in-house lawyers need to be included.
So the order will record “up to two in-house lawyers”, and if the BCLP group wish that to be varied to extend beyond that, then they should write substantively to the Applicants explaining why they wish more than two to be included. In the usual way, and in the context of the spirit of cooperation between commercial solicitors that this Court expects, I would expect that the matter could be resolved between them without the involvement of the Court. If, exceptionally, that could not be done, it could be dealt with in short order, and at little cost, by way of written paper application to the Court.
The next issue that arises is when the FIOD Documents and the MLAT Request should be provided by, in the former case if relevant. The Claimants submitted within 2 working days. Glencore asked for 14 days. The judgment was circulated in draft on 18 August 2025, some six weeks before this hearing. The consequentials hearing was adjourned at the request of Mr Glasenberg due to the availability of his counsel in a request supported by Glencore, and the Judgment was handed down on 28 August.
Glencore gave an explanation as to why they needed 14 days. The position appears to be that they have not in fact yet reviewed the documentation. The reasons given included whether or not to seek permission to appeal from the Judgment, and to allow time for liaison with the DPPO.
From what I have been told, and from Tolaini 16 itself, it now appears that Glencore are not going to be seeking permission to appeal the Judgment, and they have engaged in correspondence with the DPPO in the meantime, albeit they have only communicated very late to the Court (last night) what the outcome of those communications are.
The reality is that we are where we are in terms of timing in the sense that, for good reason or bad, essentially it is a standing start in terms of the review of the Glencore material. Mr Onslow KC was understandably not sanguine about the passage of time and the fact that the documentation has yet to be provided, but ultimately recognised, realistically, that the documentation does have to be reviewed for relevance, and given the DPPO stance and the possibility that it may request redactions, which may or may not, of course, be capable of being accommodated in accordance with the terms of my Judgment and the order in this judgment, it is inevitable that a period of time will be needed.
In those circumstances, and set against the backdrop that the wider position in relation to disclosure has a date of 30 October2025 in relation to it, I order that the MLAT Request, and those of the FIOD documents which prove to be relevant, are provided within 14 days.
I should say that I consider the position to be the same in relation to the MLAT Request notwithstanding the fact that, in the case of the MLAT Request, the document is already available, as there may still have to be a consideration of whether redactions are needed, and can properly be made.
C.COSTS
C.1 Applicable Principles
CPR r.44.2 provides, so far as is material:
“(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
…
(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; …”
In Merck KGaA v Merck Sharp & Dohme Corp [2014] EWHC 3920 (Ch) (“Merck”), Nugee J. said at [6]:
“… It is in general a salutary principle that those who lose discrete aspects of complex litigation should pay for the discrete applications or hearings which they lose, and should do so when they lose them rather than leaving the costs to be swept up at trial…”.
The Claimants refer to the costs order made in LLC Eurochem North-West 2 & Anor v Societe Generale SA & Ors (Re Costs) (“Eurochem”), in which there was a disclosure application heard by Bright J that did not succeed and which led to a judgment on costs reported at [2025] EWHC 1999 (Comm) in which the unsuccessful party was to pay the costs in relation to that application. Reliance was also placed on the costs order made in the “PIFSS” litigation (Public Institution for Social Security v Al-Wazzan [2023] EWHC 3602 (Ch)).
In that litigation too, as in Eurochem, the unsuccessful partly in relation to the disclosure variation application was ordered to pay the costs of the successful party on that application which is the costs order that the Claimants invite me to make in this action.
In the PIFFS litigation, on the failure of the “Bank Mellat” application in that case (Bank Mellat v HM Treasury [2019] EWCA Civ 449), Henshaw J held that costs should follow the event, stating at [1] to [3]:
“1. This application was a long way from ordinary CMC business. It was a discrete application involving distinct parties; and it was a heavy application, including expert evidence of Swiss law, which was argued for a full day and led to a separate substantive judgment. It is the type of application on which a separate costs order is appropriate.
2. The applicants’ objective was not merely to obtain some protection, but to resist disclosure; and PIFSS’ objective was to obtain disclosure. PIFSS succeeded and the applicants did not… The basic position is that PIFSS was successful and that the applicants were unsuccessful in the application.
3. Whether or not it was reasonable for the applicants to raise the matter, there is in my view no sufficient reason for costs on the standard basis not to follow the event, so I conclude that PIFSS is entitled to all its costs in principle, to be subject to a detailed assessment if not agreed.”
In relation to the PIFSS litigation and the PIFSS judgment on costs, Mr Lodder on behalf of Mr Glasenberg drew attention to some of the underlying facts in relation to the PIFSS litigation and certain paragraphs of the judgment of Henshaw J which showed that the party which was resisting disclosure had indeed been resisting disclosure in the foreign jurisdiction and he sought to pray that in aid as a reason why the PIFSS litigation costs order and judgment should be distinguished and a reason why costs should be in the case.
I do not discern from the reasoning of Henshaw J in the PIFSS judgment that that opposition to disclosure in the foreign jurisdiction was a determinative or indeed, to any important extent, an operative reason for the order he made. I consider it quite clear from the paragraphs I have quoted that the main reason that Henshaw J reached the conclusion he did was upon the application of the general rule and the fact that the applicants were seeking to obtain protection from prosecution was not a reason for there being anything other than the general rule that the costs follow the event. That can be seen in particular in paragraph 3, as I have just quoted above.
That of course was the same conclusion, as I have already foreshadowed, reached by Bright J in the Eurochem litigation.
In addition to that alleged ground of distinction between PIFSS and the present case, given that in the present case Glencore and Mr Glasenberg had liaised with various authorities including the Dutch authorities with a view to seeking consent (albeit that the Dutch authorities are not in a position to give consent ever, as is clear on the expert evidence), the Applicants also rely upon the costs order made by Michael Green J in the context of what is said to be a similar application brought, and lost, by Standard Chartered Plc in the Standard Chartered case. That was a case where (in relation to all the documents in question) the judge concluded that the defendant in that case had not demonstrated any real risk of prosecution (see at [84], [90], [100] and [1120 of the judgment). However in that case (unlike the present case) it was not in issue as to whether any offence was committed.
The parties indicated to me that they were not aware of the judgment of the judge on the issue of costs in Standard Chartered being reported. The Applicants draw attention to the fact that at [135] of the judgment the judge said that although he had found against the defendant, he wished to record that he understood why it had been necessary for it to be bring the application and put forward the arguments that it did, and that he expected that foreign regulators would, as a matter of comity, take into account that disclosure had been ordered after full consideration of their concerns and the requirements of the English law rules of procedure.
Whilst the Applicants submit that “it appears likely that he considered that costs should be in the case on the basis of similar features of the case before him and the Applicants identify in their submissions”, I do not consider it appropriate to engage in what is, in reality, speculation as to the judge’s reasons (which are not publicly known at this time).
In any event, in deciding what costs order to make, the Court will have regard to all the circumstances of the particular case, as CPR r.44.3(4) envisages and as I will do in the present case.
C.2 Submissions and Discussion
In this case, the Applicants make the following points which they submit justify a departure from the general rule in CPR r. 44.2(2)(a) that the unsuccessful party will be ordered to pay the costs of the successful party (the Claimants indisputably being the successful party), and which they say render an order of costs in the case to be the appropriate order to be made in the exercise of the Court’s discretion:
First, they submit that:
“the starting point is that there can be no doubt that the application was one that Glencore was obliged to make – in particular as a result of the Claimants having sought and obtained an order for early disclosure of documents provided to the Glencore Group by the various authorities, in the knowledge that such documents were or would be bound to be the subject of foreign law restrictions (which, as is noted in Judgment paragraphs 46-48, had been explained prior to CMC 1)”.
However the Applicants chose not to resist disclosure in the first place and adopted a cooperative stance at CMC 1. This is therefore a case where there is an existing disclosure order in place. Indeed, it was the very fact of the existing disclosure order in place, and the fact that Glencore and Mr Glasenberg risked contempt, that both Glencore and Mr Glasenberg deployed in evidence in support of their submissions as to why they should be relieved from their obligations in disclosure. Equally, knowing as they later did that documents were or would be bound to be the subject of foreign law restrictions they could have assessed for themselves whether any offence would be committed, whether there was any risk of prosecution and, if reached, where the balance lay.
For the reasons addressed in the Judgment the likelihood is that they would have been advised in the terms of the Judgment and for the reasons set out in the Judgment. In any event it was then a matter for the applicants as to whether to make an application alive to the risk of costs following the event if they were unsuccessful but then weighed against the benefit that any court order might provide to them in reducing the risk of prosecution (even if the price to pay was an adverse costs order). It was also a matter for the Applicants whether or not to adopt a “no stone left unturned” approach to the Applications, and maintain the same in the light of the responsive evidence (and submissions) of the Claimants.
Additionally, it is not difficult to envisage a scenario where, even if they had made an application, it would have been possible to reach agreement with the Claimants as to recitals and terms of the order which would facilitate the benefit that they were seeking, without the consequence of a two and a half-day heavy application in which every point was taken in relation to every issue.
It is then said, first, that despite extensive efforts, and the incurring of considerable cost, consent could not be obtained from the Canadian, Swiss and Dutch authorities by the deadline for bringing the application, and it was therefore entirely reasonable and necessary that the application be made. It is then said, secondly, that the costs of the application insofar as it concerned the Dutch law restrictions were a necessary part of the overall costs of the disclosure exercise: i.e., costs necessitated by the fact that this litigation has been brought, and which would ordinarily fall to be treated as costs in the case.
As to the first point, and as the Claimants point out, it is nether the law nor the Court’s practice, that the maker of a reasonable but unsuccessful application will or may on that basis escape liability for the costs of the successful party. The general rule is that costs follow the event, and the purpose of the costs shifting regime is not to penalise an unsuccessful party but to provide (at least partial) reimbursement to the successful party for the costs to which it has been put.
As to the second part, the costs under consideration are not a necessary part of the overall costs of the disclosure exercise, they are specific and identifiable costs relating to a discrete heavy application that was fought and lost. It is not uncommon that such applications occur in the ordinary course of litigation which has been brought by one party against another. Take the example of where one of the parties is unwilling to provide disclosure of certain categories of document. The other party brings an application for specific disclosure in relation to that. One party will win that application and one party will lose that application. The fact that those costs are part of the exigencies and the normal course of disclosure obligations in litigation is not a reason why the general rule as to costs should not apply and why that successful party should not recover their costs.
It is said that as (as the Court has held) the steps that have been taken by Glencore – including making the application seeking dispensation from disclosure, taking all points reasonably available to it, and proposing a form of draft order – had the effect of mitigating the risk of prosecution, and thereby reducing the prospects of success of the application. In this regard, the fact that disclosure would only be made pursuant to an order of the English Court, which had specifically considered the matters raised in the application, was an important part of the Court’s reasoning in requiring the FIOD Documents to be disclosed (see e.g., Judgment [72], ]189]-[194], [195]-[199]).
It is submitted that it would be “quite wrong to penalise Glencore in costs for having taken steps which have assisted the Claimants in obtaining the disclosure they seek in the proceedings”. However what was conferred was a benefit to the Applicants. They must have been aware that the costs of obtaining that benefit might be an adverse costs order if their Applications failed. The submission also overlooks that the Applicants were already subject to an existing disclosure order which they had pragmatically agreed to at the first CMC. Thereafter it was then the Applicants who sought a departure from the existing order for their own benefit in the context of the Dutch position, with the risks (and potential costs) that their Applications presented. Yet further, far from being penalised, the Applicants have (in the event) obtained a valuable benefit (in reducing yet further, if that were possible, any risk of prosecution).
The Applicants refer to what was stated in the Judgment that counsel for Glencore and Mr Glasenberg had argued their case “forcefully and with care, and [have] taken every possible point” and that this was relevant in relation to both any real risk of prosecution and when conducting the balancing exercise. They also refer to what was stated at [198] of the Judgment. Such sentiments as expressed by the Court, were designed to assist, and no doubt will assist, the Applicants, in the context of the issue of risk of prosecution. However, I do not consider that they assist the Applicants on the incidence of costs. It was ultimately a matter for the Applicants to decide the extent to which particular points were pursued in the knowledge that the opposing party was being put to the cost and expense in rebutting the same, and with the knowledge that the general rule is that costs follow the event.
It is noted that the harder that the disclosing party resists disclosure, the more likely it is that the application will not succeed, as the taking of such steps will reduce the risk of a prosecution (and thus the likelihood of the Applications succeeding), and indeed this is furthered by the contribution made by the Applicants (at the invitation of the Court) to the process of drafting recitals and paragraphs in the draft Order to reduce the risk of prosecution.
However, this is, again, not a reason not to award costs in favour of the successful party (the Claimants). The reality is that it is part and parcel of the collateral benefit that the Applicants have received (in reducing the risk of prosecution). That is not a reason to leave the successful party on the Applications (the Claimants) unreimbursed in the context of their successful opposition of the Applications.
Save in relation to the costs concerning the DPPO/FIOD Correspondence (where any such costs should be costs in the case) I am satisfied that the appropriate order to make on the Applications concerning the alleged Dutch law restrictions is that Glencore and Mr Glasenberg are to pay the Claimants’ costs of the respective Applications, having regard to the matters addressed above, and for the following further reasons:
The Applications in relation to the alleged Dutch law restrictions were separate, discrete applications which were addressed separately, and in their own right as heavy applications that were heard over the course of two and a half Commercial Court days. The solicitors for the Applicants filed a witness statement each, and two expert reports on Dutch law and practice. The two expert reports of Professor Nelemans ran to some 151 pages in aggregate, with the second (reply) report being the lengthier (“Nelemans 1” and “Nelemans 2”). The Claimants were put to significant cost in responding, serving a 97-page report from Professor Brouwer as well as a solicitor’s witness statement. The Court handed down a detailed 352 paragraph judgment exclusively concerned with the Dutch law questions. As such it is appropriate to make discrete costs orders in relation thereto.
The Claimants are undoubtably the successful party on the Applications in relation to the alleged Dutch law restrictions, not simply in terms of the overall outcome, but in terms of every point that was argued, namely existence of offence, risk of prosecution and (if reached and for completeness) the balancing exercise. At each of those stages the Claimants were the successful party, and by some considerable margin in each case. On none of the issues was it a “close run thing” – the Claimants were the successful party on each of the points, and by some considerable margin. In more detail:
In respect of Glencore’s Application:
Stage 1: The Court found that disclosure would not amount to an offence under section 184(1) of the Dutch Criminal Code (“DCC”) (Judgment at [170]).
Stage 2: The Court held that if, contrary to its finding on stage 1, disclosure would (or might) constitute a violation of section 184(1) DCC, “there are a very large number of reasons why there is no real risk of prosecution” (Judgment at [175]), with those reasons being set out in detail (Judgment at [176] to [220]). The Court found there to be no risk of prosecution, “still less a real, or actual, risk” (Judgment at [221]).
Stage 3: While this stage was not reached given the findings made at stages 1 and 2 (see Judgment at [223]), if a balancing exercise had been required, disclosure would still be ordered as the importance of the documents “far outweighs” any risk of prosecution (Judgment at [248]).
In respect of Mr Glasenberg’s Application:
Stage 1: As with Glencore’s application, the Court found that disclosure would not amount to an offence under section 184(1) DCC (Judgment at [266]). The same conclusion was reached in respect of section 272 DCC (Judgment at [305]).
Stage 2: The Court held that if, contrary to its finding on stage 1, disclosure would (or might) constitute a violation of sections 184(1) or 272 DCC, there was still no real risk of prosecution (Judgment at [270] and [322]). Again, the Court found there was no risk of prosecution “still less a real, or actual, risk” (Judgment at [270] and [322]).
Stage 3: while this stage was not reached given the Court’s findings at stages 1 and 2 (Judgment at [271] and [324], if a balancing exercise were required, disclosure would still be ordered as, again, the importance of the documents “far outweighs” any risk of prosecution (Judgment at [351]).
The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party (CPR r.44.2(2)(a)), and having regard to all the circumstances of the case including the conduct of each of the parties and the fact that the Claimants have succeeded on all parts of their case (and the Applicants on no part of their case) (CPR r.44.2.(4)), and having regard to the matters set out above and below, costs should follow the event and Glencore and Mr Glasenberg should pay the Claimants’ costs of the respective applications.
The Applicants must have realised, and in any case should have appreciated, that their Applications were very weak. In this regard:
This is apparent from the findings that the Court made, and the Applicants were challenged on such points during the course of the hearing and in advance of judgment being reserved, The Court found in respect of each of the Applications that there was not “any” risk of prosecution, “still less a real, or actual, risk of prosecution” (see Judgment at [221], [270] and [322], finding that the risk of prosecution to be “infinitesimal” (Judgment at [178]). In respect of Mr Glasenberg’s Application the Court observed, in relation to an additional factor which might reduce the risk of prosecution, that it “further reduces the risk of prosecution under section 272 (if that were possible)” (Judgment at [316]).
The absence of any risk of prosecution under section 184(1) DCC (which was the sole offence relied on by Glencore) was apparent from the correspondence with the DPPO of which Glencore was well aware and which Glencore was able to construe for itself. As the Court pointed out in the Judgment at [143]:
“If the DPPO had believed there was any possible violation of the second limb of section 184(1), it would surely have shared that belief and said so, given that De Brauw are candidly enquiring whether there has been any violation of a criminal provision (section 184(1)).”
The suggestion of Glencore that the DPPO might not have had regard to the second limb of section 184(1) when expressing the view that they “do not share your view that the sharing of the information from the criminal file constitutes a violation within the meaning of Section 184 of the Dutch Criminal Code” was “astonishing” (see Judgment at [146(2)]). Indeed it was, “the DPPO that is shooting down the alleged violations that CC is positing both in relation to section 184(1) and section 142 of the DJOA i.e. it is going out of its way to disabuse Glencore of any suggestion that it is violating such provisions of Dutch law (despite the DPPO clearly expressing that it does not want the material to be disclosed)”.
As I pointed out at paragraph 146(5) of the Judgment, it defies belief that the DPPO would not identify a provision of Dutch criminal law if it considered that the same was violated (which was the position the Applicants were forced to adopt). As also pointed out in the Judgment (at [146(6)] and as would and should have been apparent to Glencore, the fact that the DPPO had expressly told the Applicants that they would have to “weigh the importance of sharing the information with third parties against the importance of confidentiality”, was obviously inconsistent with disclosure constituting a criminal offence under Dutch law (see Judgment at [146(6)]). As I stated at [147] of the Judgment, and having regard to the correspondence with DPPO, I could see, “no prospect whatsoever of prosecution in such circumstances”, and the same would (and should) have been apparent to Glencore and for that matter Mr Glasenberg.
The same is indeed equally true in respect of Mr Glasenberg’s Application and the evidence on risk of prosecution in respect of disclosure of the MLAT Request under section 272 DCC, which was equally very weak. In this regard, and as must have been appreciated, “Professor Nelemans fail[ed] to engage with the fact that the MLAT Request was provided to the Swiss authorities pursuant to section 5.1.2 of the DCCP” (see the Judgment at [300]).
The evidence of Professor Nelemans (upon which the Applicants were heavily dependant) was also open to criticism. In this regard there was a failure to recognise and fairly present the existence of affirmative defences and, as I found, Professor Nelemans “back-tracked on the existence of an affirmative defence” (Judgment at [184]). Equally there was uncertainty as to whether the Dutch court had jurisdiction over Mr Glasenberg in relation to an offence under section 272 DCC (see the Judgment at [316]-[321]). I also noted that there were striking changes in Professor Nelemans’s evidence between Nelemans 1 and Nelemans 2 in relation to the FIOD Documents, without a convincing explanation or justification (see Judgment at [98]-[108]), considering that there was an “unjustified ‘firming up’ on risk of prosecution” and “dilution of the chances of the Defendants being able to advance successful affirmative defences” (Judgment at [104]), which called into question the reliability of his evidence, with the result that the views expressed by Professor Nelemans were to be viewed with circumspection (see Judgment at [108] and [156]). The change of stance also had the hallmarks of having been lawyered (see Judgment at [185]).
The Applicants persisted in asserting the application based on Article 184(1) notwithstanding the DPPO correspondence (and the views expressed by the DPPO therein), and doubled down on their reliance on section 184(1) notwithstanding the shortcomings in their expert evidence and possible affirmative defences (which shortcomings were explored in the course of oral submissions), pursuing all three limbs of Bank Mellat vigorously, and over an extended time period (set against the backdrop of available recitals and proposed paragraphs in any draft order which would have provided protection to the Applicants), and which inevitably put the opposing (and successful) party to substantial additional costs.
The arguments advanced by the Applicants as to why it is said that the general rule should be displaced and a costs in case order should be made have already been addressed above, and none of them bear examination or justify a departure from the general rule. At the heart of those arguments is the submission that it was entirely reasonable and necessary that the application be made in the circumstances in which they found themselves. However, as already noted above, it is neither the law, nor the Court’s practice, that the maker of a reasonable but unsuccessful application will or may, on that basis, escape liability for the costs of the successful party. The general rule is that costs follow the event, and the purpose of the costs shifting regime is not to penalise an unsuccessful party, but to provide (at least partial) reimbursement to the successful party for the costs to which it has been put.
I consider that this is just such a case, fortified by all the additional reasons identified above, in the context of which it was neither necessary nor reasonable for the Applicants to pursue the Applications to the lengths, and in the manner, that they did. In an event even if the Applicants’ arguments had been correct (which they were not for the reasons addressed), they were, I am satisfied that they were insufficient to displace the general rule in what was a paradigm case for a successful party costs order.
It was, as I have already noted, the order that was made in Eurochem and the order that was made in the PIFSS litigation. I do not regard the points made by Mr Lodder as to grounds for distinction between those cases, in particular the PIFSS case, and this case, to be apposite, and nor do I consider that a great deal can be deduced or drawn from the decision in the Standard Chartered case. Quite apart from the application of the general rule, the Eurochem case and the PIFSS case show that disclosure restriction application cases are not in some special category whereby the correct order is costs in the case, as the norm. Those cases well illustrate that the general rule is still applicable.
Nevertheless, as I have done in preceding paragraphs, I have given careful consideration to the particular features that were in play in this case to see whether or not they would justify any departure from the general rule so that costs in the case would be appropriate. For the reasons I have given, I do not consider that they do so, or that costs in the case would be the appropriate order. In particular, there are a number of features of this case which fortify and reinforce it being appropriate for the Claimants to obtain their costs that they have had to incur. I have in mind, in particular, the lengths to which the case was fought, the fact that the Applicants lost every single issue, and the shortcomings in particular in their expert evidence. Those are all reasons militating against the making of a costs in case order and supporting the making of a costs order in favour of the Claimants.
Equally, the suggestion made during the course of oral submissions by Mr Hill KC that an alternative would be to order the Claimants' costs in the case is not, in my view, an appropriate order, nor does it reflect the factors that I have identified. I do not see why whether or not the Claimants should be reimbursed for their costs should depend on whether or not they are the ultimate successful party in what is a long and hard-fought piece of litigation raising many issues. This was a case where there was a discrete issue which gave rise to a very lengthy discrete application and the Court should grapple with the costs of that discrete application, as is the norm. Where discrete applications are launched and fought and lost, the Court should usually make an order in relation to those applications which ensures, having regard to all the circumstances, that the successful party should be reimbursed, at least in part, for the costs that have been incurred in successfully resisting the applications that are made. This is just such a case for the reasons that I have given above.
I am satisfied, therefore, that neither costs in the case, nor Claimants’ costs in the case would reflect the overall circumstances that pertain, which I have identified and addressed in this judgment, and accordingly I make a costs orders against both Glencore and Mr Glasenberg in favour of the Claimants in relation to the Dutch Applications.
C.3 Assessment of Costs
In the context of the length of the discrete hearing, and the amount of costs involved, a summary assessment of costs would not be appropriate, and I consider that the costs should be subject to detailed assessment. This was, in the event, common ground.
The next issue that arises is as to when such detailed assessment should take place. The Claimants refer to what was said in Merck, supra at [6] that :
“… It is in general a salutary principle that those who lose discrete aspects of complex litigation should pay for the discrete applications or hearings which they lose, and should do so when they lose them rather than leaving the costs to be swept up at trial…”.
However, it is clear from a detailed consideration of the Merck case that Nugee J was dealing with the incidence of costs (i.e., who was going to pay them, on what was a preliminary issue) and was not dealing with the timing of assessment. The order in that case was not for detailed assessment at all, but rather being, “The defendants to pay the claimant costs of the preliminary issue, to be assessed on the standard basis if not agreed”. It was not, it appears, being suggested that he should order a detailed assessment to take place at that time. Therefore, I do not consider that what was stated in Merck, other than as a general sentiment (which applies as a reason for summary assessment of costs), takes matters really much further, if any further.
The Claimants also refer to what is noted in the White Book (2025), at paragraph 44.3.6, under the CPR:
“Orders for costs are made (and made payable forthwith), not just at the end of the proceedings, but hearing by hearing throughout, including the pre-trial process and post-trial process.”
(emphasis added)
However, it is important to understand that that comment was made in the context of standard versus indemnity costs and not detailed assessment, or indeed to the timing of detailed assessment at all. It does not follow that the same is true in respect of detailed assessment. I do not consider that that passage in the White Book advances matters to any substantial extent either.
As Mr Onslow KC accepted during the course of his oral submissions, the true starting point is in fact that set out in CPR 47.1, which provides as follows:
“Time when detailed assessment may be carried out
47.1 The general rule is that the costs of any proceedings or any part of the proceedings are not to be assessed by the detailed procedure until the conclusion of the proceedings, but the court may order them to be assessed immediately”.
(emphasis added)
There is an editorial note at paragraph 47.1 of the White Book which comments in relation to that, and I have had regard to the entirety of that commentary.
It will be seen, therefore, that the general rule is that the costs of any proceedings or any part of the proceedings are not to be assessed by the detailed procedure until the conclusion of the proceedings. Accordingly it is for the Claimants to persuade me that this should be a case where the Court should, in the exercise of its discretion, order the costs to be assessed immediately in an immediate detailed assessment.
In that regard, the Claimants say that costs were incurred in the context of a very heavy discrete application separate from the main substantive proceedings, the costs incurred are very substantial and there is no reason why the detailed assessment should be delayed until the end of the proceedings, not least in the context of the fact that the first instance proceedings will not end on judgment being given after Trial 1 (which is listed for October 2026 to deal primarily with “Defendant-side” issues) but will continue for a significant period thereafter.
Against that, Mr Hill KC said that in large scale litigation there will often be a number of discrete applications which are heavy in the context of the proceedings as a whole and it is not the norm that you have detailed assessment forthwith in relation to each of those. That will lead to proliferation, potentially, of detailed assessments of costs during the course of litigation which obviously will impact upon the resources of the Court as well as in terms of the costs incurred.
Mr Hill KC also submits that there is nothing exceptional, or that takes the present hearing out of the norm, in that regard. He identifies, rightly, that there are certain types of applications where it may be appropriate to make an order for detailed assessment forthwith.
The most obvious example, and classically one where such an order may be considered is where there has been a discrete preliminary issue trial. That is the sort of example where a court may, although not necessarily will, consider it appropriate to deal once and for all with costs in relation to the preliminary issue at that time and order a detailed assessment at that time. However I do not consider that we are in such territory. The mere fact that there has been a heavy discrete application, and that costs incurred are very substantial, are not reasons why there should be a detailed assessment forthwith.
The third point about there being no reason why assessment should be delayed until the end of the proceedings in a way starts from the wrong starting point. As Mr Onslow KC realistically accepted in his Reply submissions, the starting point is indeed rule 47.1 and the starting point is that costs of the proceedings, or any part of them, are not to be assessed by the detailed procedure until the conclusion of the proceedings.
I do not consider that the factors that the Claimants prayed in aid, including the large amount of money involved, and the nature of the heavy applications, are reasons that would justify a departure from the normal rule.
An additional point was made that whilst certain of the Claimants have the benefit of litigation funding, one is concerned here with large institutional investors who are, whilst funded not impecunious and are (submits Glencore) highly sophisticated players. Certainly there is no suggestion of impecuniosity, or of prejudice in any sense, if there was not to be detailed assessment forthwith.
Ultimately, I consider that one of the most important points, which should not be lost sight of, is that the norm is that there will be a substantial interim payment on account of costs, and it is common ground that there should be an interim payment on account of costs in the present case.
The very reason why the norm is that there should be a substantial payment on account of costs is so that the successful party does not have to wait for a substantial part of their costs until the eventual outcome of the litigation. Indeed, Mr Onslow KC himself candidly, and rightly, identified that if a very substantial interim payment on account is made, then that, to an extent, reduces the strength of the point as to whether or not there should be a detailed assessment forthwith.
I will be addressing in due course what is an appropriate amount on a detailed assessment, but ultimately what will be arrived at is what I consider to be an appropriate payment on account having regard to the amount likely to be recovered on a detailed assessment. Anything above that will be a matter for detailed assessment in due course, and whilst it is true that there is often a margin between the amount ordered on an interim payment and what may be recovered on the detailed assessment, it is of course perfectly possible that on a detailed assessment a larger, or significantly larger, figure may not be recovered. That is one of the reasons why an interim payment does not necessarily correlate with the amount that will be recovered on a detailed assessment, not least because it generally not considered a desirable scenario for an interim payment to be of such a size that there is a realistic prospect that it will be greater than the sum recovered by way of costs at the end of the day. This is for the obvious reason (talking at a level of generality) that once paid it may not be possible to recover such payment years down the line depending upon the position of the individual litigant(s) concerned.
Mr Hill KC also makes the valid point that there could be difficulties, if there was a detailed assessment at this stage, in terms of knowing precisely what costs relate to that which have been ordered in this judgment and what costs are either in the case, or are subject to discrete costs orders.
A good example, in this regard, is the DPPO/FIOD Documentation which is a discrete area of Dutch law, with discrete costs being incurred. In this regard the notes in the White Book identify the difficulties that can arise in terms of identifying what costs relate to the individual issue concerned which may lead to complexities which would not necessarily need to be determined now and could be dealt with in an overall detailed assessment in due course when the picture would be clearer.
Accordingly, I consider that whilst there should be a payment on account, the detailed assessment should not be ordered to be made forthwith, and that the normal position under section 47.1 should pertain in this case.
C.4 Payment on Account
The next issue is as to what the amount of the payment on account should be in the case of each of Glencore and Mr Glasenberg.
Conceptually, the Glencore application, at least at the hearing, related purely to section 184, whereas in relation to Mr Glasenberg it also dealt with section 272. A complication is that the costs schedule that I have been provided with also includes costs, whatever they may be, in relation to the DPPO undertaking and also the DPPO/FIOD costs.
In the event, neither Defendant suggested that I should make a different interim payment in respect of one Defendant rather than the other, and for his part, Mr Onslow KC on behalf of the Claimants did not suggest that I should make a different interim payment in relation to each Defendant (though the position on the detailed assessment may well differ).
The applicable principles are well established, and the case which is most often cited for the identification of such principles is the “Excalibur” case (Excalibur Ventures v Texas Keystone and others [2016] EWCA Civ 1144) case and see the White Book at 44.2.12. The Court is directed at looking to identify a reasonable sum, as an estimate of the likely level of recovery subject to an appropriate margin to allow for error in the estimation.
The statement of costs that I have before me comes to a total figure of £507,045, and a large part of that is in fact disbursements (the solicitor costs part of it being £177,000). Mr Onslow KC invites me to make an interim payment of about 70% of the total figure.
Mr Hill KC on behalf of Glencore makes a number of points about the detail. Firstly, so far as counsel's fees and disbursements are concerned, he suggests that there should not be very substantial amounts for advice, documents and preparation prior to the hearing, yet very substantial sums have been incurred for that, both in relation to Mr Onslow KC at £68,000, Mr Mott at £40,000 and Mr Roohani of £36,000. He suggests that I should effectively take the figures for the hearing and consequentials work in each case, which would substantially reduce the disbursements for counsel's fees. He submits that that would be an appropriate approach to take given that he is not suggesting that the amounts should be reduced for the hearing and consequentials work.
I have to say that I consider that that would be a rather more substantial reduction than would be appropriate in circumstances where, in a case where there is foreign law expert evidence, there is inevitably likely to be quite a bit of advice involved in relation to that when, central to these applications were the very existence of an offence under section 184 or section 272 and the risk of prosecution in that context which, I would have thought, given the importance of stage 1 and stage 2 in the Bank Mellat stages means that there probably will have been quite a lot of counsel involvement prior to the hearing itself. Nevertheless I bear the point well in mind.
It is also said that the figure in respect of work on documents, £101,000, is very large, and it is also said that the hourly rates are high and above the guideline rates, albeit this is very large Financial List litigation proceeding in the Commercial Court (KBD) part of the Financial List, and Mr Hill KC recognises that fees in excess, if not considerably in excess, of the guideline rates are, in appropriate cases, awarded. Nevertheless I bear this point well in mind too.
A further point that is made by both Mr Hill KC and Mr Lodder is the difficulty that is created by the fact that embedded within these figures are also costs likely to have been incurred in relation to the DPPO undertaking and the DPPO/FIOD matter. In relation to the latter, of course, the costs order is costs in the case. Both the Claimants and the Defendants can only give me limited assistance on this point, and it is difficult to make any real assessment as to the impact of this point, but I bear this point in mind too.
Bringing all their submissions together, this leads Mr Hill KC and Mr Lodder to submit that an interim payment of about £100,000 each is an appropriate figure, which is approximately 40% of the amount claimed. By way of riposte, Mr Onslow KC maintains his 70% figure and says that this is hard-fought commercial litigation involving complex issues which inevitably resulted in substantial solicitor costs and disbursement cost, and he urges me not to be tempted to simply “cut the Gordian knot” by coming up with a figure between the two. That is not the approach I will adopt.
Rather, and having considered all the points which have been made by the Claimants and the Defendants, and adopting a broad brush approach which all parties accept is the appropriate approach, and also having regard to the applicable principles in Excalibur, I consider that a figure in the region of 50% is the appropriate figure and I order that there be a payment on account by each of Glencore and Mr Glasenberg in the figure of £125,000.