Out-Law News 2 min. read

High Court ruling highlights cross-border disclosure challenges

An English High Court decision that lawyers can be given ‘need-to-know’ access to confidential state documents under Mozambique law demonstrates the wider challenges faced by courts making rulings on disclosure in international litigation, according to one legal expert.

Caroline Hearn of Pinsent Masons said the decision, which comes amid a major commercial dispute between the Republic of Mozambique and Credit Suisse International, was important because it outlined “the difficulties courts face when potentially materially relevant disclosure is subject to the data access laws of a foreign country”.

The judge had been asked to decide if it was lawful under Mozambique law for the Republic of Mozambique’s solicitors to view confidential state documents on the basis of ‘need-to-know’ designation, for the purpose of assisting in the search and collection of documents which may need to be disclosed in the English litigation. The judge was also asked to decide whether there was any risk of the solicitors being prosecuted if they were designated as able to review the documents. The dispute includes allegations of bribery involving a number of senior current and former Mozambique officials, meaning that the republic’s disclosure obligations require a search for relevant documents at a variety of state ministries, councils and offices.

The attorney general of Mozambique had previously taken the view that there was no basis for the Republic of Mozambique’s solicitors to be given ‘need-to-know’ designation in order to be able to view classified documents that would be reviewed as part of the search. But Credit Suisse argued that her decision was wrong, adding that that it would “rob the disclosure exercise of any integrity” if the ministries, councils and offices whose officials were “implicated in wrongdoing” carried out search and review processes without solicitor involvement.

Handing down the court’s judgment, Mr Justice Robin Knowles emphasised the importance of disclosure in English litigation – something which he reflected was not the case in all parts of the world – and the role that parties’ lawyers play in that process. He said: “The court itself is concerned, as a matter of the administration of justice, to ensure that the disclosure procedure has integrity.” He said that expert evidence on the law of Mozambique convinced him that it was lawful to designate individual solicitors as ‘need-to-know’. He added: “I respectfully invite the attorney general of Mozambique, as representing the republic before this court, to study this judgment carefully.”

Hearn said: “While the judge was convinced that it was lawful for the Republic of Mozambique’s solicitors to be designated as ‘need-to-know’, it ultimately remains a matter for the attorney general of Mozambique to decide. All the judge could do was invite the attorney general to reassess her decision based on his judgment and the expert evidence put forward. The question as to risk of prosecution was deferred unless or until the attorney general changed her legal opinion.”

She added: “This case highlights the need for lawyers to consider the risk of stringent data restrictions and possible criminal sanctions relating to access to data in foreign countries at an early stage. Such restrictions need to be carefully considered in the process of advising on cases within the English courts. Inability to access relevant documents or otherwise to carry out the disclosure exercise in a way the English courts will regard as compliant poses a real risk to the success of a claim, so it is important for a foreign party to work closely with its English law firm, and local advisers, to assess these issues at the earliest opportunity.”

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