Macfarlanes secures important disclosure judgment in major conspiracy case
On 30 July 2021, the Commercial Court (Mr David Edwards QC) handed down judgment on a wide-ranging disclosure application by the State of Qatar in its dispute with Luxembourg bank, Banque Havilland, and one of its former employees.
Qatar alleges a conspiracy between the Defendants and several other banks based in the Gulf to manipulate markets – in the Qatari Riyal and USD Qatari bonds – in 2017, following the imposition of a blockade on Qatar by Saudi Arabia, the UAE, Bahrain, and other States. Qatar alleges that the acts of market manipulation caused it very substantial loss.
Qatar relies on, among other things, a presentation prepared within Banque Havilland which refers to ‘crossing transactions’ in bonds between affiliated parties, and proposals to place ‘pressure’ on the USD/QAR currency peg.
Following the publication of the presentation in November 2017 by the news website The Intercept, Banque Havilland commissioned an investigation to be conducted by external advisers at PwC. The Defendants resisted providing disclosure of the investigation report and related documents, on the basis that they were subject to litigation privilege.
The Court upheld Qatar’s challenge to that privilege claim. On analysis, the Defendants had not shown that the sole or dominant purpose for the commissioning of the investigation was litigation in reasonable contemplation. Moreover, the bank was motivated by other purposes: to ascertain how a copy of the presentation had been obtained by The Intercept, and to put the bank in a position to answer its regulator’s questions. The investigation report was therefore not privileged.
As well as ordering the Defendants to pay Qatar’s costs of the application, the Court also ordered a range of further disclosure to be undertaken, beyond the Extended Disclosure already given by the Defendants.
The judgment is available here.
The Macfarlanes team acting for Qatar on the application included partners Matt McCahearty and Dan Lavender, senior solicitor Fred Snowball and solicitors Mark Edwardes Jones, Steven Young and Malte Ernsting, with support from other members of the litigation team. Counsel for Qatar were David Mumford QC and Thomas Munby from Maitland Chambers and Hugo Leith from Brick Court Chambers.