THE REPUBLIC OF MOZAMBIQUE v CREDIT SUISSE INTERNATIONAL AND OTHERS

A party may plead a non-admission only where it cannot properly admit or deny the allegation after making reasonable enquiries and considering the information and documents available to it. A non-admission must be explained fully and transparently. A party cannot rely on a reserved attribution argument to avoid finding out relevant facts or pleading its factual position. In complex litigation, the court may require verified confirmations about enquiries made, responses received and the use made of that information. Issues concerning document control, privilege, criminal files and state secrecy may receive separate case-management treatment.

The Republic of Mozambique was required by an order dated 23 November 2021 to provide further information concerning allegations of bribery, corruption and President Nyusi’s knowledge. The order required denials to state their reasons and any positive case under CPR 16.5(2), and required any non-admission under CPR 16.5(1)(b) to be supported by a full and proper explanation.

The Republic supplied further responses but did not state whether it had received substantive replies from President Nyusi or whether those replies had been taken into account. The central issue was whether the Republic had complied with the earlier order and whether further clarification should be required before trial.

Application of the earlier order. The Republic had not complied with the order of 23 November 2021. In serious and complex litigation, clarity and transparency of each party’s case are essential to fair case management and a fair trial.

1. A non-admission is available only to the extent that the pleading party is unable to admit or deny the allegation. The party must first consider its own knowledge and make appropriate enquiries, including enquiries needed to establish its factual position.
2. The Republic’s attribution case remained fully reserved. That reservation did not prevent it from seeking information from President Nyusi or pleading the factual position revealed by its enquiries. The Republic’s stated basis for non-admission was therefore properly understood as lack of present knowledge after enquiries, rather than reliance on attribution.
3. The court did not at this stage determine control of Sunflower’s documents, the effect of documents in criminal files, privilege, or the state-secrecy issue. Those matters were suitable for disclosure or separate case-management consideration.
4. The Republic was required to state whether it had received substantive replies from President Nyusi and whether its responses took account of them. If substantive replies had been received, it had to confirm that attribution was not used to exclude them. If no substantive replies had been received, it had to state what it intended to do to obtain them. Those statements were to be verified by a statement of truth.
5. The court declined, at that stage, to impose the same specific procedure in relation to three other individuals. The opportunity already available to the Republic to consider their evidence could affect any later application to amend its case. All parties had liberty to apply.

First-instance case-management decision. The judgment records an earlier ex tempore judgment and order dated 23 November 2021 in the same proceedings, requiring further information under CPR Part 18 and pleading responses under CPR 16.5(1)(b) and CPR 16.5(2). The present court found the order not complied with and imposed further clarification requirements.