The Republic of Mozambique v Credit Suisse International & Ors

Disclosure duties are governed by reasonableness and proportionality, but those principles do not permit relevant State entities to remain effectively off limits. In complex litigation, a fair trial may require searches of documents held by senior governmental and security bodies. Searches will ordinarily be undertaken by the party’s solicitors, although other arrangements may be permissible where properly justified, supervised and explained. The court must be told in detail about any departure from the ordinary model. The integrity, transparency and reliability of the exercise are central. Continuing non-compliance may justify adverse inferences or, where fairness is threatened, striking out, although the appropriate sanction depends on the facts and may be assessed most precisely at trial.

The Republic of Mozambique was involved in high-value, multi-party Commercial Court proceedings concerning alleged bribery and related matters. The applications concerned the Republic’s compliance with disclosure obligations before a 12-week trial due to begin in October 2023.

The applicants challenged the absence of searches and disclosure from important governmental bodies, including the Office of the President, SISE and the Council of State, together with issues concerning electronic documents, deleted material, the Navy, documents held by PGR and documents referred to in a related criminal trial. The central questions were whether the Republic was complying with its disclosure duties, what further steps were required, and whether sanctions should be imposed.

1. Declaration and further disclosure. The Republic was not complying with its disclosure duties in relation to documents held at the Office of the President, SISE and the Council of State. It was required, through Peters & Peters as its solicitors and officers of the court, to prepare a fresh disclosure plan for those entities. The plan could address confidentiality and possible exemption of documents whose relevance was limited despite high classification.
2. Fair trial and State entities. Searches could not be avoided merely because the entities concerned involved national security or senior governmental functions. The disclosure exercise had to address entities of real relevance across the litigation. The need for a fair trial could require access to a document held in a highly sensitive location, subject to appropriate safeguards.
3. Role of solicitors. Reasonable searches would ordinarily be undertaken by the party’s solicitors. Exceptions were possible, including searches by others combined with effective oversight, supervision, training, checking and challenge. The greater the departure from the ordinary expectation, the more detailed the explanation required. The court was concerned with the integrity and transparency of the exercise, including what had not been missed.
4. Sanctions. Adverse inferences remained possible but could be difficult to apply in multi-party litigation involving allegations and cross-allegations. They might also fail to address the withholding of positive supporting evidence. Strike-out remained a real possible remedy where non-compliance threatened trial fairness, but no strike-out order was made at this stage. The matter remained subject to continuing review.
5. Orders. The Republic was required to undertake supervised review of electronic documents held by PGR, forensic investigation of a deleted institutional email account, liaison concerning documents used in the Mozambican criminal trial, further disclosure from the Navy, and further advice concerning seized devices. All disclosure duties remained continuing duties.