The Republic of Mozambique v Credit Suisse International & Ors.

Under Mozambican law, the authority competent to manage or classify protected information has a discretion to designate particular individuals as having a need to know classified information. The law does not confine that designation to civil servants, Mozambican nationals or public servants.

The discretion must be exercised for a particular person, purpose and circumstance. It requires consideration of the classification and nature of the information, the need for access, the protected public interests, and available safeguards. Foreign legal representatives may therefore lawfully be designated where their work serves a public interest and access is necessary, subject to appropriate protections.

The Republic of Mozambique was subject to disclosure duties in English commercial proceedings concerning allegations arising from major transactions. It argued that Mozambican law prevented its English solicitors, Peters & Peters, from being designated as having a need to know classified documents held by Mozambican state entities.

The court determined two questions: whether such designation would be unlawful under Mozambican law, and whether the solicitors would face a real risk of prosecution in Mozambique if designated. The court considered the Mozambican Constitution, legislation, regulations, administrative guidance and expert evidence.

1. Designation was lawful. It was lawful under Mozambican law to designate individual solicitors at Peters & Peters as having a need to know classified documents. The relevant regime did not impose an absolute restriction to civil servants, public servants, Mozambican citizens or persons within the state apparatus.
2. The expression need to know required a specific decision concerning a particular person, information and purpose. The decision-maker had to exercise discretion having regard to the nature of the documents and information, the need for access, the public interests protected by state secrecy, and the safeguards available for preserving confidentiality and preventing unauthorised access.
3. The fact that the solicitors were foreign lawyers established abroad, and might not be fully subject to Mozambican jurisdiction, was relevant to the exercise of discretion but did not make designation unlawful. Nor did the possibility that the information concerned SISE or other highly sensitive state material produce that result. Those matters required a stricter and more careful assessment.
4. The 2009 Procedures Manual was directed principally to internal access by civil servants. It did not establish a closed statutory category excluding private persons. The CPISE leaflet expressly contemplated that private entities could be included within the need-to-know regime, and the work of legal representatives conducting disclosure in proceedings involving the Republic could constitute activity in the public interest.
5. The court would not at that stage declare whether designation would create a real risk of prosecution in Mozambique. That question depended on whether designation occurred and, if so, on the terms and safeguards of the particular designation. It was adjourned.

A declaration was made that designation of individual Peters & Peters solicitors as need to know was lawful under Mozambican law.

First instance decision. No appellate history was stated in the judgment.