The Republic of Mozambique v Credit Suisse International & Ors

Permission to appeal requires a proposed ground with a real prospect of success. A trial judge’s evaluative conclusions on disclosure sanctions, causation, limitation, mitigation and quantum will not ordinarily disclose such a prospect where the judge applied a calibrated response and made findings open on the evidence.

Under Article 483(1) of the Mozambique Civil Code, civil liability for active corruption does not depend on the defendant being criminally liable. Liability may arise from the conduct proved, including conduct by a principal through its agent. Loss caused by bribing an official to sign guarantees may be assessed by reference to the financial burden created by the guarantees, rather than awaiting a final determination of their validity. A stay pending a renewed application for permission may be granted conditionally on payment towards costs.

The Republic of Mozambique obtained judgment at trial against the Privinvest Companies, the sixth to tenth defendants, in proceedings concerning guarantees signed by Mozambique’s Minister of Finance and payments made to him. The trial judgment addressed disclosure failures, Mozambican civil and criminal law, causation, limitation and quantum.

After consequential matters were heard on 18 September 2024, the Privinvest Companies applied for permission to appeal on six proposed grounds. They challenged the response to Mozambique’s disclosure failures, the findings on active corruption and repeal under Mozambican law, causation, limitation, the treatment of the EMATUM Exchange and settlements, and the rejection of alleged compensating benefits. They also sought a stay of enforcement pending a renewed application to the Court of Appeal.

1. Permission to appeal refused. None of the six proposed grounds had a real prospect of success.

2. The response to Mozambique’s disclosure failures was a calibrated case-management decision. A fair trial remained possible. The Court was entitled to draw adverse inferences, make allowances in favour of the Privinvest Companies and take account of the possibility of undisclosed documents, without striking out Mozambique’s case.

3. Article 483(1) of the Mozambique Civil Code did not require the conduct relied on to constitute a crime committed by a legal person, or to result in criminal liability. The relevant question was whether the conduct amounted to active corruption. The Privinvest Companies’ liability could also be established under Article 500 for the active corruption of their agent, Mr Safa, although the Court had considered that provision unnecessary to the principal conclusion.

4. The Court was entitled to find that Article 321 of the 1886 Penal Code had not been repealed in 2004, and that the elements of active corruption were satisfied.

5. The findings that the payments were associated with the guarantees, that they caused the signing of guarantees which would otherwise not have been signed, and that Mozambique discovered the corruption only in 2018 were factual evaluations open to the trial judge. The limitation challenge therefore disclosed no arguable error.

6. The treatment of the EMATUM Exchange as a reasonable mitigating step was an evaluation open to the Court. The Court was also entitled to reduce recoverable loss by settlement sums and to reject an alleged obligation to realise value from assets or services which Mozambique had not received under the Supply Contracts. Any indirect benefit through ownership of the SPVs/SOEs was not shown to have increased their share value at the relevant time.

7. Enforcement was stayed pending any renewed application to the Court of Appeal for permission, conditional on payment of £20 million on account of costs. The stay did not prevent Mozambique seeking information about the Privinvest Companies’ financial and business position. There was liberty to apply.

• High Court (Commercial Court): following the trial judgment delivered on 29 July 2024 in the same proceedings, permission to appeal to the Court of Appeal was refused. The Court granted a conditional stay pending any renewed application to the Court of Appeal.