The Federal Republic of Nigeria v Process and Industrial Developments Ltd & Anor

The Court of Appeal refused permission to appeal and dismissed the appellant's application. The appeal challenged findings by Knowles J made when setting aside arbitral awards under section 68(2)(g) of the Arbitration Act 1996 on grounds that the awards had been procured by fraud. The judge identified three irregularities under section 68(2)(g): (i) knowingly false evidence given to the tribunal, (ii) continued corrupt payments to suppress disclosure, and (iii) the improper receipt, retention and use by P&ID of the respondent's internal legal documents, including privileged material. The court held that the adverse findings against Mr Seamus Andrew in relation to privileged documents were within the four corners of the pleaded case, were fairly put to him in evidence and in closing submissions, and were supported by sufficient reasoning. The Court of Appeal also held that the appellant’s notice was out of time and that, in any event, section 68(4) required leave of the lower court before appealing the judge’s decision; no permission had been obtained.

Background and procedural posture.

The Federal Republic of Nigeria challenged arbitration awards made in favour of Process & Industrial Developments Ltd under section 68 of the Arbitration Act 1996, alleging the awards were procured by fraud, bribery and concealment. Following an eight week trial, Robin Knowles J set aside the awards by judgment of 23 October 2023 ([2023] EWHC 2638 (Comm)), identifying three irregularities which brought the case within section 68(2)(g). The present judgment concerns an application by Mr Seamus Andrew (a non-party at the section 68 hearing, former counsel in the arbitration and later a director of P&ID) for permission to appeal adverse findings made about his conduct in relation to the receipt, retention and use of Nigeria’s internal legal documents and related findings about motive and truthfulness.

Nature of the application and issues before the Court of Appeal.

• (i) Permission to appeal and an extension of time for filing the appellant’s notice.
• (ii) Whether this Court has jurisdiction to entertain an appeal by a non-party where the lower court's decision was given under section 68 of the Arbitration Act 1996 and the lower court had not granted permission under section 68(4).
• (iii) Whether the adverse findings against Mr Andrew breached his procedural human rights under Articles 6 and/or 8 ECHR, in particular by reason of lack of notice, lack of adequate reasons, or failure to afford an opportunity to seek independent legal representation.

Key facts and evidence.

Nigeria’s pleaded case alleged that P&ID had been provided with numerous internal legal documents of Nigeria, many plainly privileged, and that some individuals in Nigeria deliberately transmitted those documents to P&ID. The judge found that Mr Andrew and others had received and read privileged documents, appreciated their privileged status, and failed to take steps to return them or notify Nigeria. The judge disbelieved Mr Andrew’s account that the documents had been shared for settlement purposes, found aspects of his oral evidence untruthful, and concluded that the retention and use of the documents enabled P&ID to track Nigeria’s position in the arbitration. The judge also referred the matter to professional regulators.

Court of Appeal reasoning and disposition.

• The Court held the appellant’s notice was filed out of time (38 days late) and that no adequate explanation was given; relief from sanctions under CPR 3.9 was refused.
• The Court held that the findings complained of formed part of the decision to set aside the awards under section 68 and were therefore "within the compass" of a decision under section 68; section 68(4) required leave of the trial judge before an appeal could be brought. No such leave was obtained, so this Court had no jurisdiction to entertain the appeal.
• On the merits, the Court found that Articles 6 and 8 were not breached. The allegations against Mr Andrew had been fully pleaded, he had given extensive witness evidence and had been cross-examined at length, he had access to counsel and to the draft judgment before hand-down, and the judge’s reasons were sufficient to show the essential issues were addressed. The judge’s findings that Mr Andrew had knowingly retained privileged documents, that his settlement explanation was untrue, and that his conduct was motivated by financial interest were adequately supported by the trial material and did not require further procedural protections.
• As a discretionary matter the Court would have refused permission even had jurisdiction existed, noting finality in arbitration, the absence of any party interest in this collateral appeal by a non-party, the availability of disciplinary and regulatory remedies (Solicitors Regulation Authority/Bar Standards Board or Solicitors Disciplinary Tribunal) and the need to discourage satellite appeals.

The application for permission to appeal is refused and the appeal is dismissed. The Court held the appellant’s notice was out of time and relief from sanctions was refused; section 68(4) of the Arbitration Act requires leave of the trial court for appeals from decisions under section 68 and no such leave had been granted so this Court lacked jurisdiction. On the merits, the Court concluded the judge’s findings against the appellant were within the pleaded case, fairly put and sufficiently reasoned; Articles 6 and 8 ECHR were not breached. As a discretionary matter, the Court would also have refused permission given finality concerns and alternative regulatory remedies.

The judgment under appeal was given by Robin Knowles J in the Commercial Court ([2023] EWHC 2638 (Comm)). The appellant applied for permission to appeal to the Court of Appeal outside the 21-day time limit. Permission and extension were initially refused by Males LJ on 19 March 2024; an application to re-open permission was later granted and the matter was listed for oral hearing (order of 25 November 2024). This judgment records the Court of Appeal's hearing on 1–2 May 2025 and its decision on 10 June 2025 ([2025] EWCA Civ 715).