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

A non-party cannot circumvent statutory restrictions on appeals by challenging adverse findings that form an integral part of the decision under appeal. Under section 68(4) of the Arbitration Act 1996, leave is required for such an appeal, even where the proposed appellant gave evidence and conducted the arbitration for a party. Article 6 is not engaged merely because findings may damage professional reputation; the proceedings must be directly decisive of the relevant civil right. Article 8 requires a fair process, including notice and an opportunity to respond, but does not guarantee a particular factual conclusion or an appeal on the merits. A lawyer who knowingly or suspecting illicit receipt of the opposing party’s privileged documents cannot simply retain or use them. The Court of Appeal also emphasised finality and the need to discourage satellite litigation by non-party witnesses.

The Federal Republic of Nigeria challenged arbitral awards obtained by Process and Industrial Developments Ltd under section 68 of the Arbitration Act 1996. The Commercial Court set aside the awards in a judgment reported at [2023] EWHC 2638 (Comm), including findings concerning Mr Seamus Andrew’s receipt, retention and use of Nigeria’s privileged internal legal documents.

Mr Andrew, who had acted for P&ID in the arbitration and later became its director, sought permission to appeal against those findings. He alleged procedural unfairness and breaches of Articles 6 and 8 of the ECHR. The issues included delay, the requirement for leave under section 68(4), the scope of the procedural protections owed to a non-party witness, and whether the findings were adequately reasoned.

1. Time limit. The judgment was handed down on 23 October 2023, so the 21-day period under CPR 52.12 ran from that date, not from the later consequentials hearing. Mr Andrew’s mistaken assumption was insufficient. His notice was 38 days late, the breach was serious and disruptive, and relief from sanctions under CPR 3.9 was refused.
2. Jurisdiction. Section 68(4) of the Arbitration Act 1996 requires the lower court’s leave for any appeal from a decision under section 68. The proposed appeal challenged findings which were an integral part of the decision setting aside the awards. They were part of the process of reaching that decision and within the compass of section 68. The fact that Mr Andrew was a non-party did not alter the position. The Court therefore had no jurisdiction.
3. Convention rights. Article 6 was not engaged because the judgment did not determine Mr Andrew’s right to practise as a solicitor; that issue would be determined independently by the disciplinary tribunal. Reputational consequences were properly considered under Article 8. The case was unlike In re W, reported at [2016] EWCA Civ 1140, because the allegations were pleaded, addressed in evidence, put in cross-examination and central to Nigeria’s case. There was no requirement for a further warning or independent representation.
4. Reasons and merits. The judge’s reasons were sufficient to show that the essential issues had been addressed. The reference to corruption in the endnote did not introduce a finding that Mr Andrew had participated in bribery. If it included him, it referred to dishonest conduct involving the privileged documents. A solicitor who knows or suspects that the opposing party’s privileged documents were illicitly obtained cannot retain or use them; the documents must be returned or the solicitor must cease acting if the client refuses. The findings that Mr Andrew’s conduct was indefensible, financially motivated and supported by untruthful evidence were adequately open to the judge.
5. Disposition. Permission to appeal was refused. Even if permission had been granted, all grounds were unarguable and the appeal would have been dismissed. The proposed satellite litigation was also inappropriate given the completed proceedings, the parties’ lack of interest in the appeal, the need for finality and the availability of disciplinary proceedings.

1. Court of Appeal (Civil Division): Permission to appeal refused. The Court held that it lacked jurisdiction without leave under section 68(4) of the Arbitration Act 1996 and, alternatively, that the proposed grounds were unarguable.
2. High Court of Justice, Commercial Court: The awards were set aside following the section 68 challenge, with judgment reported at [2023] EWHC 2638 (Comm). Permission to appeal was refused.