In a judgment given ex tempore at a substantive case management conference on 23-24 November 2022, since posted on caselaw databases, Mrs Justice Cockerill DBE dismissed an application by the primary defendants to transfer this further action out of the Commercial Court: see Eurasian Natural Resources Corporation v. Director of the Serious Fraud Office & others  EWHC 3190 (Comm).
The further action was commenced by the claimant (ENRC) in January 2021 against two defendants, The Director of the SFO and a former SFO Officer, John Gibson. A suspended/reinstated SFO Officer, Anthony Puddick, was added as third defendant by amendment following partial initial disclosure. The claim concerns alleged unauthorised, unlawful and unconstitutional disclosures of confidential information by or through SFO Officers (i.e. covert briefing of media or intermediaries) over a period of years during the currency of an ongoing criminal investigation into ENRC. The claim seeks compensatory and exemplary damages for tortious or equitable wrongdoing, namely: breach of confidence, misfeasance in public office and unlawful means conspiracy.
Two prior actions, one commenced in 2017 against the SFO and another commenced in 2019 against Dechert LLP and Neil Gerrard, were tried together during 2021 leading to a substantial judgment of Mr Justice Waksman handed down on 16 May 2022. That judgment contained serious findings against a former director/officers of the SFO, including motivation by “bad faith opportunism” in their treatment of ENRC in the context of the criminal investigation: see  EWHC 1138 (Comm) and news item summary here. Further phases of that pre-existing litigation remain pending in the Commercial Court.
The SFO applied shortly before the original listing of the case management conference in July 2022 to transfer the present action out of the Commercial Court. Cockerill J refused the application in a judgment which was avowedly contextual and pragmatic. In summary:
- Although the claim is not a paradigm “commercial claim” within the meaning of CPR 58, the categories of such claims are only indicative. This new action arose out of proposed amendments to introduce distinct allegations (about leaking of information) into the pre-existing litigation, which is itself pending in the Commercial Court.
- There is sufficient nexus between the issues raised in this action and the matters listed in CPR 58.1. The case has been treated and managed as a commercial claim in terms of its overall shape and substance. It involves complex issues and concerns activities in the financial markets.
- Claims concerning conspiracy or misuse of confidential information are now the “bread and butter” of the “modern commercial” business of the Commercial Court. If anything, such transfer would make case management more complex and less efficient.
- No good reason based on efficient case management or trial listing was identified to justify transfer into the general list of the King’s Bench Division.
In further judgments made during the same hearing and since posted in approved form: (a) Cockerill J granted in material part ENRC’s application for initial disclosure of an internal report pleaded by way of defence notwithstanding the SFO’s objections based upon potential objections on public interest immunity grounds (as yet to be raised or, if raised, determined): see  EWHC 3191 (Comm); and (b) Cockerill J refused an application by Mr Puddick seeking security for his costs in a form other than the parent guarantee proffered by ENRC and accepted by all other defendants in both this action and the other actions as adequate security – concluding that the parent guarantee was “functionally equivalent to” a bank guarantee or payment into Court Funds: see  EWHC 3189 (Comm).
The oral advocacy was shared between all three counsel for ENRC at the hearing in November 2022. A seven week trial has since been listed in the Commercial Court during Michaelmas Term 2024, with provision for further disclosure-related hearings, if needed, in the meantime.
Stephen Houseman KC (now also leading Anna Boase KC (2019 Silk) at One Essex Court) together with David Glen (2002 Call) of 11KBW and Helen Morton (2012 Call) of Essex Court Chambers, act on behalf of ENRC, instructed by Michael Roberts at Hogan Lovells International LLP.