The High Court has today declined to grant the key demands sought by Eurasian Natural Resources Corporation Limited (ENRC) against the Serious Fraud Office (SFO) relating to the conduct of its corruption investigation into the Kazakh mining giant.
Today’s judgment isn’t a clean win for the SFO, however, as it finds senior individuals in the agency (under previous leadership) may have engaged in ‘bad faith opportunism’ in accepting certain information, and may therefore have ‘induced’ unauthorised disclosures from the company’s former legal representatives at Dechert. A further hearing will examine these claims more closely. The judgment is however devastating in its critiques of those Dechert representatives.
Overall, the judgment is a highly welcome development for the SFO because it has not fundamentally undermined the agency’s investigation into ENRC. It also dismissed claims that the SFO committed “misfeasance in public office”.
The investigation into ENRC, announced by the SFO in 2013, relates to allegations of fraud, bribery and corruption in deals by the mining company owned by three Kazakh oligarchs. ENRC has contested the allegations, using the courts in a way that some have described as “legal warfare” or lawfare against the SFO, journalists, former SFO employees and others.*
In a three-month trial last year, ENRC argued that the SFO mishandled its corruption investigation, induced Dechert lawyers to breach duties owed to ENRC, and leaked information to the media. ENRC was seeking £70 million in damages from the SFO.
Court judgment: https://www.judiciary.uk/judgments/eurasian-natural-resources-v-dechert-llp/
George Havenhand, Senior Legal Researcher at Spotlight on Corruption, said:
This partial victory will be a welcome relief to the SFO, coming at a critical time when the agency faces significant criticism for its handling of other high-profile cases. Most importantly, it has not fundamentally undermined the SFO’s investigation into ENRC. For too long, scarce public resources have had to be expended by the agency on defending itself against the legal challenges brought by ENRC. It is now vital that the SFO moves swiftly to bring its investigation, announced ten years ago, to its conclusion.
*Spotlight on Corruption and other civil society organisations have raised concerns that ENRC’s legal tactics against journalists, lawyers, investigators, contractors, a former SFO official and the SFO itself appear to have been aimed at discouraging scrutiny of ENRC’s conduct.