Knowles: Nigeria was deprived of privilege
A High Court judge has referred a solicitor and a barrister to their regulators for “indefensible” conduct, motivated by money, that contributed to his decision to overturn an $11bn arbitration award.
Both Seamus Andrew, managing partner of London firm Veltior, and Trevor Burke KC of Three Raymond Buildings were said to be in line for huge financial rewards in the event of the case being successful.
They have rejected Mr Justice Robin Knowles’s findings against them.
Yesterday’s 160-page ruling concerned an arbitral award made against the Nigerian government for repudiatory breach of a gas supply and processing agreement with a British Virgin Islands company called Process & Industrial Developments Ltd (P&ID).
In 2017, an arbitration tribunal ruled that Nigeria owed P&ID – co-founded by Irish businessmen Michael Quinn and Brendan Cahill – $6.6bn, a figure now exceeding $11bn due to interest.
In the High Court, Nigeria challenged the decision on multiple grounds, including that it was obtained by fraud.
Mr Andrew was P&ID’s solicitor for the arbitration, while in 2012 Mr Burke was sent a file of documents to read into P&ID’s claim. Mr Burke was a nephew of Mr Quinn, who died in 2015.
The judge said: “Mr Andrew and Mr Burke KC, among others, have very significant personal interests in this matter. They may have a claim to what were described by [Nigeria’s counsel] as ‘life-changing sums of money’, contingent upon success for P&ID in this matter.
“The figures are up to £850m in the case of Mr Burke KC and up to £3bn in the case of Mr Andrew.”
Nigeria argued that the internal legal documents P&ID was provided with in the course of the arbitration were subject to legal professional privilege.
At least some “plainly” were, the judge agreed, adding it was clear they were deliberately leaked.
Improperly retaining these documents, he said, enabled P&ID to track Nigeria’s internal consideration of merits, strategy and settlement during the arbitration, and allowed it to monitor whether Nigeria had become aware of the fact that Nigeria and the tribunal were being deceived.
“Mr Andrew, Mr Burke KC and Mr Cahill were among those who received [the documents]. As legal professionals Mr Andrew and Mr Burke KC appreciated that these at least included documents that were privileged. They did not know how the documents had come into P&ID’s hands.
“Mr Burke KC gave oral evidence from the witness box that he had conducted an enquiry into where and how; this evidence did not appear in his written evidence and was false. I reject as untrue Mr Andrew’s oral evidence that the documents were shared as part of settlement discussions.”
The judge continued that the lawyers’ decision “not to put a stop to it, at least by informing Nigeria or immediately returning the documents they knew were received, was indefensible”.
The reason they behaved in this way was “because of the money they hoped to make”.
Robin Knowles J said: “Mr Burke KC told me in his evidence that ‘[t]he money is a complete irrelevance here… [r]eputation and career are far more important to me than this notional money’. But that is now, and was not then.”
The judge also found Mr Andrew’s evidence that he did not pay “particular attention” to the documents was “not truthful”; nor was Mr Burke’s suggestion that he did not give much importance to them.
He held that retaining the documents was one of the things that amounted to fraud, the others being P&ID providing the tribunal with evidence it knew to be false, and paying bribes to the legal director of Nigeria’s Ministry of Petroleum Resources “in order to suppress from the tribunal and Nigeria the fact that she had been bribed when the [gas agreement] came about”.
Section 68 of the Arbitration Act asks not only whether the award was obtained by fraud but whether the way in which the award was procured was contrary to public policy – that Nigeria was “comprehensively deprived of its right to legal professional privilege throughout the process” met the latter limb of the test.
Robin Knowles J said: “This case has also, sadly, brought together a combination of examples of what some individuals will do for money. Driven by greed and prepared to use corruption; giving no thought to what their enrichment would mean in terms of harm for others.
“Others that in the present case include the people of Nigeria, already let down in so many ways over the history of this matter by a number of individuals in politics and administration whose duty it was to serve them and protect them.
“I will be referring a copy of this judgment to the Bar Standards Board in the case of Mr Trevor Burke KC and to both the Solicitors Regulation Authority and the Bar Standards Board in the case of Mr Seamus Andrew.
“I trust that these two regulators of the legal profession in England & Wales will consider the professional consequences of the conduct of Mr Burke KC and Mr Andrew in relation to Nigeria’s [documents].
“As a separate matter, although there was argument before me about the acceptability of the remuneration arrangements for Mr Burke KC, that would be a satellite point for the issues I have the responsibility to decide and is best left for the regulator for whom it will be a central point.”
In a statement, Mr Andrew, who first qualified and practised as a barrister before becoming a solicitor, said: “I do not accept the criticism in the judgment concerning Nigeria’s internal legal documents. I believe I acted in accordance with my professional duties, and I am confident that my conduct will in due course be vindicated by my regulator.
“I appeared voluntarily before the High Court as a witness and did my best to answer the questions asked of me carefully and accurately, as the judge observed. I shall not be making any further comment at this time in relation to today’s judgment.”
Mr Burke said: “I do not accept the criticism that have been made of me in relation to Nigeria’s internal legal documents. I gave my evidence in the English proceedings in good faith and to the best of my ability.
“I am confident that my conduct will be exonerated by my professional body, with whom I shall cooperate fully.”
Could it be argued that privilege should not trump the need for the arbitrators to see any material required to reach a fair resolution of the matters in issue?
Was that a consideration in the instant case?