White & Case: Told court it did not have the archive
A High Court judge has said claimants seeking delivery up of documents from the London arm of US firm White & Case were “wrong” to challenge its conduct in the matter.
Mr Justice Robin Knowles said he “greatly” regretted the failure to show the firm and its lawyers the respect they deserved.
The claimants have the benefit of $50bn arbitration awards made against the Russian Federation (RF) following their claim that the RF expropriated and failed to protect their investments in oil giant Yukos, causing them huge losses.
There are ongoing proceedings about the awards being set aside or enforced. The seat of the arbitrations is The Netherlands, while there are enforcement proceedings in England & Wales and the USA.
White & Case has acted for the RF in the enforcement proceedings and the case in the High Court was a claim against White & Case’s English LLP, along with partner David Goldberg, and a Dutch lawyer (not from White & Case), Albert Jan Van Den Berg, who previously acted for the RF in the Dutch proceedings.
In Hulley Enterprises Ltd & Ors v White & Case LLP & Ors – initially handed down in private last June but published this week – the claimants were seeking the delivery up of an electronic archive which the RF said was handed over to it by an unidentified English journalist in 2018, documents from which have been used in the arbitrations.
They suspect the archive derives, somehow, from a now-defunct English law firm, Curtis & Co, which acted for one of the claimants until it closed in 2004.
Robin Knowles J said it was made clear to him at the first hearing in August 2022, which was without notice to the defendants, that the claimants did not challenge the lawyers’ honesty or integrity – rather, they had become “mixed up in activity that was wrongful, not on their part but on the part of others”.
“Yet at points the claimants have seemed, in the course of their claim for documents and information, to attempt to challenge the defendants’ conduct.
“I wish to be clear that in the circumstances of the case it is not open to them to do so and it is wrong of them to attempt to do so.”
Robin Knowles J rejected the applications for delivery up and Norwich Pharmacal orders. He said White & Case had told the court that it did not have the archive.
“I accept that position. It is provided by officers of this court well aware of their professional responsibilities to this court and I have no good reason to doubt their appreciation of the importance of truth and accuracy in reporting the position to the court,” he said.
He accepted too that Mr Van Den Berg did not have the archive. Though not an officer of the court of England and Wales, “I have every confidence that he holds himself to standards that are just as high, and I have from him a cogent account by a distinguished and responsible professional with expertise in the field”.
The judge concluded by acknowledging the “very high” stakes in the wide dispute. “That is a situation that puts everyone under pressure. But it is exactly the situation in which it is more important than ever that there is clearheaded respect between the legal professionals involved.
“I wish to be quite clear that there is no basis whatsoever for any challenge to or adverse criticism of the integrity, honesty or professionalism of any of the defendants in these proceedings.
“All the defendants (and the partner who has given evidence for [White & Case] and has conduct for [White & Case and Mr Goldberg) are distinguished leaders, of international standing in their professions, and they are entitled to be treated as such.
“It is so important to keep this in plain sight because it is one of the things that underpins professional aspiration and standards, on which all parties and the courts depend.
“It also helps underline how serious a matter is, and how ready a court will be to act and act rigorously, when (in complete contrast to the present case) there is truly a ground for challenge or criticism. I greatly regret that at least at times the claimants have lost sight of this.”
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