SDT: Solicitor was responsible for affidavit
A solicitor found by a High Court judge to have deliberately misled the court has now been struck off by the Solicitors Disciplinary Tribunal (SDT).
The tribunal said it independently came to the same conclusion as Mr Justice Flaux (as he then was) did in 2015 about the conduct of Peter Gray, who at the time was a partner in the Dubai office of leading US firm Gibson Dunn & Crutcher.
Mr Gray was also found to have allowed leading counsel to make misleading submissions to the court and misled solicitors for the other side, Byrne & Partners (now PCB Byrne).
Breaching the “fundamental duty” of a solicitor to conduct litigation fairly and not to mislead was “of the utmost seriousness”, the tribunal said. He had been dishonest and “the only appropriate sanction” was to strike him off.
Mr Gray was called to the Bar in 1999 and requalified as a solicitor in 2002. He was a salaried partner at Gibson Dunn for three years to April 2015, practising mainly from its Dubai office.
He led the team acting for the Republic of Djibouti and two related bodies under its control in litigation against Abdourahman Mohamed Boreh, who had held a senior position at those two bodies and was accused of misappropriating at least $77m.
In 2010, Mr Boreh was convicted in his absence in Djibouti of terrorism and sentenced to 15 years imprisonment on the grounds that he had instigated a grenade attack on a supermarket in 2009.
Two intercepted telephone calls said to have taken place a day later were vital pieces of evidence.
However, in 2013 – as part of work being done to request Mr Boreh’s extradition from the UAE – a Gibson Dunn associate realised that the call transcripts were wrongly dated and logs showed they calls had actually taken place a day earlier, significantly undermining the conviction.
Despite being aware of this and having discussed it in meetings, Mr Gray did not mention the discrepancy in his affidavit for a freezing injunction and an associated propriety injunction against Mr Boreh, which Flaux J granted three weeks later.
The freezing injunction was then relied on as the basis for other actions, including the extradition proceedings and submissions to INTERPOL.
In March 2015, Flaux J found that Mr Gray had dishonestly allowed the court to be misled. He discharged the freezing injunction as a result.
While acknowledging that drafting the affidavit had been a “team effort”, the SDT said this did “not vitiate” the solicitor’s ultimate responsibility for its contents.
Indeed, the affidavit “laboured the severity of the fact that Mr Boreh had been convicted of terrorism offences” and “expressly referred to the evidence upon which Mr Boreh was convicted”.
Mr Gray told the SDT that he did not expect Flaux J to rely on the terrorism conviction in granting the freezing injunction and denied realising during the hearing that Flaux J had been misled.
The SDT was told he had been working long hours and dealing with emails during the hearing, but it rejected the assertion that this would have prevented him from following the oral submissions being made – as the lead partner charging his client $800 an hour, it was his “duty to listen to the submissions being made and correct any inaccuracies that arose”.
The tribunal found he made “a conscious decision” not to correct Khawar Qureshi QC.
Similarly, he misled Byrne about when he had become aware of the discrepancy. “The tribunal found that both questions posed by Byrne were direct, clear and unambiguous. The tribunal found that the firm’s response, which [Mr Gray] was responsible for, was indirect, unclear and ambiguous.”
Finally, the SDT found that another affidavit in November 2014, intended to assist the court in relation to the dating error and Mr Gray’s knowledge of it, was also misleading.
His counsel argued that “emphasising one aspect of an issue rather than another was not misleading, it was part of a lawyer’s stock in trade”.
But the tribunal rejected this too, given that the affidavit was required as a result of Mr Gray’s failure to answer Byrne’s questions.
In 2017, the Bar Standards Board issued an unprecedented public apology to Mr Qureshi for the errors and delays it made in clearing him of misconduct over the case.
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