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Nigeria v P&ID: $9bn award set aside, English lawyers referred to regulators

Robin Knowles J has set aside $11bn award against Nigeria on the grounds of bribery and fraud. He has referred a copy of his judgment to the Bar Standards Board in relation to Trevor Burke KC and to both the Solicitors Regulation Authority and the Bar Standards Board in the case of Seamus Andrew. Whilst findings in relation to the leak of privileged documents to P&ID appear throughout the judgment, the key findings in relation to Messrs Andrew and Burke appear to be the following. 

 

207.  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 Mr Howard KC as “life-changing sums of 
money”, contingent upon success for P&ID in this matter. The figures are up to £850 million in the 
case of Mr Burke KC and up to £3 billion in the case of Mr Andrew. Each gave written and oral 
evidence at the trial. Mr Andrew tried his best to answer questions carefully and accurately. Mr 
Burke KC gave answers in a way that appeared business-like and direct at first, but became 
increasingly exercised as he was taken through more documents.

...

209.  Nigeria says the internal legal documents with which P&ID was provided in the course of the 
arbitration were subject to the confidentiality between lawyer and client known as legal 
professional privilege. ...

210.  I have reviewed these internal documents and at least some were plainly subject to legal 
professional privilege: they were confidential to Nigeria and P&ID was not entitled to see them. 
The more relevant are identified in the course of this judgment. Another was the subject of a 
separate application in the course of the hearing before me, and privilege in it was not waived by 
Nigeria. That particular document is not ultimately material to the determination of any of the 
issues in the case and I do not refer to it further in this judgment.

211.  I shall refer to these internal legal documents in the balance of this judgment as Nigeria’s 
Internal Legal Documents. Some of them are said to have been forwarded by individuals named Mr 
Saheed Akanji, Mr Tokunbo James and Mr Mulero Racheal. Both Nigeria and P&ID say that individuals 
with these names or aliases are unknown to them. But the transmission of Nigeria’s Internal Legal 
Documents to P&ID was plainly not the result of incompetence. The scale, nature, continuity and 
destination does not allow that conclusion on any balance of probabilities, even allowing for the 
seriousness of the conclusion that the transmission was deliberate.

...

214.  Mr Andrew, Mr Burke KC and Mr Cahill were among those who received Nigeria’s Internal Legal 
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.

215.  Mr Andrew and Mr Burke KC knew that P&ID and they were not entitled to see these documents. 
Their 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 Mr Andrew and Mr Burke KC behaved 
in this way was because of the money they hoped to make. 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. Even Mr Cahill and Mr Murray appreciated that P&ID should not 
have the documents. But their attitude was that this was the sort of thing you took advantage of if 
it happened. Mr Murray accepted that the receipt and use of Nigeria’s Internal Legal Documents was 
“less than honest”.

216.  Mr Andrew suggested in his evidence that he did not pay particular attention to Nigeria’s 
Internal Legal Documents and did not read them all, or some of those he received, completely. That, 
I find, was not truthful evidence. Mr Burke KC suggested that he did not give much importance to 
Nigeria’s Internal Legal Documents. That too, I find was not truthful evidence.
 

https://www.judiciary.uk/judgments/the-federal-republic-of-nigeria-v-process-industrial-developments-limited/ 

Yeah odd one this I can’t help but be very sympathetic to anyone facing an “everyone is corrupt “ claim from the Nigerian state FFS, mote in your eye much m8?

Just how hard would it be for them to follow the same strategy against ANYONE that has ever done work with errrr the State of Nigeria?

They accused literally everyone involved in, not just that deal but seemingly every other deal the other party had been involved in (even -unsuccessfully their own lawyer) . Non shocker then that there was mud aplenty . 

Not my area but always  thought that you had to come not only with clean hands but also that there were some issues with benefiting from an underlying dodge deal

 

 

 

 

 

Knowles so to be viewed with caution, but his reasoning appears sound.  In circs where the underlying contract was procured by bribery, which continued throughout the arbitration, and where Nigeria’s privileged documents were being leaked to the other side (again, likely through bribery), and the lawyers had probably been suborned, seems firmly within s.68 territory. 

Lolz if this gets reversed at CoA

TBH I d be kinda be nervous if I were the Nigerians current team based on the “if it fails go after your own team for corruption” strategy . Based on the reasoning deployed at trial (and mostly substantiated by Court) anything big ticket in that jurisdiction is vulnerable.

Long spoons n all that  

Can someone help me as to how the sol stood to be paid (seemingly personally) £3bn if the challenge to the award failed. Seems bizarre.

"Oh I couldn't possibly do it for a potential windfall of £1bn, £3bn is my bottom line."

As P&ID’s solicitor during the arbitration and now its director, Mr Andrew had some tough questions to answer about the steady stream of privileged documents, including sensitive legal advice obtained by Nigeria, that had been circulated within P&ID. Although acknowledging he received privileged documents and did not disclose this to either the arbitration tribunal or the court at the time, Mr Andrew resisted the suggestion they were improperly obtained. Instead, he maintained there was an informal practice of sharing privileged documents in Nigeria and they may have been provided for the purpose of settlement negotiations.

Er, bit tricky to argue that you knew you had privileged stuff and you just didn't say anything because everyone was doing it.

Mr Burke KC is, according to Knowles J, nephew to Mr Michael Quinn, one of the two main personnel in ICIL, which owned P&ID and several other business interests in Nigeria of questionable ethics.

Further to my previous comment I should say, BTW, that there are countries in which it is difficult to do business without making - extra-contractual payments. Because if you don't, someone else will make the extra-contractual payment, and then you've lost the entire contract.

I can sympathise with P&ID in incurring £40 million in costs and then having to try to keep the project alive despite being told they'd have to relocate from Lagos to the boondocks and then encountering problems with the acquisition of the wet gas they were suppose to be processing, because - seemingly - of the lack of unity within the Nigerian government.

But the acquisition of privileged documents - apparently illicitly purchased - was a step too far, and the failure of the English lawyers to deal ethically with those documents. It would be a travesty if those guys were able to continue practising law. 

It will be interesting to see whether there is an appeal in this case.

I know nothing of the underlying facts and have no involvement in the case, but I would note that (1) the Judge has not given very much in the way of reasoned explanation for finding the two lawyers were lying and (2) on the professional conduct issue, it is not clear to me how the lawyers could have informed Nigeria or returned privileged documents (as the Judge has held they should) without the consent of their clients - otherwise their confidentiality would have been breached. Usually if you are in the position of being provided with wrongly obtained documents without consent of the clients to return them etc is to withdraw from the case. Of course on the facts none of this might make any difference in the end, but I am a bit troubled as things stand. 

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