Procedural Posture

This document is a judgment of the High Court of Justice, Queen's Bench Division, Commercial Court, concerning an application by the First Defendant, Mr. Boreh, to set aside a freezing injunction and proprietary injunction granted in favor of the Claimants, the Republic of Djibouti and its state-owned port authorities, on 11 September 2013. The application was predicated on allegations that the Claimants and their legal representatives deliberately and/or recklessly misled the court during the initial injunction proceedings.

Principal Legal Issues

The primary issue before the court was whether the Claimants' lead solicitor had deliberately misled the court regarding the dating of intercepted telephone transcripts, which had been used to support a terrorism conviction against Mr. Boreh in Djibouti and to establish a risk of dissipation of assets. Consequently, the court had to determine whether the freezing and proprietary injunctions should be discharged as a sanction for such misconduct, applying principles analogous to the duty of full and frank disclosure and the equitable doctrine of "clean hands."

Tribunal's Analysis and Findings

Applying the two-stage Twinsectra test for dishonesty, Mr. Justice Flaux found that the Claimants' solicitor had acted both objectively and subjectively dishonestly. The court determined that the solicitor was aware that the telephone transcripts were misdated (having occurred before, rather than after, a grenade attack), which rendered the terrorism conviction and the evidence supporting it fundamentally unsafe. Despite this knowledge, the solicitor engaged in a deliberate strategy of evasion and concealment, allowing the court and his own counsel to proceed under a misapprehension during the September 2013 hearing.

The court held that the duty not to mislead the court applies at all stages of litigation. Drawing an analogy to the duty of full and frank disclosure in ex parte applications, the court emphasized that deliberate deception warrants the discharge of equitable relief to deprive the wrongdoer of any improperly obtained advantage. Furthermore, the court found that the Claimants themselves were complicit in the strategy of concealment and had exerted improper commercial pressure on the Defendant, thereby failing to come to equity with clean hands.

Decision

As a result of the deliberate misconduct and the breach of the clean hands doctrine, the court ordered that the worldwide freezing injunction against Mr. Boreh be set aside. However, the court declined to discharge the proprietary injunction over specific shares, reasoning that a proprietary injunction is fundamentally different and less intrusive, and that discharging it would unjustly render the substantive claim nugatory.