A solicitor who received leaked confidential documents from the opposing side is not entitled to appeal a ruling that he acted improperly, the Court of Appeal has found.
Seamus Andrew argued in The Federal Republic of Nigeria v Process and Industrial Developments Ltd that he had been treated unfairly by a judge who accused him of misleading the court and being motivated by greed.
But the Court of Appeal ruled that the challenge should fail on both procedural and legal grounds.
In the course of appealing a multi-billion-dollar arbitration award, the Nigerian government had made specific allegations against Andrew in relation to the receipt and use of internal legal documents deliberately leaked by individuals in Nigeria. It was alleged that he had improperly been provided with these documents but had not revealed this.
In the 2023 High Court judgment that followed the eight-week trial, Mr Justice Robin Knowles ruled that Andrew had appreciated that the documents passed to him were privileged and that his explanation that he believed they were part of settlement discussions was untrue. The judge said the continued retention and use of the documents was ‘indefensible’ and motivated by the money that could be made if his client succeeded in the arbitration. The court heard that Andrew, who became a director of defendant P&ID after the arbitration had concluded, was in line to make up to $3bn if the case was won.
In his endnote, the judge said the case ‘brought together a combination of examples of what some individuals will do for money’ and stated he would refer the matter to the Solicitors Regulation Authority and – in the case of counsel Trevor Burke KC who appeared for P&ID – the Bar Standards Board.
Andrew was given until 1 December 2023 to file any grounds of appeal against the judge’s findings that he had breached his professional duties by failing to return the leaked documents. This deadline was missed, but Andrew then indicated he would seek permission to appeal directly to the Court of Appeal.
Initially, permission to appeal and an extension of time were refused by Lord Justice Males, but Andrew was then allowed to make submissions to the court at a two-day hearing last month.
Andrew argued that the High Court judge’s findings that he breached his professional obligations and was implicated in wider allegations of bribery and corruption were ‘procedurally unfair’ and breached his human rights. These specific allegations were not put to him in cross-examination and there was no warning about a potential allegation of corruption that might have prompted Andrew to seek independent legal representation.
Lawyers for Andrew said that the judge did not explain the solicitor was under a duty to return the internal legal documents. They argued the judge should have explained the basis of such a duty, since Andrew owed a duty to his client P&ID to keep confidential information he received from it. If he had a duty to return the documents, it was submitted, he was faced with conflicting obligations.
The Federal Republic of Nigeria told the court that the suggestion the judge was on some ‘frolic on his own’ was ‘completely divorced’ from the reality that allegations were pleaded, that Andrew gave extensive evidence and that he had ‘lied’ to the court about thinking the documents were legitimately provided.
Sir Julian Flaux, giving judgment in the Court of Appeal, ruled that the judge was ‘clearly entitled’ to disbelieve Andrew’s explanations for receiving and retaining the documents and was under no obligation to give more detailed reasons why his evidence was being rejected. ‘[Andrew’s] evidence consisted of self-serving denials which the judge did not believe and it was simply not necessary for the judge to say more than that this was not truthful evidence,’ Flaux added.
