CL-2015-000047 - [2025] EWHC 2724 (Comm)

FURTHER INFORMATION

I deal with these matters in fairly shortly order given the timing constraints. I bear in mind that any request under Part 18 “should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the….party to prepare his own case or to understand the case he has to meet” (PD18 para. 1.2); that Part 18 “does not exist to facilitate "fishing expeditions"” (Ismailov v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 863 (Admin) at [28]); and that the court’s power is subject to “any rule of law to the contrary” (CPR r18.1(2)) and thus cannot be used to compel disclosure of information protected on other grounds, such as privilege (White Book (Vol.1) note §18.1.3).

Specifically as regards privilege, I note the following.

It was noted in Punjab National Bank (International) Ltd v Techtrek India Ltd [2020] EWHC 539 (Ch) at [21] that “there is nothing in CPR rule 22(1) that requires the legal representative when signing a statement of truth on behalf of an incorporated party to identify the source of instructions from which authority to sign came”. It does not follow, though, that the court cannot order a party to do so. Certain observations of Michael Green J in Punjab National Bank (International) Ltd v Techtrek India Ltd [2020] EWHC 539 (Ch) at [21] might suggest that the court should not seek to look behind the “veil of privilege” to see how the legal representative came to be authorised to sign the statement of truth. It is unclear to me how that approach, if rigorously applied, can be squared with the notion that the client is responsible for, and can be made accountable for, the statement of truth. If the client is an individual, then it will be clear who was in substance attesting to the truth of the contents of the statement of case. Thus, if the client knew the statement of case to contain false allegations, they could be the subject of proceedings under CPR 32.14. It would be surprising if, where the client is a company, the party can decline to state which individual(s) believed the facts stated to be true, with the result that individuals who were the source of allegations which they knew to be untrue may escape responsibility altogether. As Males LJ noted in the passage quoted above from Loreley, a witness statement made by a solicitor on instructions has to set out the source of his information and belief, without it ever having been thought that this discloses privileged information. Similar considerations must in my view apply to a statement of truth whereby a solicitor confirms that the client believes its contents to be true.

Requests 1a and d seek further information about § 10(2) of the Claimants’ Defence:-

“It is admitted that Mr Fredriksen authorised this claim in the sense that he agreed and approved of it. However, he is and was not at this time a director of any of the Claimants. He is the settlor of the trust which owns the Fourth Claimant (“Farahead”). No admissions are made otherwise, including in relation to his agreement to or approval of any particular allegations or representations being made in these proceedings. At all material times, Mr Fredriksen relied on an explanation of the POC and its contents by Freshfields (and the firms that replaced them). He did not read the Adams Affidavit or the POC in full or closely. He relied on the Claimants’ legal team, supported at least initially by Mr Adams, to run the legal process and to give advice in relation to the same. He was not aware that any allegations being made by the Claimants at any time were false. To the extent necessary, in relation to Mr Fredriksen’s knowledge, the Claimants will also rely on all of the available evidence in relation to how Mr Fredriksen conducts his business, including that he was not involved in the details relating to the Arcadia Group’s affairs (including AL, in which regard there was also a lack of reporting from D1 and D2) and that he does not use a computer or email.”

Request 1a asks whether, for each of the Claimants’ statements of case, Mr Fredriksen authorised the Claimants’ lawyers to sign the relevant statement of truth. (In fact, some statements of case were signed by Mr Adams, in which case the request will not apply.) The Claimants have, as set out above, averred that Mr Fredriksen “authorised this claim in the sense that he agreed and approved of it”. The request legitimately seeks elucidation of that averment in a manner that is necessary and proportionate, and which does not impinge on legal professional privilege. The same applies to Request 1d, which asks whether Mr Fredriksen “agreed and approved” the contents of each of the Claimants’ statements of case.

Requests 1b and c ask, in substance, whether the legal representatives, when they signed statements of truth, explained the matters set out in CPR PD 22 § 3.7 to Mr Fredriksen. D1/D2 submit that the rebuttable presumption to that effect provided for in PD22 § 3.7 does not apply because it requires an explanation to be given to the client, whereas the Claimants’ solicitors maintain that Mr Fredriksen was not their client (see, e.g., Reed Smith letter of 20 May 2025). Even on that footing, however, I do not consider those requests necessary or proportionate. If it were the case that Mr Fredriksen knew that allegations were being advanced that he knew to be untrue, I find it hard to see how the question of dishonesty would turn on whether or not such explanations were provided.

Requests 2 and 3 ask for details of the pleaded “explanation” provided to Mr Fredriksen by the Claimants’ lawyers. Mr Quest KC made clear during oral argument that it is not the Claimants’ intention in pleading this to make a positive case that Mr Fredriksen's knowledge or lack of knowledge of any relevant fact was based on what he was told or advised by Freshfields. The purpose of including the relevant sentence is to identify, as a matter of narrative, the process by which the injunction was obtained and to indicate the nature of Mr Fredriksen's involvement in that process. The Claimants are, he said, not seeking as part of this pleading to say that Mr Fredriksen believed or did not believe anything because that was what he was told by Freshfields. Mr Quest KC submitted that this should be read as a narrative description of the kind that Waksman J in PCP said did not give rise to a waiver.

If and to the extent that that may amount to ‘rowing back’ or turning the clock back from what the Claimants have pleaded, then in my view the Claimants should be permitted to do so. The Defendants suggested that the Claimants should not be allowed to do so without amending their statements of case. I do not consider that to be necessary: the transcript will make clear that no positive case is advanced of the kind mentioned above. I shall not order the Claimants to answer these two requests.

Request 5 is as follows:-

“5.

The Claimants plead that Mr Fredriksen relied on the Claimants’ legal team to “run the legal process [in the proceedings] and to give advice in relation to the same”. Please confirm when (on the Claimants’ case) the Claimants’ legal team first informed Mr Fredriksen about each of the following allegations. Alternatively, please confirm whether the Claimants allege that Mr Fredriksen was never informed about the following allegations.

a.

The allegation described at paragraph 6 of the Inquiry Particulars;

b.

The allegation described at paragraph 9 of the Inquiry Particulars;

c.

The allegation described at paragraph 13 of the Inquiry Particulars;

d.

The allegation described at paragraph 17 of the Inquiry Particulars;

e.

The allegation described at paragraph 21 of the Inquiry Particulars.”

At one level, this request might be seen as seeking information about the contents of privileged communications (and Mr Quest KC again confirmed that the Claimants seek to advance no positive case in that regard by this plea). However, on another view, particularly focusing on the sentence starting “Alternatively” followed by the subparagraphs, what this request in substance seeks to discover is whether Mr Fredriksen knew that the five identified allegations were being advanced. The Claimants have pleaded that Mr Fredriksen agreed and approved of the claim, but (in § 10(2) quoted above) have sought to make ‘no admissions’ about whether Mr Fredriksen agreed to or approved any particular allegations or representations made in the proceedings. In my view, that squarely raises and puts in issue the question of which allegations Mr Fredriksen was aware of. That is a point of central importance to the dishonesty allegations which I have decided should be allowed to proceed. It does not, in my view, involve disclosure of privileged matter: what is sought (on my reading of this part of the request) goes simply to the factual question of which allegations Mr Fredriksen was aware of. It does not involve disclosure of the contents of legal advice or requests for advice about the truth of or evidence concerning those allegations; and it is not the kind of matter whose disclosure would tend to inhibit candid discussion between lawyers and clients. Even if that is wrong, I would conclude that the Claimants have, by § 10(2) of their Defence, waived privilege by placing in issue Mr Fredriksen’s awareness or lack of awareness of the allegations being made in the proceedings.

I shall therefore allow Request 5 to the extent that it asks whether, and when, Mr Fredriksen was aware that the five identified allegations were being made.

Request 6 seeks details of the support said to have been provided by Mr Adams. Similarly, request 8 seeks details of the assistance said to have been provided by Mr Hannas, as to which § 14(7) of the Claimants’ Defence states:-

“In relation to Mr Hannas, he is not aware that anyone on behalf of the Claimants has ever deliberately misrepresented any fact for the purpose of these proceedings. He himself gave limited assistance to Freshfields and his colleagues in the process of obtaining the Freezing Order and afterwards. He does not recall speaking to anyone other than Freshfields or Mr Francisco at this time. Nor can he recall receiving or reading the Adams Affidavit or the POC at this time…”

In my view, these are intended as mere narrative references to the process which do not seek to advance a positive case about the contents of the communications with Mr Adams or Mr Hannas, and Mr Quest KC confirmed that to be the Claimants’ position. On that basis, I shall not direct the Claimants to answer these requests.

Requests 2 and 3 arise from § 13(3) of the Claimants’ Defence to D5’s Points of Claim:-

“It was nonetheless possible that those inputting into the process of obtaining and maintaining the Injunction might honestly misremember or forget matters, including those which had taken place a number of years previously, or that documents might not have been reviewed at this time which would later become available as a result of disclosure (which did not happen in this case until December 2022 onwards).”

The requests seek identification of the individuals who are said to have had input into the processes of obtaining and maintaining the injunction. In my view, § 13(3) is a general statement as to how, in principle, allegations might be made wrongly but without dishonesty, rather than a positive case that particular allegations had come about in that way. Mr Quest KC confirmed in oral submissions that that is how the statement should be read. It is true that the Claimants’ response to this request included a claim for privilege. However, in substance that is an assertion of privilege in relation to the information sought by the request: it does not follow that the contents of § 13(3) constitutes more than mere narrative. On that basis, I do not consider that I should direct the Claimants to respond to these requests, which may also be seen as ‘fishing’ for additional custodians or individuals through whom the Claimant companies might be said to have made allegations dishonestly.

Request 5 arises from § 13(6) of the Defence:-

“There was accordingly a very significant amount of evidence adduced in support of the Claimants’ application for the Injunction which painted a picture of trading by D1 and D2, including through Arcadia Lebanon and Attock Mauritius (thereby implicating D5), which the Claimants genuinely believed could not be honestly explained and had been concealed from them.”

The request asks which natural persons the Claimants aver had a ‘genuine belief’ in relation to the evidence adduced in support of the Claimants’ application for the injunction. In my view this request is justified. Paragraph 13(6) sets out a clear positive case of genuine belief on the part of the Claimants, which necessarily meant belief on the part of one or more natural persons, and the Defendants are entitled to know who in particular is alleged to have had that belief. I do not accept the Claimants’ submission that this can be construed as mere narrative. I have noted that D5’s Reply asserts at § 13 that the relevance of Defence § 13 as a whole is denied, but it remains a matter in issue which in my view does have potential relevance to the issues for determination.

Requests 6, 7 and 8 relate to Defence § 13(6), quoted above, along with §§ 14(1), (2) and (4):-

“(1)

It is admitted that Mr Fredriksen authorised this claim in the sense that he agreed and approved of it. However, he is and was not at this time a director of any of the Claimants. He is the settlor of the trust which owns the Fourth Claimant (“Farahead”). Further, no admissions are made in relation to his agreement to or approval of any particular allegations or representations being made in these proceedings. It is admitted that the letter from Freshfields dated 18 July 2015 cited Mr Fredriksen as a source of information, in most instances along with others (in particular Mr Trøim and Mr Hannas), for certain statements made in the Adams Affidavit. It is admitted that he was described in the Claimants’ Re-Amended Particulars of Claim dated 15 December 2015 as one of the “Farahead Representatives”.

(2)

Further, in relation to Mr Fredriksen’s knowledge, at all material times he relied on an explanation of the Claimants’ Particulars of Claim (“POC”) POC and its contents by Freshfields (and the firms that replaced them). He did not read the Adams Affidavit or the POC in full or closely. He also relied on the Claimants’ legal team, supported at least initially by Mr Adams, to run the legal process and to give advice in relation to the same. He was not aware that any representations being made by the Claimants at any time were false. To the extent necessary, the Claimants will also rely on all of the available evidence in relation to how Mr Fredriksen conducts his business, including that he was not involved in the details relating to the Arcadia Group’s affairs (including Arcadia Lebanon, in which regard there was also a lack of reporting from D1 and D2) and that he does not use a computer or email.

…

(4)

It is admitted that Mr Hannas held these roles at these times. However, he provided limited assistance to Freshfields and his colleagues in the process of obtaining the Injunction (and also maintaining it). He cannot recall receiving or reading the Adams Affidavit or the POC at this time.”

The requests ask which natural persons the Claimants aver had knowledge, intention and a state of mind/an honest state of mind which is to be attributed to the Claimants in relation to obtaining and maintaining the injunction, and whether the Claimants admit or deny that the knowledge, intention and actions of Mr Fredriksen and Mr Hannas are to be attributed and/or imputed to the Claimants for the purposes of obtaining and maintaining the injunction. In my view, those requests do not seek further information about a matter the Claimants have pleaded, and concern matters which it is for the Defendants to plead and prove, or matters of law. I do not consider it proportionate or necessary to direct the Claimants to answer those requests.