[2025] EWHC 2243 (KB)

To place the Disclosure Restriction Applications in context, it is necessary to say something about the claims made in the English Proceedings and the procedural history to date (including that in relation to disclosure).

There are four separately represented Claimant groups, referred to by the names of their solicitor firms as the “QE Claimant”, the “Pallas Claimants”, the “Stewarts Claimants” and the “BCLP Claimants”. The actions are all being case managed together pursuant to my CMC1 Order dated 23 May 2024. All of the Claimants bring claims against Glencore. The Pallas and QE Claimants also bring claims against some of Glencore's former directors, namely Mr Glasenberg and Mr Kalmin.

Glencore is a global natural resources company, and the ultimate parent company of the Glencore group of companies (the “Glencore Group”), which includes GIAG, a company incorporated under Swiss law. Another Glencore company is Glencore UK Limited (“Glencore UK”) which is a company incorporated in England & Wales, and is the wholly owned subsidiary of GIAG. Another company, Glencore Energy is also incorporated in England and Wales, and it is the wholly owned subsidiary of Glencore UK.

The Claimants' claims relate to alleged (and, in some cases, admitted) bribery and corruption in the business activities of certain operating subsidiaries within the Glencore Group, in Africa (the Democratic Republic of the Congo (“DRC”), South Sudan, Nigeria, Cameroon, the Ivory Coast and Equatorial Guinea) and South America (Brazil, Venezuela) and alleged oil price manipulation in relation to the fuel oil market at certain US ports.

The Claimants allege that Mr Glasenberg and Mr Kalmin knew or were reckless as to the existence of this misconduct within the Glencore Group. The Claimants also allege other senior personnel had such knowledge, including Mr Mistakidis, Mr Beard and Mr Gibson.

Some of this alleged misconduct has been the subject of investigations by law enforcement authorities in the United States, Brazil and the United Kingdom (by the SFO), as well as in other jurisdictions including Switzerland (by the Swiss OAG) and the Netherlands (by the DPPO and FIOD).

Certain companies within the Glencore Group have admitted conduct amounting to bribery or corruption in the period 2006 to 2018, and conduct amounting to oil price manipulation in the period 2011 to 2019. To date, that has led to the imposition of fines on, and confiscation of funds from, companies within the Glencore Group totalling US$1.4 billion. The Claimants rely upon the admissions made by the Glencore Group as part of those investigations.

One of the investigations opened was an investigation by the SFO. The SFO opened an investigation into the Glencore group of companies on 12 June 2019 on suspicion of bribery and associated offences relating to oil, oil trading and related products and activities. The investigation was primarily focused on the activities of Glencore’s London office, specifically the activities of the “West Africa desk” and the conduct of Glencore’s employees based in the UK, who were associated with the “West Africa desk”.

It is not necessary to set out the history of the SFO investigations for the purposes of the present applications. It suffices to note (as further addressed below) that the SFO has intervened in the English Proceedings, resulting in the imposition by me of a “Confidentiality Club” in respect of certain categories of disclosed documents. The relevance of that is that the Claimants submit (and Glencore and Mr Glasenberg recognise) that I could fashion an order and impose similar confidentiality restrictions (in the form of a Confidentiality Club) in resect of the documents, the subject matter of the Disclosure Restriction Applications, which would (1) prevent such documents being publicly available and (2) reduce or minimise concerns under foreign law (see Bank Mellat at [63(v)]).

All the Claimants bring claims against Glencore under s.90 of the Financial Services and Markets Act 2000 (the “FSMA”). These claims arise out of the alleged acquisition by the Claimants of shares in Glencore (“the Shares”) as part of, or in the aftermarket for: (a) Glencore's Initial Public Offering on 19 May 2011 (“the IPO”) and (except in the case of the QE Claimant) (b) Glencore's merger with Xstrata Plc on 2 May 2013 (“the Merger”).

The Claimants allege that, in the light of the alleged and/or admitted misconduct referred to above that had occurred by the time of the IPO, the prospectus issued in relation to the IPO (“the IPO Prospectus”) contained untrue and misleading statements and omitted information required to be included under Part VI of FSMA. The Pallas, Stewarts and BCLP Claimants also allege that, in the light of the alleged and/or admitted misconduct referred to above that had occurred by the time of the Merger, the prospectuses issued in relation to the Merger (“the Merger Prospectuses”), together with the IPO prospectuses (“the Prospectuses”) contained untrue and misleading statements and/or omitted information required to be included under Part VI of FSMA.

The Pallas Claimants further advance their claims under s.90 of FSMA concerning the IPO Prospectus and the Merger Prospectus against each of Mr Glasenberg and Mr Kalmin, and the QE Claimant advances its claims under s.90 of FSMA concerning an IPO Prospectus against the remaining Director Defendants. The Pallas Claimants' claims against Mr Glasenberg and Mr Kalmin are advanced only in respect of the alleged statements and omissions concerning the business of the Glencore Group in the Democratic Republic of the Congo.

The Claimants contend that they have suffered loss as a result of the alleged misstatements in, and alleged improper omissions from, the IPO Prospectus and/or the Merger Prospectuses, as the case may be, and claim compensation from one or more of the Defendants (in accordance with their respective claims) under s.90 of FSMA for loss suffered in respect of the Shares.

The QE Claimant and the BCLP Claimants bring claims against Glencore under s.90A of FSMA.

The QE Claimant claims (pursuant to paragraph 3 of Schedule 10A of FSMA) that Glencore's various publications identified at Schedule 7 to the Consolidated Particulars of Claim (“the Schedule 7 Published Information”):-

Both the QE Claimant and the BCLP Claimants claim (pursuant to paragraph 5 of Schedule 10A of FSMA) that Glencore dishonestly delayed the publication of information to which Schedule 10A of FSMA applies, in circumstances where at least one PDMR at Glencore allegedly knowingly acted dishonestly in delaying publication.

The QE Claimant claims compensation for Commodities S.à.r.l having allegedly continued to hold Shares in reliance on the Schedule 7 Published Information and allegedly suffering loss as a result of untrue or misleading statements or omissions, as well as for loss allegedly suffered as a result of Glencore's alleged dishonest delay in publishing information. The BCLP Claimants only claim compensation for loss allegedly suffered as a result of Glencore's alleged dishonest delay in publishing information.

The QE Claimant, a Pallas Claimant (“GIC”) and a Stewarts Claimant (“the Master Fund”), together the “Cornerstone Investors”, rely on separate Cornerstone Agreements entered into on 4 May 2011 with Glencore, Glencore International and various banks. The Cornerstone Investors contend that under the Cornerstone Agreements, each investor has a contractual right against Glencore to compensation that duplicates the rights that other investors acquired upon acquisition of the Shares, including rights under s.90 of FSMA and (in the case of the QE Claimant) common law.

Finally, the QE Claimant currently also advances claims in the tort of deceit, alternatively negligence, against Glencore and the remaining Director Defendants in relation to the alleged false and/or misleading statements and omissions in the IPO Prospectus.

In broad summary, the Defendants admit the alleged misconduct by certain companies in the Glencore Group for the purposes of these proceedings insofar as the same has already been admitted by the Glencore Group in the course of settling six specific law enforcement investigations (“the Admitted Conduct”). Otherwise, the Defendants either deny or put the Claimants to proof as to the alleged misconduct.

Glencore denies that any of the members of its Board of Directors, including any of the Director Defendants, were aware of or reckless as to the existence of any alleged misconduct. The Director Defendants deny awareness of or recklessness in respect of any misconduct (whether part of the Admitted Conduct or not) at any material time. Glencore admits that certain other former employees of the Glencore Group were aware of facts insofar as admissions have already been made following the investigations referred to above, but not otherwise.

The Defendants put each of the Claimants to proof as to their standing to pursue any claims under s.90 and/or s.90A of FSMA (as applicable).

As regards the s.90 FSMA claims:-

As regards the s.90A FSMA claims:-

As regards the Cornerstone Investors’ claims, Glencore admits that the Cornerstone Agreements provided the investor under the relevant Cornerstone Agreement with a contractual right to compensation that duplicated the rights which other investors who purchased or subscribed for shares in the International Offer would have had under s.90 of FSMA and/or at common law in respect of the contents of the IPO Prospectus (if any).

As regards the QE Claimant's claims in deceit and/or negligence:-

As to alleged loss, the Defendants repeat their case on the alleged misstatements and omissions (with Glencore and Mr Glasenberg denying on that basis that the Claimants have suffered loss in respect of the Shares) and otherwise put the Claimants to proof of the individual alleged loss.

The Defendants contend that certain aspects of the Claimants' claims are time-barred.

The Claimants deny that any of their claims are time-barred and rely, insofar as necessary, on the extended limitation period under s.32 of the Limitation Act 1980. The QE Claimant also relies on s.14A of the Limitation Act 1980 as regards its claims for negligent misrepresentation.

The first Case Management Conference in the English Proceedings (“CMC1”) took place before me between 21 and 23 May 2024. The CMC1 Order provided, amongst other matters as follows:-

As to the list of issues approved by the Court, there are 47 main issues for determination, of which 26 are Trial 1 Issues. As is common with securities litigation cases of this kind, the Trial 1 Issues primarily relate to liability and the “defendant side issues”.

At CMC1, I directed that Glencore was to provide early disclosure, at various dates, of eleven categories of documents identified at Appendix 1 to the CMC1 Order (to the extent relevant to the issues in the List of Issues for Disclosure (“LOID”)).

The premise for the CMC1 disclosure order was the Claimants’ submission that each of these categories of documents would be “readily available” (because, it was suggested, they would already have been compiled and reviewed by the Defendants), and so could be “readily located” and provided in short order (see QE’s letter of 23 April 2024 at paragraphs 10 and 15), which was the backdrop against which Orders were made at CMC1.

Paragraph 22(a) of the CMC1 Order provided that, by 25 October 2024, Glencore was to provide disclosure of certain categories of documents listed in Appendix 1 to the CMC1 Order, to the extent relevant to the issues in the LOID.

Those documents included documents within Category 2: “Documents provided to the Glencore Group by the relevant authorities in each of the Investigations referred to in paragraph 1 above, in so far as they relate to the jurisdictions referred to in Section B of the CPOC”. The Investigations listed in paragraph 1 were the investigations into Glencore Group companies by the authorities that I have already referred to above.

Glencore initially proposed that, given the limitations on dissemination of documents provided by some of the relevant authorities, this should not be a category of early disclosure (see the second witness statement of Mr Tolaini (“Tolaini 2”) at [63]). However, Glencore was willing to consent to paragraph 22(a) of the CMC1 Order in the interests of cooperation between the parties and to narrow the issues between the parties (per Tolaini 7 at [29]) and “Subject to receiving the necessary permissions where relevant restrictions/limitations on dissemination exist” (see Clifford Chance’s letter of 20 May 2024, at paragraph 29).

In the event, Glencore says that the disclosure exercise to date has been a time-consuming exercise, with a large amount of time and money having been spent on early disclosure, which has been provided in tranches on 24 September 2024, 25 October 2024, 12 December 2024, 20 December 2024, 10 March 2025, 14 March 2025, 31 March 2025 and 29 April 2025.

Following the CMC1 Order, Glencore took steps to obtain permission to disclose documents within Category 2, where possible, liaising with local counsel and the relevant authorities across the various jurisdictions. By the time of CMC2, in November 2024:

Meanwhile, in August 2024, the SFO was contacted by Clifford Chance LLP (“CC”) (Glencore's solicitors), in the context of the SFO’s investigation, about Glencore's disclosure obligations under the CMC1 Order. CC sought the SFO's permission to disclose certain SFO Category 2 Documents it had identified as being responsive to the CMC1 Order. This led to extensive correspondence that it is not necessary to set out for the purpose of the Disclosure Restriction Applications. Suffice it to note that following representations made at CMC2 which was listed for 26 to 28 November 2024, Orders were made at that CMC which led to an application by the SFO thereafter in relation to disclosure which was heard (in private) immediately before the present hearing, and which (amongst other matters) resulted in the Court approving a Confidentiality Club in relation to particular categories of documents.

It was also at CMC2 that it was ordered (at paragraph 5 of the CMC2 Order) that the Defendants make (by a specified date) “any application they intend to make, based on alleged foreign restrictions on disclosure….” whereby they sought to vary their existing disclosure obligations in the English Proceedings. Glencore and Mr Glasenberg did so on 28 February 2025, with the Glencore Disclosure Restriction Application and Glasenberg Disclosure Restriction Application which are the subject matter of this judgment.

As already foreshadowed, each of the claims relate to alleged and/or admitted misconduct in certain subsidiaries within the Glencore Group in (i) the DRC; (ii) West Africa and South America; as well as (iii) oil price manipulation in relation to the fuel oil market at certain US ports. The Claimants claim that, as a result of the alleged and/or admitted misconduct on which they rely, certain prospectuses and/or other information published by Glencore contained misstatements and/or omitted matters which they should have included, and that each of the Claimants have incurred losses on their investments in Glencore as a result.

The claims include allegations that between 2007 and 2017 the Glencore Group was involved in bribery and corruption in the DRC across a number of transactions, pursuant to a corrupt arrangement between the Glencore Group and Dan Gertler (and entities associated with him). The Claimants infer the existence of a corrupt arrangement between the Glencore Group and Mr Gertler, pursuant to which the Glencore Group engaged Mr Gertler to act on its behalf to facilitate the acquisition and protection of investments in the DRC by the use of corrupt means.

The Claimants infer such matters from various facts, including the terms of certain transactions which the Claimants allege were not made on commercially explicable terms; GIAG’s admissions of bribery in the DRC; the fact of a settlement agreement between GIAG and the DRC government; and various other admissions.

The Claimants allege that individuals including Mr Glasenberg knew or suspected, or were recklessly indifferent to the fact, (i) that the operations of the Glencore Group in the DRC involved bribery and corruption and were reliant on the assistance of Mr Gertler, (ii) that substantial and secretive benefits were provided directly or indirectly to Mr Gertler and (iii) of what is defined as the “DRC Corrupt Arrangement”.

The Defendants deny the existence of the DRC Corrupt Arrangement and knowledge on the part of the relevant individuals. These allegations of bribery and corruption are hotly contested and one of the most important aspects of the Claimants’ case. They do not form part of the so-called Admitted Conduct.

As has already been identified, some of the alleged and/or admitted misconduct on which the Claimants rely has been the subject of investigations by law enforcement authorities in various jurisdictions. Of direct relevance to the Disclosure Restriction Applications are the investigations undertaken by the Swiss OAG, and the DPPO and the FIOD in the Netherlands.

In this regard, a criminal investigation was commenced by the DPPO and the FIOD into the activities of the Glencore Group in the DRC (the “Dutch Investigation”). The investigation began in 2019 (per Tolaini 7 at [85]). It appears from a press release of the FIOD that it is focused on the possible bribery of high-ranking officials in the DRC in relation to obtaining mining licences in cobalt and copper mines.

The Claimants submit, therefore, that the Dutch Investigation, as well as documents, evidence and conclusions generated by it, are therefore important to core issues between the parties. Mr Hill KC, on behalf of Glencore, accepted at the hearing, that the Dutch Investigation was similar in scope to the Swiss OAG investigations, which resulted in a Swiss summary penalty order on 5 August 2024 holding GIAG criminally liable for failing to take all necessary measures to prevent the bribery of a Congolese official by its business partner.

The Claimants infer from the Swiss summary penalty order that the Congolese official was a Mr Mwanke, who is or was a very high-ranking member of the government and close to President Kabila, and that the business partner who bribed Mr Mwanke was Dan Gertler (see Bailes 2, at [30]), a figure who is likely to be of importance in the current proceedings. The Claimants note that such inference was not denied in Tolaini 11 (or, as the Claimants put it, even engaged with).

The Swiss order imposed a compensation order of U$150 million and a fine of 2 million Swiss Francs (CHF). GIAG did not formally admit the findings but agreed not to appeal them, and the order became final on 15 August 2024.

On the same day as the Swiss penalty order was made (5 August 2024), the DPPO discontinued its investigation into GIAG on the basis that the investigations of the Swiss and Dutch authorities had covered the same ground, and as GIAG was a Swiss company, it was more appropriate for it to be penalised in Switzerland (see press release of the DPPO of 5 August 2024). However, the DPPO investigation into certain individuals and entities related to the original investigation has continued (see Tolaini 7 at [86]). No concrete information about that continuing investigation by the DPPO is known.

Mr Glasenberg’s involvement in the Dutch and Swiss investigation into GIAG was as an interviewee, being interviewed by the Swiss OAG on 27 to 29 September and 3 November 2023, with a financial investigator from the FIOD in attendance. On 3 November 2023, the DPPO/FIOD made the MLAT Request of the Swiss OAG seeking legal assistance in relation to the Dutch authorities’ investigation into GIAG and other suspects. On 12 April 2024, Mr Glasenberg’s solicitors were informed that his Swiss counsel had received a copy of the MLAT Request from the Swiss OAG, apparently for the purpose of giving Mr Glasenberg an opportunity to object to copies of his interview statements being provided to the Dutch authorities pursuant to that MLAT Request.

It was as a result of the Swiss OAG providing Mr Glasenberg’s Swiss counsel with a copy of the MLAT Request that it came to be within Mr Glasenberg’s control. Mr Glasenberg considers the MLAT Request to be a document falling within his disclosure obligations under the CMC2 Order and he duly identified it in his first disclosure certificate.

As regards inspection, his solicitors sought permission from the Swiss OAG and the DPPO/FIOD to provide the MLAT Request to the Claimants. The Swiss OAG confirmed it had no objection to that. However, in an email dated 29 January 2024, the DPPO/FIOD stated that it did “object to the disclosure of our Mutual Request for Legal assistance to the Claimants in the U.K. civil litigation”.

I address the correspondence of Glencore and Mr Glasenberg with the FIOD in Section G below. It is the ongoing investigation in the Netherlands that provides the backdrop to the DPPO not consenting to the release of the documents for inspection in the English Proceedings, albeit, as will appear, the expert evidence before me is that the DPPO does not, in fact, have any power to give such consent in any event, even if it had been desirous of doing so (which it is clear it is not, as will appear below).