[2025] EWHC 2243 (KB)

There are the following factual witness statements before the Court, which I have read and bear well in mind:-

The function of expert witnesses on foreign law was summarised by the Court of Appeal in the case of MCC Proceeds Inc v Bishopsgate Investment Trust plc [1999] C.L.C. 417 at [23]-[24]:-

“23.

In our judgment, the function of the expert witness on foreign law can be summarised as follows:

(1)

to inform the court of the relevant contents of the foreign law; identifying statutes or other legislation and explaining where necessary the foreign court's approach to their construction;

(2)

to identify judgments or other authorities, explaining what status they have as sources of the foreign law; and

(3)

where there is no authority directly in point, to assist the English judge in making a finding as to what the foreign court's ruling would be if the issue was to arise for decision there.

24.

The first and second of these require the exercise of judgment in deciding what the issues are and what statutes or precedents are relevant to them, but it is only the third which gives much scope in practice for opinion evidence, which is the basic role of the expert witness. And it is important, in our judgment, to note the purpose for which the evidence is given. This is to predict the likely decision of a foreign court, not to press upon the English judge the witness's personal views as to what the foreign law might be. Thus, in G & H Montage GmbH v Irvani [1990] 1 WLR 667 (CA), Mustill LJ said (at p. 684G):

‘The fact that the plaintiffs' expert was not able to do more than assert, in this novel situation, his own view on how the German court would react when faced with a similar problem does not disqualify his evidence from being relied upon. There are many fields of law in which the books provide no direct answer, and where the skill of the lawyer lies precisely in predicting what answer should be given. If the judge concludes that the expert's prediction is reliable, he is fully entitled to give effect to it.’

This passage emphasised that the expert witness is entitled to give opinion evidence in the absence of direct authority, but we would underline the restrictions which it places upon him. His role is to ‘predict’ what the foreign court would decide, and only in this sense should he say ‘what answer should be given’”.

The experts can accordingly assist the Court in relation to the provisions of the DCC and their interpretation as a matter of Dutch law, as well as in relation to any relevant Dutch authorities. They can also opine upon aspects of the risk of there being a prosecution by the Dutch authorities based on any relevant experience they may have in that regard.

However, and as Mr Hill KC rightly accepted in the course of his oral submissions, the risk of prosecution also involves consideration of the correspondence with the DPPO, which he also rightly accepted the English Court is itself well placed to construe, and it is ultimately also a matter for the English Court to make findings as to whether or not there is a real risk of prosecution having regard to all relevant considerations which includes not only the expert evidence, but also matters going beyond the proper scope of expert evidence (including, for example, matters that could be included within an English order, such as recitals and a confidentiality club, and the perspective of the English Court as to considerations of comity).

Paragraph 8 of the CMC2 Order permitted the Defendants to adduce written evidence from one expert in each of the fields of Canadian law, Dutch law and Swiss law insofar as relevant to the Disclosure Restriction Applications.

In respect of Dutch law (which is the only foreign law that remains relevant to what remains of the Disclosure Restriction Applications), Glencore and Mr Glasenberg have filed expert reports from Professor Matthijs Nelemans (“Nelemans 1” and “Nelemans 2”), whilst the Claimants have filed an expert’s report from Professor Dian Brouwer (“Brouwer 1”).

The expert evidence of Dutch law addresses three categories of documents, to which (the Defendants submit) foreign legal restrictions apply:-

Whilst (1) and (2) were originally the subject matter of the Glencore Disclosure Restriction Application, the Claimants confirmed, in advance of the hearing, that they will not pursue any further challenge to the non-production of the DPPO/FIOD Correspondence (see Stewarts’ letter of 9 May 2025 at paragraph 4).

This hearing is accordingly only concerned with the three FIOD Documents (on the Glencore Disclosure Restriction Application) and the MLAT Request (on the Glasenberg Disclosure Restriction Application). Accordingly, it is generally not necessary to address the experts’ views on the DPPO/FIOD Correspondence. However, and as shall appear, one aspect of the DPPO/FIOD expert evidence remains relevant, namely by way of contrast as to how Professor Nelemans expressed his views on the FIOD Documents, and risk of prosecution, in Nelemans 1, compared with how he expressed his views in respect of the DPPO/FIOD Correspondence, which is then to be contrasted with how he expressed himself in respect of the FIOD Documents, and risk of prosecution in Nelemans 2.

Unfortunately, and whilst there are some areas of common ground between Professor Nelemans and Professor Brouwer in relation to Dutch law (as addressed in Section D.2.4), there is a stark disagreement between them both as to whether, in the event of disclosure in the English Proceedings, any offence would be committed under section 184(1) of the DCC (in the case of Glencore and Mr Glasenberg) or under section 272 of the DCC (in the case of Mr Glasenberg) and, even more fundamentally, there is a stark disagreement as to whether there is any, or any real, risk of prosecution in such circumstances under section 184(1) of the DCC or (in the case of Mr Glasenberg) section 272 of the DCC.

Professor Nelemans has been a Professor of Financial Law Enforcement at the Criminal Law Department of Tilburg Law School since 2014, where he obtained a PhD in 2007. He has a background in the academic study and teaching of financial and economic criminal law and its enforcement by regulatory authorities and public prosecutors. He has provided advice and evidence for a range of corporates and to leading law firms, and has been a guest teacher at leading US universities. However, he does not speak of any experience in the practice of criminal law, or in dealing with Dutch criminal authorities (in Nelemans 1, at paragraphs 4-6).

Professor Brouwer also has a background in the advanced study and teaching of criminal financial law. He has published widely on the subject and has been a member of central committees concerning criminal procedure and economic criminal law (see Brouwer 1, at paragraph 5, Appendix 1). However, in contra-distinction to Professor Nelemans, he is also a practising lawyer, with over 25 years’ experience in white collar crime cases, and of dealing with the DPPO.

Whilst I have no doubt that each expert has sufficient expertise to opine on Dutch law generally, including in relation to provisions of the DCC, I consider that Professor Brouwer has the greater practical experience of the application of the DCC and of dealing with the DPPO, in terms of how the DPPO operates and makes decisions whether to prosecute or not, as well as factors and matters likely to be considered by the DPPO in coming to that decision.

I consider that greater experience in this area is important, as a key issue is whether there is, or is not, any real risk of prosecution. The Claimants submit that, in such circumstances, where there is a difference in opinion between Professor Brouwer and Professor Nelemans I should prefer the views of Professor Brouwer to those of Professor Nelemans, in particular in relation to the real world aspects of their evidence which is most acute, and most in point, in relation to their opinion evidence concerning any actual risk of prosecution. I consider that there is considerable force in such submission, and I have borne such distinction well in mind when considering their respective evidence.

However, and more fundamentally, the Claimants also criticise Professor Nelemans for what are said to be striking changes in Professor Nelemans’ evidence between Nelemans 1 and Nelemans 2 in relation to the FIOD Documents, in circumstances where there is no convincing explanation, or justification, for such change in evidence, as a result of which it is submitted that where there is a difference between Professor Nelemans and Professor Brouwer as to the views they express both as to Dutch law and as to the risk of prosecution the views of Professor Brouwer should be preferred.

In Nelemans 1, and the issue as to whether there would be any commission of a criminal offence, Professor Nelemans repeatedly (and with at least internal consistency) puts it no higher than that disclosure of the FIOD Documents may amount to an offence under section 184 of the DCC (second part). He does so both in terms and implicitly by contrast with his opinions about the DPPO/FIOD Correspondence (where his views are much more forthright). The difference in language (and conclusions) is striking, and clearly shows a more tentative, and less certain, opinion in relation to the FIOD Documents. Thus:-

By contrast, on the DPPO/FIOD Correspondence, he concludes in Nelemans 1, at paragraph 113:-

“To the extent that GIAG were to disclose the DPPO/FIOD Correspondence to Glencore and its counsel, this would likely result in a breach of the Undertaking, as well as a violation of section 272 DCC. If Glencore (once it had received the DPPO/FIOD Correspondence from GIAG) were to disclose the correspondence in the Proceedings, this would likely result in a violation of section 272 DCC, but it would not be a breach of the Undertaking since Glencore is not a party to the Undertaking”.

(emphasis added)

Yet in Nelemans 2 (responding to Professor Brouwer’s report in which Professor Brouwer set out his reasons why he concluded (at paragraph 27 of Brouwer 1) that the disclosure of documents in the context of civil proceedings in the UK cannot give rise to concerns in the context of the second offence in section 184(1) of the DCC, and why he disagreed with Professor Nelemans’ conclusion (in Nelemans 1, paragraph 95) that, “the DPPO may conclude that a disclosure by GIAG intentionally hinders the ongoing investigation”, Professor Nelemans now suggested that disclosure in the English Proceedings will also prevent, obstruct or foil the DPPO’s refusal of consent to disclosure (i.e., fulfil the second limb of s. 184(1)): see for example Nelemans 2, at 200(a).

It is difficult to see how this can be characterised (as Mr Hill KC sought to characterise it) as a “rebuttal point”, but even if it were appropriate to characterise it as a rebuttal point, Professor Nelemans then reaches a much stronger conclusion than in Nelemans 1, concluding (at Nelemans 2, paragraph 57 that):-

“preventing, obstructing or foiling the ongoing investigation and/or specific investigative acts by disclosing the FIOD Documents […] and/or the MLAT Request or acting contrary to the DPPO’s refusal to consent with disclosing these documents, would in my opinion be a violation of the second part of section 184(1) DCC. I note that this is a stronger conclusion than in Nelemans 1 (paragraph [95]) and is derived from the foregoing more detailed analysis of section 184(1) DCC”.

(emphasis added)

The difficulty I have with Professor Nelemans’ asserted reason for this shift (“more detailed analysis of s.184”) is that, in reality, his “more detailed analysis” amounts to little more than his disagreement with Professor Brouwer about the intended scope of s.184, and to the extent that he is relying on the correspondence with the DPPO, as addressed in Section F.1 below, I do not consider that such correspondence supports his much stronger conclusion – very much the reverse. As shall be seen in that correspondence the DPPO did not say that any part of section 184(1) applied.

There is also, in Nelemans 2, what appears to be an unjustified “firming up” on risk of prosecution, and a dilution of the chances of the Defendants being able to advance successful affirmative defences (which would also impact on the risk of prosecution). Thus, in Nelemans 1 there is no concluded view on the level of risk of prosecution expressed in relation to disclosure of the FIOD Documents (see at 148(a)), yet in contrast in relation to the DPPO/FIOD Correspondence Professor Nelemans expresses the view that it is “more likely than not that the DPPO will prosecute GIAG … for disclosing the DPPO/FIOD Correspondence to Glencore. Such statement relates to section 272 of the DCC although he adds, “potentially also on the basis of the second part of section 184 of the DCC).

Equally in Nelemans 1, Professor Nelemans recognised that Glencore’s correspondence with the DPPO in relation to section 184(1) and what he characterises as the “ambivalence of the DPPO’s statement” (in fact as will appear I consider it more than that), “would make it more difficult for the DPPO to prosecute under section 184 of the DCC as a prospective defendant that disclosed the FIOD Documents and was prosecuted under section 184 of the DCC would raise the defence of absence of any culpability (also known as the AVAS-defence)” and argue that they relied on the earlier statements by the DPPO on the applicability of section 184 of the DCC. In Nelemans 1, Professor Nelemans also considered that this would “provide a compelling argument to support an AVAS-defence”.

Yet, in Nelemans 2, Professor Nelemans ultimately opines in his conclusion paragraph 200(c), “that a prosecution is more likely than not and that the chances of successfully invoking an affirmative defence are slim” (though this seems to be a general conclusion which covers the DPPO/FIOD Correspondence and the FIOD Documents and is not specific to the FIOD Documents). Once again, I do not consider that the matters set out in Nelemans 2 justify such change of stance.

Whilst it is suggested by Mr Hill KC that it is understandable (as occurs with lawyers) to firm up one’s views after further analysis and consideration, experts are instructed to give their independent expert opinion, and are under a professional obligation to explain and justify any change of opinion. In this context it is somewhat strange that views expressed without considering another’s expert report should then be expressed in very much stronger terms after reading the report of another expert who expresses a contrary view with which the first expert disagrees.

I consider that such changes in Professor Nelemans’ opinions, which I do not consider are satisfactorily explained in Nelemans 2, do call into question the reliability of his evidence. In such circumstances, and given also the greater relevant experience of Professor Brouwer in relation to the practical application of the DCC and dealing with the DPPO, I have approached the views expressed by Professor Nelemans with circumspection, and where there is a difference between the views of Professor Nelemans and Professor Brouwer both as to Dutch law and as to the risk of prosecution, I consider that the views expressed by Professor Brouwer should be preferred.

There are, however, some matters that are common ground between the experts, namely:-