[2025] EWHC 2243 (KB)

As is noted in Hollander, Documentary Evidence (15^th ed.) at paragraph 7-30, “It is notable that in most of the cases, the court has refused to vary the disclosure order because of the risk of foreign law incrimination”. One reason for this may well be, as observed in Morris at [73], that:-

“[T]he Court should normally lean in favour (probably heavily in favour) of ordering inspection, especially where a substantial number of important documents are involved, as the question of discovery and inspection is a question of procedure which, under international law, is to be determined in accordance with the lex fori”.

As a further preliminary point, clearly if there is no real risk of prosecution (as I have found), the risk of prosecution will carry little, if any, weight. Equally, the smaller or less significant the risk (even if it surmounts the threshold of being a “real risk”), the less weight it will be given in the balance (see Tugushev at [34]).

In what follows I have assumed that there is (contrary to my findings above) a real risk of prosecution. I do so solely to illustrate the outcome if one were to get to the stage of performing the balancing exercise having concluded that there was a real risk of prosecution. For the reasons set out below I am satisfied that even on this (hypothetical) scenario the balance comes down in favour of dismissing the Glencore Disclosure Restriction Application and maintaining disclosure and inspection (as applicable).

The Claimants submit that the three FIOD documents are both relevant and important for the fair disposal of the English Proceedings. This is addressed in the second witness statement of Elaina Bailes (see in particular Bailes 2 at paragraphs 29-33, 43 and 48).

In Tolaini 7, Mr Tolaini of CC identified (as already addressed) that the investigations in the Netherlands were led by the DPPO and executed by the FIOD. The investigation was directed to GIAG as of 2019, and first made known to GIAG in 2021. The investigation was dismissed on or around 5 August 2024 (the “DPPO Glencore Investigation”). Mr Tolaini explains that the DPPO Glencore Investigation was similar in scope to the “OAG Investigations” conducted by the Swiss authorities. In that regard, the “Concluded OAG Investigations” (as defined in Tolaini 7 at paragraph 99) ended, as already noted in a summary penalty order by the Office of the Attorney General on 5 August 2024 (the “Swiss Order”). Under the Swiss Order, GIAG was held criminally liable for failing to take all necessary reasonable and organisational measures to prevent the bribery of a Congolese public official by its business partner in 2011 and ordered to pay a fine of CHF 2 million and a compensation claim of US$150 million. While GIAG did not admit the findings, it agreed not to appeal the Swiss Order, which became final on 15 August 2024.

On the basis of (amongst other things) the Swiss Order, the Claimants aver, at paragraphs 27, 29 and 40A of their Re-Amended Consolidated Particulars of Claim (the “RACPOC”), that: Mr Gertler paid bribes of approximately $10 million to Mr Mwanke in 2011 in relation to certain significant transactions in the DRC; that Mr Gertler was acting in the interests of the Glencore Group when making those payments; and that Glencore ought to have been aware of the very high risk of bribery in the DRC generally and in relation to Mr Gertler and these transactions in particular.

As already noted, the DPPO Glencore Investigation was dismissed on the same day as the conclusion of the Concluded OAG Investigations (i.e. 5 August 2024), on the basis that (in summary) GIAG was a Swiss company and criminal proceedings in Switzerland were therefore preferable, the Swiss Order meant that it was no longer appropriate for the DPPO Glencore Investigation to continue.

Ms Bailes submits, I consider with some force, that in the circumstances, it is clear that the DPPO Glencore Investigation concerned issues, facts and matters which are of significant importance to the Co-Managed Claims. The RACPOC set out, at Section B1, a detailed case of serious wrongdoing by Glencore in relation to the DRC, and then make serious allegations of knowledge against relevant Glencore individuals. Further, the RACPOC expressly rely on (a) the DPPO Glencore Investigation and (b) the Swiss Order resulting from the Concluded OAG Investigations, in support of the Claimants’ pleaded case in relation to DRC matters.

CC, in a letter dated 15 April 2025, explained (at paragraph 3(a)) that the three FIOD Documents consisted of two police reports (procesverbaal) and a presentation slide deck, all of which had been prepared by the FIOD. The Claimants submit (as identified in Bailes 2) that this further supports the natural inference that these documents are significant and important documents which will be relevant to the determination of the claims in the current proceedings. It is notable that subsequent statements of Mr Tolaini (Tolaini 7 and Tolaini 11) did not suggest to the contrary, nor was any such suggestion made in CC’s letter of 15 April 2025.

This is to be contrasted, for example, with Glencore’s clear position on the alleged irrelevance and peripheral nature of the OAG AP Documents (see Tolaini 7, at paragraph 105). Glencore has not engaged in a similar exercise in relation to the FIOD Documents.

Glencore now suggests (at paragraph 10 of Glencore’s Skeleton) that the FIOD Documents “do not seem likely to be of particular significance to the English proceedings, still less of such importance as to outweigh the risks”.

This new assertion causes me some concern. First, this is the first time that such an assertion has been made. Secondly, the basis for such assertion is unclear. Thirdly, it is far from clear how Glencore and CC even feel able to make such assertion given that, on the evidence, Glencore and CC have not even seen the documents. In this regard, both Glencore and CC have confirmed that they have not themselves seen the documents - see CC’s letter dated 15 April 2015 at [3], “we understand from De Brauw that they cannot share any specific information about the contents of…the FIOD Documents”. Nor does the position seem to have changed since given that Mr Tolaini, in Tolaini 11 at paragraphs 56 to 57, referred to this letter without any suggestion that the position had changed.

The assertion that the documents, “do not seem likely to be of particular significance to the English proceedings, still less of such importance as to outweigh the risks” seems, in such circumstances, to not only be a bare assertion, but also one that is devoid of any proper evidential basis.

It is supplemented by an assertion that under consideration are “only three documents” in comparison to the very large numbers of documents in many of the cases that are referred to, and to the very large number of documents that Glencore already has, and will hereafter, disclose as part of the disclosure exercise. The suggestion seems to be that it is unlikely that three documents should happen to be relevant and important documents. But that is a non-sequitur for a number of reasons:-

In such circumstances, I pressed Mr Hill KC in the course of his oral submissions as to how Glencore could assert that these documents “do not seem likely to be of particular significance to the English proceedings”. This caused Mr Hill KC to change tack somewhat in his oral submissions (on 22 May 2025 Day 3), to submit that Glencore’s position was that the documents are not likely to be “incrementally significant”, which on Day 4 (27 June 2025) he clarified as meaning, “adding anything of significance”. When I pressed him as to how he could say that the documents are not likely to be “incrementally significant” or “adding anything of significance” given that neither Glencore, CC, nor he had seen them, he said, “All I can say is it seems unlikely”, and “it looks like that these are high level, early stage documents”. I have to say that such exchanges evidence, if nothing else, that Glencore and those acting for them simply do not know what those documents contain, and to suggest that the Dutch were “piggy-backing” on the Swiss investigation does not mean that the Dutch were not conducting investigations of their own, and putting the product of such investigations into their reports.

Mr Onslow KC also makes what I consider amount to two potentially valid points about the “incrementally significant” point. First, that this amounts to an acceptance that the documents are, or may well be, significant in their own right (certainly that is a realistic position to take) and, secondly, the stance of Glencore and those acting for them is pure speculation, as they have not even tested their assertions with De Brauw (who have seen the documents), no doubt due to confidentiality reasons. The reality is that Glencore are simply not in a position to opine about such matters. It is therefore the second point which is the more fundamental, and powerful – Glencore simply cannot say whether they are significant or not – they have not seen them.

If one stands back, there is not even a safe basis for Glencore’s speculation. First, there is no basis to assume that the Swiss investigation and penalty order were based on exactly the same evidence as that before the Dutch investigators. Secondly, there is no basis to assume that the Dutch Investigation was limited only to reviewing documents provided by Glencore. That, in of itself, seems inherently unlikely and improbable. It is known, for example, that the Dutch investigators attended Mr Glasenberg’s interview by the Swiss OAG, and it seems unlikely that this is all they did.

In such circumstances, the unchallenged evidence is that of Ms Bailes. As she summarises, the Dutch Investigation has “focused on possible bribery of high-ranking officials in the Democratic Republic of the Congo (DRC), to obtain cobalt and copper mining licenses”. I am satisfied that these are central issues in this litigation given that it is Glencore’s case that there was no DRC Corrupt Arrangement and no knowledge of the same. For the reasons she identifies, I consider that the documents are likely to be important and significant in the case.

I would only add that as is clear from the EuroChem case itself, which concerned a single document, an individual document can, in and of itself, be important. I consider this to be particularly so in the context of documents generated by an investigating authority themselves as even at an early stage, this may show the product of “all their own work” and may also deliberately do so whether that be a police report or (as in the context of the Glasenberg Disclosure Restriction Application) a request for mutual legal assistance which will, as will be addressed in relation to that application, by its very nature, be required to contain as detailed a description of the facts as possible, and address the criminalisation of the act in both jurisdictions.

I consider that the likely importance and significance of the FIOD Documents weighs very heavily in the balance (in reality overwhelmingly so given the limited risk of prosecution even if there were, contrary to my findings, a real risk of prosecution).

There are then comity considerations. I consider that these also weigh heavily in the balance and in favour of disclosure at stage 3 (as well at stage 2). This Court can, and should, reasonably expect that considerations of comity will influence the foreign state (here the Netherlands) in deciding whether or not to prosecute Glencore or Mr Glasenberg (see Bank Mellat at [63(vi)]) not least given that the whole purpose of disclosure and inspection is to further the fair trial of English proceedings which are themselves concerned with alleged international bribery and corruption, the prevention of which is no doubt a shared goal in both jurisdictions.

Yet further, and again weighing heavily in the balance and in favour of disclosure, is that this Court can and will craft its Order (including the recitals thereto) in a manner which will reduce, so far as possible, any risk of exposing Glencore or Mr Glasenberg to prosecution, and I am satisfied that an Order in the terms of Annex A hereto (as finalised upon hand down) will further that aim, and is likely to do so.

Equally, I consider that the Confidentiality Club that I will impose, will ensure that the documents are not publicly available, and will go some considerable further way to ensure that disclosure will not impede the ongoing Dutch investigation.

For all the above reasons I consider that undertaking the balancing exercise between (i) the risk of prosecution in the Netherlands (even if such risk is real, in contradistinction to my findings) and (ii) the importance of the documents of which inspection is ordered to the fair disposal of the proceedings (coupled with the comity considerations and the terms of the Order I propose), the later far outweighs the former.

Accordingly, Glencore’s disclosure obligations in the English Proceedings in relation to the FIOD Documents remain, and the Glencore Disclosure Restriction Application is dismissed.