On 23 March 2015, in an application to set aside a freezing injunction the Commercial Court (Flaux J) held that a solicitor for the Republic of Djibouti had deliberately misled the court.
The case concerned Mr Boreh, who had been convicted on terrorism charges by the Djibouti Court of Appeals. The conviction was based (inter alia) on the content of certain telephone calls said to have taken place the day after the terrorist attack. Djibouti’s solicitor, Mr Gray, learned that the transcripts of the calls had in fact taken place the day before the terrorist attack. Mr Boreh’s conviction was consequently unsafe. Djibouti sought the extradition of Mr Boreh from UAE and also applied for a freezing injunction against Mr Boreh, which was granted by the Commercial Court.
The facts of the case are complex. In summary, Flaux J held as follows:
- The standard of proof was the civil standard of the balance of probabilities, but where an allegation was made of deliberate misconduct or dishonesty, the court would only conclude that the allegation was made out if there was cogent evidence to that effect (Lord Nicholls of Birkenhead in In re H (Minors)[1996] AC 563).
- The facts of the case showed that Mr Gray had failed to bring the issue of the wrong dates to the court’s attention at the injunction application hearing, in circumstances where he knew of this issue and appreciated its importance for the case, meaning that it would render the conviction unsafe.
- In the context of an application for an injunction such as the present, where the failure to make full disclosure was deliberate and conscious the freezing order could not stand. The misconduct had not been exclusively and solely that of the solicitor; Djibouti had been aware of and agreed with the strategy to conceal the real date of the telephone transcripts from the court.
Boreh v Republic of Djibouti and others [2015] EWHC 769 (Comm), 23 March 2015
