While trying to controversially obtain billions of dollars from Nigeria through the courts, P&ID had access to Nigeria’s internal documents which it should not have had access to, a British court found.
The court also ruled that the contract and arbitration for which the firm wanted Nigeria’s money was fraudulently obtained.
Robin Knowles, a High Court judge in London, ruled that the 2010 gas contract at the centre of the long-running saga involving Nigeria and Process & Industrial Developments Limited (P&ID) was fraudulent.
The ruling comes after a decade of legal wrangling that put Africa’s largest economy at risk of having to pay $11 billion in compensation.
In 2017, an arbitration tribunal ordered Nigeria to pay $6.6 billion to P&ID following the collapse of a contract between the group and Nigeria’s petroleum ministry. The award increased to $11 billion with interest.
On Monday, Knowles overseeing the appeal at the high court in London said the awards “were obtained by fraud” and “the way in which they were procured was, contrary to public policy”.
Interestingly and beyond the corruption-tainted contract, the judge indicted P&ID for improper retention of Nigeria’s Internal Legal Documents that it had received during the arbitration.
Knowles said P&ID retained the documents (rather than returning them unread) so as to monitor Nigeria’s position and awareness as the arbitration continued.
“This included monitoring whether Nigeria had become aware of the deception being practised by P&ID on the Tribunal and on Nigeria as a party before the Tribunal,” the judge said.
He added that Nigeria’s right to confidential access to legal advice was utterly compromised throughout all or most of the Arbitration. “It is now apparent that through the course of the Arbitration, P&ID was provided with many of Nigeria’s internal legal documents,” the judge said.
Specifically, there was a flow of over 40 of Nigeria’s Internal Legal Documents to P&ID during the period of the arbitration from commencement on 22 August 2012 to Final award on 31 January 2017.
Details of the contents of these internal legal documents were revealed in the 140-page judgement delivered by Mr Knowles on Monday.
Between 2012 and 2017, these materials monitored by P&ID showed that Nigeria had no awareness that its former legal adviser, Grace Taiga, had been bribed when the gas contract came about and that bribery or corrupt payments continued to buy her silence. Ms Taiga was a former legal adviser to Nigeria’s petroleum ministry.
“Indeed they were bribing or making corrupt payments to keep the truth concealed and (through retention of Nigeria’s Internal Legal Documents) monitoring Nigeria’s awareness of the truth,” the judge said.
P&ID argued that its retention of Nigeria’s internal legal documents “did not cause any substantial injustice within section 68, because it had no effect whatsoever on the Awards, irrespective of how or from whom the documents were obtained.”
The judge, however, rejected the argument saying they did not cause substantial injustice because they gave P&ID no relevant advantage in the arbitration but it shows the effect of a dishonest course of conduct.
“The Court will be realistic here about what proof is possible in terms of showing the effect of a dishonest course of conduct. The nature and contents of the documents, and the scale, continuity and circumstances of P&ID’s conduct were such that, in my judgement, Nigeria’s right to confidential access to legal advice was utterly compromised throughout all or most of the Arbitration.”
Nigeria says the internal legal documents with which P&ID was provided in the course of the arbitration were subject to the confidentiality between lawyer and client known as legal professional privilege. This is a privilege recognised in Nigeria and England & Wales.
The judge agreed with Nigeria. He said: “I have reviewed these internal documents and at least some were plainly subject to legal professional privilege: they were confidential to Nigeria and P&ID was not entitled to see them.”
P&ID’s improper retention of Nigeria’s Internal Legal Documents, received at various points during the arbitration, enabled P&ID to track Nigeria’s internal consideration of merits, strategy and settlement during the arbitration, court papers show.
In addition, P&ID’s improper retention of Nigeria’s Internal Legal Documents also allowed it to monitor whether Nigeria had become aware of the fact that the tribunal and Nigeria were being deceived.
In concluding the matter, Knowles said: “I will be referring a copy of this judgement to the Bar Standards Board in the case of Trevor Burke KC and to both the Solicitors Regulation Authority and the Bar Standards Board in the case of Mr Seamus Andrew.
“I trust that these two regulators of the legal profession in England & Wales will consider the professional consequences of the conduct of Burke KC and Andrew (P&ID) lawyers in relation to Nigeria’s Internal Legal Documents.”