Sunday 2 November 2014

Fancy that - ENRC wins latest tussle with Sir Paul Judge - part 2

My court mole has been back in touch after having a bit of time to look over Mrs Justice Swift's judgement on whether the row between Sir Paul Judge and Eurasian Natural Resources Corporation should proceed to trial.

For readers that don't recall, Sir Paul was trying to get the courts to strike out some claims made against him for allegedly leaking board level information at ENRC, which was once listed on the FTSE 100 index. Here is a link to an Evening Standard piece on the topic:

However, last week Mrs Justice Swift refused to strike out the ENRC claims and my mole has sent in some very interesting quotes from her judgement (see below).

'During the period from September to November 2011 a somewhat curious incident occurred.  The defendant had five private meetings with an individual who introduced himself to the defendant as a ‘journalist’.  During those meetings, the defendant discussed various issues relating to the claimant.  The defendant has admitted, in his Amended Rejoinder and Reply to the Counterclaim, that some of the information he gave to the ‘journalist’ was confidential to the claimant.  It is clear that much of that information would, if published, have been potentially damaging to the claimant.  Taken at their face value, some of the defendant’s words during the meetings appeared to be strong encouragement to the ‘journalist’ to persuade the media to publish the material he had provided.

'As I have already made clear, it is not my function to make decisions as to the factual issues.  I must consider the merits only insofar as it is necessary to assess whether or not there is a real prospect of success.  Having done that exercise, I do not accept that the evidence relating to the claimant’s allegation that the defendant was responsible for the ‘leak’ of 5 October 2012 and therefore acted in breach of confidence is so speculative that I can conclude that it has no reasonable prospect of succeeding at trial.  It is clear from the email itself that he felt strongly about the way the proposed appointment was being managed and it could be inferred from his previous conversations with the ‘journalist’ that he did not favour the proposed candidate and possibly even that he was not adverse to letting the press know his views about company affairs.

'As to those conversations, it is not for me to decide whether the defendant’s intentions in holding the meetings with the ‘journalist’ were, as he claimed, to attempt to draw attention within the claimant organisation to the undesirable practices that he believed were going on, or whether he was tricked into disclosing his views about the claimant to an individual who he believed was a genuine journalist and who he hoped would publish those views in the press.  In either event, it is plain from his admissions (and the transcripts of the conversations) that he disclosed a considerable amount of confidential material, some of it potentially harmful to the claimant if published.  He claims in his Rejoinder and Reply to Defence to Counterclaim that the conversations took place on a “not for publication” basis but it is in my view arguable that this claim is inconsistent with some of the words in the transcript: e.g. “What access do you have to news channels, media, etc, that could break such a story?”  Furthermore, I consider it arguable also that, having heard the evidence, a judge might conclude that the defendant had not been candid in his email to a fellow Director about the conversations he had had in 2011.’    

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