The Kazakhstan mining giant, ERG, formerly ENRC, under investigation by the Serious Fraud Office (SFO) in the UK for more than a decade for alleged corruption in the DRC, has scored a landmark victory against the SFO and law firm Dechert in the Commercial Court in London.
In a 400-page judgment handed down by Mr Justice Waksman on 16 May 2022, Waksman made unprecedented findings of “extraordinary and almost unimaginable misconduct” by ENRC’s former solicitor and Dechert partner at the time, Neil Gerrard and ‘bad faith opportunism” by three former SFO officers, including the then Director, Richard Alderman.
ENRC brought proceedings against Dechert, Gerrard, and the SFO and alleged that Gerrard worked with the SFO and had a series of secret and clandestine meetings and communications between themselves to advance the investigations of the SFO against ENRC. During this period, Dechert billed ENRC nearly R260 000 000 in legal fees. Although the SFO, Dechert and Gerrard denied wrongdoing, the Court found that Gerrard repeatedly and deliberately acted unlawfully and engaged in “appalling and egregious conduct’ against the interest of ENRC.
The Court also found that three former SFO officers, including Alderman, acted in bad faith and actively induced Gerrard’s breaches. Gerrard, so the Court found, leaked confidential and privileged material to the press and consistently gave false advice to ENRC in order to expand Dechert’s scope of work.
The court also found that Gerrard and two SFO witnesses, including the former SFO interim Director, Mark Thomson, lied under oath in an attempt to cover up wrongdoing. The judgment comes days before the conclusion of an independent forensic review into the SFO, launched by the Attorney General after the UK Court of Appeal overturned two bribery convictions the SFO had obtained previously against Paul Bond and Ziad Akle about their conduct in obtaining oil contracts in the Middle East and Africa.
The conduct of the SFO in Africa has also not been unblemished. They were unsuccessful in obtaining mutual legal assistance from the South African authorities after they made selected and less-than-frank disclosures to the Ministry of Justice and Constitutional Development about their investigations into the Arms Deal.
The Star also reported on 24 June 2021 that law enforcement agencies in the DRC were investigating the conduct of officials of the SFO in the DRC, posing as United Nations officials, wearing United Nations attire and driving official UN convoys, who unlawfully attempted to interview potential witnesses in the same investigation into ENRC, without using the official and well-legislated process of applying formally for mutual legal assistance.
Local attorney Ulrich Roux was shocked when he read the judgment. "In South Africa, this conduct, if exposed, would effectively stop any prosecution. The NPA and courts wouldn't entertain a tainted investigation where a suspect's own lawyer would work against him to assist the authorities. It would likely result in the prosecution of the wrongdoers if a case of Defeating the ends of Justice could be made. One was also to remember that England has no Constitution like we do, where citizens' rights are protected from abuse by law."