In a strongly-worded judgment delivered last month by a High Court Judge, the Court has dismissed the Republic of Djibouti’s (R) claims against a businessman (B) which involved serious allegations of fraud and dishonesty – Republic of Djibouti and others v Boreh and others. The Judge decided that the proceedings were politically motivated. The substantive decision is fact-specific, but the judgment highlights a number of practical points regarding evidence and strategy, including the following:
- The Judge criticised R’s “scattergun” and “cavalier” approach to the litigation. During trial, R abandoned 13 claims with an alleged value exceeding $35 million, which made it necessary to closely scrutinise the remaining claims and keep the case within its pleaded parameters.
- It was incumbent on R to call its President (P) to give oral evidence at trial, given that contemporaneous documentary evidence was limited, and B’s defence was that P was well aware of and condoned the matters complained of. P’s explanation for not attending the trial was “inadequate and misconceived”. It was appropriate to draw adverse inferences against R for failing to call P, especially since P ultimately controlled the litigation. Where so much depended on oral evidence, witness statements adduced via hearsay notices were, to a large extent, “evidentially worthless”.
- Witness training was to be discouraged. As this case demonstrated, it tended to reflect badly on the witness, who might (through no fault of their own) appear evasive. The careful preparation of R’s witnesses, including their unwillingness to make concessions, was a reason to regard their evidence with “considerable circumspection”, as was their “marked reluctance” to contradict any part of P’s stance.
- R’s official in charge of the litigation had previously been implicated in the concoction of false evidence, which gave the court “no confidence” that R’s evidence was “all genuine and honest”.
Chris Harper is an experienced solicitor and heads up the dispute resolution team in Exeter. If you would like to contact the team, please call 01392 210700 or email drx@stephens-scown.co.uk.