RLC Blog: Business Crime – Further ENRC litigation leads to disclosure ruling by David Claxton

July 3, 2024

On 25 April 2024, the High Court delivered the latest judgment in the decade-long legal battle between the SFO and ENRC Ltd, the once London-listed mining company that was investigated by the SFO for corruption offences.

That investigation was dropped in 2023 with no charges or other civil action brought against either the corporate or any individuals.

The most recent judgment is in the context of a civil claim pursued by ENRC against the SFO and former employees and related to disclosure applications. ENRC had sought disclosure of the contents of the work mobile phone of former SFO Director, Lisa Osofsky. The SFO had advised that this device had been wiped in error and so no content was available for consideration and potential disclosure. In response, ENRC sought an order that the SFO files a witness statement having made enquiries of Ms Osofsky setting out whether she had ever used the device in question to communicate with intermediaries, journalists and other media outlet or anyone in relation to ENRC.

The SFO resisted the application on several grounds which included that there was no substantial reason to suppose that the device contained disclosable documents. The application was governed by PD 12.

The ultimate decision was that the terms of the order sought by the claimant was too prescriptive but that it was entitled to expect the first defendant to provide a reasonably precise description of at least classes of documents which would be expected to be held on that device and which would otherwise have been disclosable in the proceedings.

The interesting point is the application of PD 12 to a mobile device as the judge noted that “a device is not a document or a category of documents within the contemplation of the Practice Direction.” The fact that an order was made may be of wider application in other contexts where a digital device is in issue but the legislative framework is similarly directed to more analogue categories, such as documents.