Claim No. CL-2016-000195

IN THE fflGH COURT OF JUSTICE
QUEEN’S BENCH DIVISIQN
COMMERCIAL COURT
BETWEEN:

(1) FEME BANK LTD
(2) MR AYOUB-FARID MICHEL SAAB
(3) MR FADI MICHEL SAAB
Claimants
- and (1) DANGATE CONSULTING LTD
(2) BARRINGTON LONDON LIMITED
(3) MR NIGEL BROWN
(4) MR ALEC LEIGHTON
Defendants

PARTICULARS OF CLAIM

A.

The Parties

1.

FEME Bank Ltd (“the First Claimant”) is and was at all material times an
international bank incorporated under the laws of the Republic of Tanzania. The
First Claimant has a branch in Cyprus (“the Branch”) through which it carried out
a substantial proportion of its business until 2015.

2.

Mr Ayoub-Farid Michel Saab (“the Second Claimant”) and Mr Fadi Michel Saab
(“the Third Claimant”) are between them the ultimate owners of 100% of the
share capital of the First Claimant.

3.

Mr Nigel Brown (“the Third Defendant”) and Mr Alec Leighton (“the Fourth
Defendant”) are private investigators who specialise in financial and regulatory
investigations.
Dangate Consulting Ltd (“the First Defendant”) and Barrington London Limited
(“the Second Defendant”) are the companies registered in England and Wales
through which the Third and Fourth Defendants provided services to the Claimants
at all material times.

1

 5.

The Third Defendant is and was at all material times the sole director of the First
Defendant and a director of the Second Defendant. The Fourth Defendant is and
was at all material times an employee of, or engaged as a consultant to, the First
and/or Second Defendants.

B.

Engagement of the Defendants

The FinCEN Notice
6.

On 15 July 2014, the US Treasury’s Financial Crimes Investigation Network
(“FinCEN”) issued a Notice of Finding which stated that the Director of FinCEN
had found that there were reasonable grounds for concluding that the First Claimant,
including all its branches, subsidiaries and offices, was an institution of “primary
money laundering concern’". The Notice of Finding also referred to the fact that
FinCEN was proposing to impose a specific regulatory measure on the First
Claimant pursuant to section 311 of the US Patriot Act 2001, known as the ‘Fifth
Special Measure’, to prevent the Claimant from having any further access to the US
banking system.

7.

On 18 July 2014, the Central Bank of Cyprus (“the CBC”) took the decision to
assume the administration of the Branch in the light of FinCEN’s Notice of Finding.

8.

On 21 July 2014, the Resolution Authority of the CBC placed the Branch under the
administrative control of a Special Administrator with a view to selling the assets of
the Branch pursuant to resolution decree number 356/14.

9.

On around 22 July 2014:
9.1.

FinCEN issued a Notice of Proposed Rulemaking against the First
Claimant which confirmed that FinCEN was proposing to impose the
‘Fifth Special Measure’ on the First Claimant to prevent it from having
any further access to the US banking system (“the Notice”) and stated
that any written comments on the Notice were required to be submitted
within 60 days.

9.2.

The CBC appointed Mr Dinos Christofides as the Special Administrator
of the Branch.

10.

On or around 28 April 2015, Mr Andrew Andronikou was appointed by the CBC as
an additional Special Administrator of the Branch.
2

 11.

Mr Andronikou became the sole Special Administrator of the Branch on around 15
May 2015 when Mr Christofides resigned. Mr Andronikou’s appointment as Special
Administrator came to an end on 31 December 2015. On or around 11 January
2016, Mr Chris lacovides was appointed by the CBC as the Special Administrator
of the Branch in his place.

The Oral Contract
12.

In around mid to late July 2014, the Claimants (including Mr Charles Charalambous
(senior Vice President of the First Claimant) and/or Mr Michael Saab (Vice
President of the First Claimant) on behalf of the First Claimant) exchanged a
number of emails and had a number of meetings and/or telephone conversations
with the Third and/or Fourth Defendants regarding the allegations made by FinCEN
and the possibility of the Third and Fourth Defendants being engaged by the
Claimants to carry out an internal investigation into the affairs of the Branch in
order to assist the First Claimant to respond to the allegations.

13.

Shortly afterwards, the First and/or Second and/or Third Claimants orally engaged
the First and/or Second and/or Third and/or Fourth Defendants to conduct an
independent internal investigation into the affairs of the Branch and the allegations
outlined in the FinCEN Notice with a view to assisting the Claimants in responding
to those allegations (“the Engagement”).

14.

It was a term of the parties’ oral contract, to be implied as a matter of necessity
and/or in order to give business efficacy to the contract and/or in order to reflect the
obvious but unexpressed intentions of the parties, that the Defendants would:
14.1.

Not disclose any confidential information relating to the Engagement,
including but not limited to any documents, data or other material
obtained or produced by them in the course of their engagement which
contained any confidential information relating to the affairs of any of the
Claimants or any of the First Claimant’s customers (“confidential
information”) to any third party or use it for their own benefit during the
course of their Engagement, or after their Engagement, without the
consent of the Claimants;

14.2.

Ensure that anyone working on the Engagement would likewise not
disclose any confidential information to any third party without the
Claimants’ consent;

3

 14.3.

Return all confidential information in their possession to the Claimants at
the request of any of the Claimants;

14.4.

Immediately notify the Claimants of any unauthorised disclosure made by
them; and/or

14.5.

Immediately notify the Claimants of any request made of them by a third
party to disclose confidential information.

15.

In support of the matters alleged in paragraphs 12 to 14 above, the Claimants will
rely on (amongst other things) the fact that the First Defendant and Second
Defendant have each brought separate claims against the Second and Third
Claimants and the Branch (although the claims against the Branch have recently
been discontinued following an alleged settlement with the Branch) before the
District Court of Nicosia, Cyprus, for the recovery of fees allegedly earned by the
First and Second Defendants during the course of their Engagement (“the Cypriot
Proceedings”). The claim brought by the First Defendant (“the Dangate Claim”)
bears the claim number 1462/2015 and seeks recovery of allegedly outstanding fees
of £229,077.55. The claim brought by the Second Defendant (“the Barrington
Claim”) bears the claim number 1511/2015 and seeks recovery of allegedly
outstanding fees of £12,903.50.

16.

In both the Dangate Claim and Barrington Claim, the First and Second Defendants
positively aver in their respective Statements of Claim that:
16.1.

In around the middle of July 2014, an oral and/or written agreement was
concluded between the defendants to the Cypriot proceedings (the Branch,
the Second Claimant and/or the Third Claimant) and the claimant in each
of the Cypriot Proceedings (the First Defendant in the Dangate Claim and
the Second Defendant in the Barrington Claim) under which the First and
Second Defendants were '"tasked with investigating [the First Claimant’s]
competency and experience in the banking sector'" in connection with
FinCEN’s Notice of Findings (paragraphs 5 and 6); and

16.2.

It was a term of that agreement that “Any findings and/or documents
which may be revealed during the provision of the services by [the First
and Second Defendants] by virtue of the Agreement are confidential and
shall not be revealed to a third person" (paragraph 6).

4

 17.

Further or alternatively, the Claimants will also rely on the fact that, in a witness
statement dated 13 October 2016 served by the Third Defendant on behalf of all of
the Defendants in support of an application to challenge the Court’s jurisdiction in
this case, the Third Defendant stated that:
17.1.

In July 2014, following a meeting in London Mr Charalambous and/or Mr
Michael Saab, the Fourth Defendant was instructed to undertake
investigation work in relation to FinCEN’s Notice of Findings (paragraph
43);

17.2.

The Fourth Defendant brought in other investigators to work on the
investigation with him, including the Third Defendant who was and
remains the sole director of the First Defendant (paragraph 43);

17.3.

At a further meeting held in Cyprus on 9 August 2014 between the Third
and Fourth Defendants, the Second and Third Claimants and staff
members of the First Claimant, it was decided that the Fourth Defendant
and his team would undertake an independent investigation into the
allegations made by FinCEN (paragraph 45);

17.4.

The Fourth Defendant initially issued a proposal document and invoices
totalling £100,000 to the Branch, which were rejected by the Special
Administrator on the grounds that he had not authorised the Defendants’
engagement by the Branch. In the light of this, the Second and Third
Claimants agreed with the Third and Fourth Defendants that the invoices
should be re-issued by the First Defendant, and that they would be paid by
the Second and Third Claimants (paragraphs 46 and 48).

18.

If and to the extent necessary, the Claimants reserve the right to rely on any other
facts and matters contained in the statements of claim in the Cypriot Proceedings or
in the Third Defendants’ witness statement referred to above in support of their
claim that the parties entered into an oral contract in respect of the Engagement in
July 2014 under which the Defendants owed them the confidentiality obligations
pleaded at paragraph 14 above.

19.

As pleaded further below, the express terms on which the Defendants were engaged
by the Claimants were subsequently formalised or agreed in a letter of engagement
dated 30 September 2014 prepared by the Second and Third Claimant’s lawyers and
signed by the Third Defendant on 1 October 2014 (“the Quinn Emanuel
Engagement Letter”) and/or a letter of engagement dated 18 November 2014

5

 prepared by the First Claimant’s lawyers (“the Hogan Lovells Engagement
Letter”). However, if and to the extent that the terms of those Engagement Letters
are found not to be binding on any of the Defendants, the Claimants will contend
that the Defendants are and were at all material times nonetheless bound by terms of
the oral contract pleaded above.
The Quinn Emanuel Engagement Letter
20.

In or about September 2014, the law firm Quinn Emanuel Urquhart & Sullivan LLP
(Washington) was engaged by the Second and Third Claimants to act for them in
connection with the FinCEN allegations. Shortly afterwards, Quinn Emanuel
prepared an engagement letter to formalise the terms of the Defendants’
engagement by the Second and Third Claimants.

21.

As pleaded above, the Quinn Emanuel Engagement Letter dated 30 September 2014
was signed by the Third Defendant on 1 October 2014, on his own behalf and on
behalf of the First Defendant.

22.

The terms of the Quinn Emanuel Engagement Letter were expressly said to apply to
any persons affiliated with the First Defendant who worked on the Engagement. In
those circumstances the Claimants will say that, objectively understood, the First
and/or Third Defendants agreed to the terms of the Quinn Emanuel Engagement
Letter on behalf of the other Defendants as well as on their own behalf

23.

Further or alternatively, even if the Second and/or Third and Fourth Defendants
were not bound by the terms of the Quinn Emanuel Engagement Letter as a result of
the First and/or Third Defendants’ agreement to its terms, the Second and/or Third
and/or Fourth Defendants subsequently became bound by the terms of the Letter
because:
23.1.

The Second and/or Third and/or Fourth Defendants worked on the
Engagement at the direction or behest or instruction of the First Defendant
and were therefore “affiliated persons” (as defined) to whom the terms of
the Quinn Emanuel Engagement Letter applied;

23.2.

As pleaded above, the Third Defendant signed the Quinn Emanuel
Engagement Letter and was therefore aware of its terms;

23.3.

The Quinn Emanuel Engagement Letter expressly required the First
and/or Third Defendant to ""communicate the restrictions on the disclosure

6

 of confidential information contained in this Agreement to any and all
affiliated persons”. It is therefore to be inferred that the Second and
Fourth Defendants were made aware of the terms of the Letter by the First
and/or Third Defendants; and
23.4.

The Second and/or Third and/or Fourth Defendants subsequently provided
or continued to provide professional investigation services to the
Claimants for remuneration as part of the Engagement in the full
knowledge of the existence and terms of the Quinn Emanuel Engagement
Letter, and thereby agreed by their conduct to be bound by the terms of
the Quinn Emanuel Engagement Letter.

24.

Quinn Emanuel were at all material times acting as the legal advisors of the Second
and/or Third Claimants. Quinn Emanuel issued the engagement letter and retained
the services of the Defendants as agent of the Second and/or Third Claimants.

25.

The Quinn Emanuel Engagement Letter provides, in relevant part, as follows:
“Dangate agrees not to disclose any confidential information
related to the Engagement to any third party without Quinn
Emanuel’s consent. Confidential information includes any of the
following related to the Engagement: (1) all communications
between Dangate, Messrs. Ayoub-Farid and Fadi Saab, and Quinn
Emanuel; (2) all internal communications at Dangate; (3) all
information provided to Dangate by Messrs. Ayoub-Farid and Fadi
Saab and Quinn Emanuel and anyone working with or at their
direction; and (4) all reports, analyses, work papers and other
records created by Dangate. The obligation to maintain the
confidentiality of confidential information shall survive the
completion of Dangate’s work on the Engagement. The terms of
this letter apply to any persons affiliated with Dangate’s
investigative services who work on the Engagement, including any
independent contractors (“affiliated persons”). You agree to
communicate the restrictions on the disclosure of confidential
information contained in this Agreement to any and all affiliated
persons.
All confidential information maintained by Dangate related to this
Engagement constitutes property of Quinn Emanuel. Dangate
agrees to return all confidential information to Quinn Emanuel at
its request.
[••■]

7

 Dangate agrees that it shall immediately notify Quinn Emanuel of
(1) the unauthorised disclosure of any confidential information in
its possession; and (2) any request by anyone to obtain confidential
information from Dangate. In the event of any such request,
Dangate further agrees to... (b) decline production of confidential
information pending resolution of any motion for protective order
or similar motions filed on behalf of Messrs. Ayoub-Farid and
Fadi Saab, unless specifically authorized in writing by Quinn
Emanuel to disclose the requested confidential information...”

26.

Accordingly, by agreeing to the terms of the Quinn Emanuel Engagement Letter,
the First and/or Second and/or Third and/or Fourth Defendants agreed:
26.1.

Not to disclose any confidential information (as defined) relating to the
Engagement to any third party without Quinn Emanuel’s consent;

26.2.

To communicate the restrictions on the disclosure of confidential
information contained in the Quinn Emanuel Engagement Letter to any
persons affiliated with the First Defendant’s investigative services who
worked on the Engagement, including any independent contractors
engaged by the First Defendant for that purpose;

26.3.

To return all confidential information in their possession to Quinn
Emanuel at the request of Quinn Emanuel;

26.4.

To immediately notify Quinn Emanuel of any unauthorised disclosure
made by them, and of any request made of them by any third party to
disclose confidential information; and/or

26.5.

In the event of any such request being made, to decline production of any
confidential infonnation pending the determination of any motions filed to
the First and/or Second Claimants objecting to the disclosure of that
information, unless the disclosure of the relevant information was
specifically authorised in writing by Quinn Emanuel.

27.

In both the Dangate Claim and Barrington Claim referred to at paragraphs 15-16
above, the First and Second Defendants’ Statements of Claim positively aver that on
or about 1 October 2014, the First and Second Defendants "^signed a confidentiality
agreement with the law offices of Quinn Emanuel... in relation to the services
provided to the Defendants" pursuant to the July 2014 agreement referred to above.
They also aver that the confidentiality agreement provided inter alia that:

8

 27.1.

"‘‘Any finding and/or documents which may be revealed during the course
of the engagement shall be confidential and shall not be notified to third
persons”-, and

21.1.

""All the confidential information which came up during the course of the
engagement are the property of the law office Quinn Emanuel”.

28.

If and to the extent required, the Claimants will rely on those Statements of Claim in
support of their contention that the First and Second Defendants, at least, were
bound by the confidentiality obligations contained in the Quinn Emanuel
Engagement Letter as set out at paragraphs 25 and 26 above.

The Hogan Lovells Engagement Letter
29.

Further or alternatively, in around mid-November 2014 Hogan Lovells, who were
acting for the First Claimant in connection with the FinCEN allegations, prepared a
second engagement letter to formalise the terms of the Defendants’ engagement by
the First Claimant. By that time, the Third Defendant had formed a new company,
the Second Defendant, through which the investigative services previously provided
through the First Defendant were to be provided in the future. As a consequence, the
Hogan Lovells Engagement Letter stated that its purpose was to memorialise the
terms and conditions of the Second and Third Defendants’, rather than the First and
Third Defendants’, engagement by the First Claimant.

30.

Hogan Lovells were at all material times acting as the legal advisors of the First
Claimant and Hogan Lovells issued the engagement letter, and retained the services
of the Defendants, as agent of the First Claimant.

31.

The Hogan Lovells Engagement Letter dated 18 November 2014 provides, in
relevant part, as follows:
“This letter (“Letter Agreement”) memorializes the terms and
conditions of the engagement of Mr Nigel Brown and Barrington
London Ltd. (“Barrington”) by the law firm of Hogan Lovells US
LLP (“HL” or the “Firm”)... Mr Brown and Barrington shall
provide consulting and investigative services in connection with
the below-referenced matter for the Firm on behalf of its client,
FBME Bank Ltd. (“FBME”).
[...]
7. CONFIDENTIALITY. ... The sole or dominant purpose of your
investigation will be to support HL in its provision of legal advice
to FBME in this Matter. The Services that you perform for the
9

 Firm on FBME’s behalf is done at the direction of the Firm and
may be used in judicial or other proceedings. On that basis, the
Services and our communications are confidential and may be
protected by applicable privileges, including the attorney-client
privilege and work product doctrine. You should not take any steps
that would in any way endanger the confidential nature of the
Services or the protections of applicable privileges, unless HL
expressly directs you to do so. If at any time, you are in doubt as to
how to proceed in this manner, you should contact us immediately.
The affairs of FBME are confidential. You are required to ensure
that all confidential information that comes into your knowledge in
the course of your work is kept confidential both during the term
of and at all times after termination of your appointment. Such
information must not be discussed or disclosed, either in writing or
orally, to third parties, except members of Barrington working on
this assignment “Confidential information” shall mean any nonany non-public information of the other Party that is designated as
confidential, or that the receiving Party knew or reasonably should
have known was confidential because it derives independent value
from not being generally known to the public...
The Party receiving Confidential Information will not at any time
disclose to any person or use for its own benefit or the benefit of
anyone. Confidential Information of the other Party without the
prior written consent of said Party...
Upon termination of the Services or this Agreement, the recipient
of Confidential Information shall promptly deliver to the other
Party or destroy any and all such information in its possession or
under its control, and any copies made thereof which the recipient
of said information may have made, except as the Parties by prior
express written permission have agreed to retain. Neither Party
shall be liable for disclosure of Confidential Information if made in
response to a valid order of a court or authorised agency of
government; provided that, if available, five (5) days’ notice first
be given to the other Party so a protective order, if appropriate,
may be sought by such Party. The Parties acknowledge and agree
that a breach of its obligations under this section may cause harm
to the other Party for which monetary damages are not a sufficient
remedy ...”

32.

The Hogan Lovells Engagement Letter was provided to the Defendants in draft on
or around 18 November 2014. In two subsequent emails sent by the Third
Defendant to a partner at Hogan Lovells on 8 and 15 December 2014 (the first of
which he was also copied to the Second Defendant), the Third Defendant stated that
the terms of the Engagement Letter were acceptable and that he was content to sign
it, but that it also needed to be signed by Second and/or Third Claimants to secure
the payment by them of the Defendants’ fees.

10

 33.

The Claimants do not presently know whether any work was carried out by any of
the Defendants for the First Claimant following the provision of the Hogan Lovells
Engagement Letter to the Defendants and/or the Third Defendant’s confinnation
that its terms were acceptable in the emails referred to at paragraph 32 above.
However, if any of the Defendants did carry out any work for the First Claimant or
Hogan Lovells thereafter, the Claimants shall say that the Defendants agreed by
their conduct to be bound by the terms of that engagement letter, by carrying out
that work in full knowledge of the existence and terms of the Engagement Letter.

34.

For the avoidance of doubt, even if the Hogan Lovells Engagement Letter is not
binding on the Defendants (or any of them), the Claimants will say that the
Defendants nonetheless owed (and still owe) the First Claimant the duties pleaded at
paragraph 14 above pursuant to the oral contract referred to at paragraphs 12 - 14,
and/or like duties at common law and/or in equity as pleaded below.

The Defendants’ Duties of Confidentiality at Common Law and/or Equity
35.

Further or alternatively, the nature of the Defendants’ Engagement, the work
undertaken by them and the information and material to which they were privy
during the course of their Engagement, were such as to warrant the imposition of
duties of confidentiality on all of the Defendants at common law and/or in equity, in
that:
35.1.

As pleaded above, the back-drop to the Defendants’ Engagement was that
the First Claimant had been the subject of serious allegations by FinCEN
relating to the affairs of the Branch and some of its customers. The
Defendants were engaged by the Claimants to carry out a confidential
internal investigation into those allegations, to assist the Claimants and
their lawyers to respond to FinCEN’s allegations. In those circumstances,
any reasonable person in the Defendants’ position would have understood
that the matters which they were being asked to investigate were highly
sensitive, and that their work was likely to involve investigating not only
the Branch’s own internal affairs, but also the affairs of some of the First
Claimant’s customers, to whom the First Claimant owed duties of
confidentiality;

35.2.

The nature of the work that the Defendants were engaged to carry out was
therefore such that any reasonable person would objectively have
regarded it as involving a duty of confidentiality. As experienced private
11

 investigators who had specialised in financial and regulatory matters for
many years, the Third and Fourth Defendants would readily have
appreciated this;
35.3.

Further, much of the information and documents to which the Defendants
were privy and/or obtained during the course of their Engagement related
to the confidential affairs of the Branch and/or the private and confidential
affairs of its customers, as the Defendants must have or ought to have
known;

35.4.

Any reasonable person in the position of the Defendants would have
realised that the information and documents to which they became privy
and/or which they obtained during the course of their investigation were
confidential and/or were made available to them in confidence.

36.

In these circumstances, each of the Defendants owed each of the Claimants
corresponding duties of confidentiality at common law and/or in equity to the
contractual duties pleaded at paragraph 14 above.

37.

The obligations of confidentiality referred to at paragraphs 14, 25-26, 31 and 35-36
above are referred to hereafter as “the Confidentiality Obligations”.

C,

Breach of the Confidentiality Obligations

38.

From around July 2014 until late 2014 the Defendants and their employees and/or
contractors performed the Engagement, which involved inter alia:
38.1.

Numerous discussions and meetings between the Third and Fourth
Defendants (together with another private investigator who was employed
by or acted as consultant to the First and/or Second Defendants, Mr Keith
Pedder),

the Claimants, various directors and employees of the First

Claimant, and the Claimants’ legal representatives, during which
confidential information and/or documentation was disclosed to the
Defendants;
38.2.

The exchange of numerous emails with the Claimants and/or various
directors and employees of the First Claimant and/or the Claimants’ legal
advisers, during which confidential information and/or documentation was
disclosed to the Defendants;

12

 38.3.

The Claimants otherwise granting the Defendants access to a significant
amount of confidential information and documentation with a view to the
Defendants investigating the allegations in the Notice and assisting the
Claimants’ legal counsel in formulating a response thereto; and

38.4.

The Defendants producing a “formal investigation plan” for the Claimants
during the course of the Engagement which purported to outline the lines
of enquiry they were pursuing and the lines of enquiry they intended to
pursue.

39.

In breach of the Confidentiality Obligations owed to the Claimants, the Defendants
or any one or more of them have disclosed a substantial amount of confidential
information and/or documentation obtained during the course of their Engagement
to third parties, including FinCEN, the CBC and other Cypriot public authorities,
and/or have failed to deliver up to the Claimants any confidential information and/or
documentation which remains in their possession despite numerous requests to do
so from the Claimants’ lawyers. In particular:
PARTICULARS
39.1.

In or around August 2015, the Third Defendant provided to FinCEN a 46page affidavit headed ""Central Bank of Cyprus: FEME Bank Ltd v FEME
Card Services Ltd\ The affidavit disclosed, in considerable detail,
information about various meetings and discussions that took place
between the Claimants and the Defendants as part of and in relation to the
Engagement, and about certain matters which were investigated by the
Defendants during the course of their Engagement. The Claimants
understand that this affidavit was subsequently provided by one or more
of the Defendants to the CBC and/or the Police of the Republic of Cyprus.

39.2.

In or around August 2015, the Fourth Defendant also provided to FinCEN
a 139-page affidavit dated 7 July 2015 and headed ""Central Bank of
Cyprus: FEME Bank Ltd v FEME Card Services Ltd\ The affidavit
disclosed, in considerable detail, information about the Defendants’
investigations, and various about meetings and discussions that took place
between the Claimants and the Defendants as part of and in relation to the
Engagement. The body of the affidavit also referred to 122 exhibits.
Those exhibits include, inter alia, emails, meeting notes, minutes,
timelines and other correspondence relating to the Defendants’ internal
13

 investigation. The Claimants understand that this affidavit -was also
subsequently provided by one or more of the Defendants to the CBC
and/or the Police of the Republic of Cyprus.
39.3.

On or around 18 January 2016, the First Defendant provided to FinCEN a
document of that date which purports to describe the “warn highlights of
evidence against FEME bank, the shareholders, subsidiaries & staff' of
their investigations (“the Dangate Disclosure”)- The document appears
to have been prepared by the Third and Fourth Defendants and contains a
series of bullet points making various allegations of wrongdoing against
the Claimants allegedly identified by the Defendants during their
investigations. It also confirms that the Defendants provided the affidavits
referred to above to the CBC, and states that the Defendants also provided
the CBC with a digital copy of their emails and related computer records.

39.4.

In a letter dated 21 April 2016, the Defendants’ Cypriot Lawyers (“ID
Law”) confirmed that the Defendants had provided confidential
information and/or documents to the CBC, to the Cypriot Unit for
Combating Money Laundering (“MOKAS”) and to the office of the
Attorney General of the Republic of Cyprus. However, no details were
provided as to what confidential information and/or documentation was
disclosed, or when it was disclosed.

39.5.

None of the above disclosures was authorised by any of the Claimants or
by Quinn Emanuel or Hogan Lovells on their behalf. Indeed, the
Claimants and their lawyers first became aware of the fact that the
Defendants had disclosed confidential information relating to their
Engagement to FinCEN and the Cypriot authorities in or about February
2015, despite having written to the Defendants and their lawyers on
several occasions in 2015 asking for confirmation that no such
confidential information had been or would be disclosed to any third
parties without the Claimants’ consent.

39.6.

Further, the Defendants failed to notify the Claimants before making any
of the disclosures referred to at paragraphs 39.1 - 39.4 above, and thereby
deprived the Claimants from taking any steps to prevent the Defendants
from disclosing that confidential information and documentation.

 39.7.

The Defendants have failed to deliver up to the Claimants, or destroy, the
confidential information and documentation retained by them after the
termination of their Engagement, despite repeated requests from the
Claimants’ solicitors to do so on, for example, 8 April 2015, 13 April
2015, 24 April 2015 and 18 February 2016. The Defendants are therefore
still in possession of confidential documents.

39.8.

The Claimants reserve the right to add further particulars of the
Defendants’ breach of their Confidentiality Obligations after disclosure
and/or the service of witness statements.

40.

In support of the matters alleged at paragraph 39 above, the Claimants will rely on
the following admissions that the Defendants have disclosed confidential
information to third parties. In particular:
40.1.

On 3 February 2016, ID Law wrote to FinCEN and:
a.

Acknowledged therein that the Defendants or any one of them had
uploaded and/or posted the Dangate Disclosure to a US government
website (www.regulations.gov) on 18 January 2016; and

b. Encouraged FinCEN to make the Dangate Disclosure publicly
accessible by requesting confirmation that the disclosure would be
publicly posted online on FinCEN’s website.
40.2.

On 24 February 2016, ID Law wrote to FinCEN in terms that
acknowledged the Defendants

had previously given confidential

information to FinCEN.
40.3.

As pleaded above, on 21 April 2016, ID Law wrote to Quinn Emanuel and
acknowledged that the Defendants or any one or more of them had
disclosed confidential information and/or documents obtained by them
during the course of their Engagement to the District Court of Nicosia, the
CBC, MOKAS, the office of the Attorney General of the Republic of
Cyprus and the Police of the Republic of Cyprus.

40.4.

In the witness statement referred to at paragraph 17 above, the Third
Defendant on behalf of all the Defendants admitted that:
a.

The Third

and

Fourth Defendants have provided evidence,

information and intelligence obtained during the course of their
15

 Engagement to law enforcement agencies and regulatory bodies
(paragraphs 6 and 7(i));
b. The Third and Fourth Defendants have provided sworn written
witness testimony to the Courts of Cyprus, and to law enforcement
agencies and regulatory bodies, that contains confidential information
obtained during the course of their Engagement (paragraph 19);
c.

The Third and Fourth Defendants have provided affidavits containing
confidential information and other confidential documents to FinCEN
(paragraphs 20 and 84-85);

d. The Defendants provided the Dangate Disclosure to FinCEN
(paragraph 21); and
e.

The Defendants made disclosures of confidential information and/or
documentation to the CBC and other agencies (paragraph 79).

41.

The Third Defendant has also acknowledged, in the witness statement referred to at
paragraph 17 above (at paragraph 98), that the Defendants are still in possession of
confidential information and/or documents relating to their Engagement, contrary to
their Confidentiality Obligations and the numerous requests for delivery up which
have been by the Claimants’ lawyers.

D.

The Payment of €100,000 to the Defendants

42.

In May 2015 the Special Administrator, Mr Andronikou, made a payment of
€125,000 from the First Claimant’s minimum reserve account at the CBC to his
own personal bank account. The Special Administrator subsequently transferred
€100,000 of that sum from his personal bank account to the Defendants.

43.

On or around 10 December 2015, Mr Andronikou provided to the District Court of
Nicosia an affidavit in response to an ex parte application brought by the First
Claimant before that court on 24 November 2015, in claim number 5838/2015
between the First Claimant (as claimant) and the CBC, its Resolution Authority, Mr
Christofides and Mr Andronikou (as defendants). At paragraph 47 of that affidavit,
Mr Andronikou stated that the €100,000 payment referred to above had been made
in order to settle the Barrington Claim brought by Second Defendant.

44.

In the witness statement referred to at paragraph 17 above, the Third Defendant on
behalf of all the Defendants stated that:
16

 The Special Administrator made the €100,000 payment to the Defendants
in exchange for the First and Second Defendants agreeing to withdraw
their claims against the Branch before the District Court of Nicosia in both
the Dangate and Barrington Claims (paragraph 92); and
44.2.

A settlement agreement had been concluded between the Branch and the
Defendants to that effect (paragraph 92).

45.

However, it was not until November and December 2016 (i.e. approximately 18
months after the €100,000 payment was made to the Defendants) that the Dangate
and Barrington Claims were withdrawn against the Branch.

46.

Further, despite repeated requests from the Claimants’ lawyers for an explanation of
what the payment relates to and supporting evidence (including in letters from
Quinn Emanuel to ID Law dated 18 February 2016, 1 April 2016 and 12 May
2016), the Claimants have still not received any documentary evidence of the
alleged settlement agreement pursuant to which the €100,000 was allegedly made,
or any explanation as to why the Dangate and Barrington Claims were only
withdrawn around 18 months after the alleged settlement of those claims.

47.

Accordingly, the circumstances in which the Defendants received the €100,000
payment from the Special Administrator of the Branch remain unclear despite the
Claimants’ best efforts to obtain further information from the Defendants.

48.

If it transpires that the payment was in fact made to the Defendants, or any one or
more of them, in connection with the Defendants’ unauthorised provision of
confidential information or documentation to the CBC, FinCEN and/or any other
Cypriot authority and/or any other third party:
48.1.

The relevant Defendant or Defendants will have profited from the use of
confidential information and documentation obtained during their
Engagement for their own benefit, in further breach of their duties of
confidence to the Claimants; and

48.2.

The Claimants are entitled to an account of any profits made by each
Defendant as a result of any unauthorised disclosure or use of any
confidential information or documentation obtained during the course of
their Engagement.

17

 E.

Relief

49.

By virtue of the Defendants having breached the Confidentiality Obligations owed
by them to the Claimants, the Claimants are entitled to and seek the following relief:
49.1.

A declaration that the Defendants, or any one or more of them, breached
the Confidentiality Obligations owed to the Claimants, or any one or more
of them;

49.2.

An order prohibiting the Defendants, or any one or more of them, from
making any further unauthorised disclosures of confidential information
or documentation that remain in their possession;

49.3.

An order requiring the Defendants to deliver up any and all documents
containing confidential information obtained or produced by them during
the course of their Engagement; and/or

49.4.

An order requiring each of the Defendants to provide details of any and all
unauthorised disclosures of confidential information or documentation
made by them during the course of their Engagement and/or after the end
of their Engagement, including identifying by reference to each
unauthorised disclosure:
a.

The specific information and/or documentation disclosed;

b.

The date or dates on which such information and/or
documentation was disclosed;

c.

The identity of the party or parties to whom that information
and/or documentation was disclosed; and

d.

The format in which that information and/or documentation was
disclosed.

50.

Further or alternatively, as a result of the Defendants’ breaches of the
Confidentiality Obligations, the Claimants have incurred considerable costs in
instructing their legal representatives to write to the Defendants in order to demand,
inter alia, that the Defendants: (a) explain to whom and/or to which organisations in
Cyprus or elsewhere unauthorised disclosures have been made, (b) explain what
confidential Information or documentation has been disclosed, (c) return any
confidential documents or information that remain in their possession, and (d)
18

 confirm that they would comply with their Confidentiality Obligations by making
no further unauthorised disclosures.
51.

The Claimants’ legal representatives engaged in such correspondence between
around April 2015 and May 2016. The Claimants are entitled to and claim the costs
of instructing their legal representatives to engage in such con-espondence as
damages and/or equitable compensation in the sum of approximately £120,000.00
or such other sum as the court may assess.

52.

The Claimants are also entitled to, and claim, interest on any damages and/or
equitable compensation awarded to them pursuant to section 35A of the Senior
Courts Act 1981, for such period and at such a rate as the Court considers
appropriate.

53.

Further or alternatively, the Claimants also seek an account of any profits which the
Defendants may have made as a result of their breaches of the Confidentiality
Obligations.

AND THE CLAIMANTS CLAIM:
(1)

The declaration referred to in paragraph 49.1 above;

(2)

The orders referred to in paragraphs 49.2, 49.3 and 49.4 above;

(3)

An account of profits;

(4)

Damages and/or equitable compensation or such other sum as the court may assess;

(5)

Further and/or other relief; and

(6)

Costs.

TIM KENEFICK
JASON ROBINSON

19

 Statement of Truth
The Claimants believe that the facts stated in these Particulars of Claim are true.
I am duly authorised by the Claimants to sign this Statement of Truth.

Dated:

Signed:

Name:
I.

Position:

\ CO

20

 Claim No. CL-2016-000195

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

COMMERCIAL COURT

BETWEEN:

(1) FEME BANK LTD
(2) MR AYOUB-FARH) MICHEL SAAB
(3) MR FADI MICHEL SAAB

Claimants

- and -

(1) DANGATE CONSULTING LTD
(2) BARRINGTON LONDON LTD
(3) MR NIGEL BROWN
(4) MR ALEC LEIGHTON

Defendants

PARTICULARS OF CLAIM

Quinn Emanuel Urquhart & Sullivan LLP
One Fleet Place
London EC4M 7RA

Tel: +44(0)20 7653 2000
Fax: +44(0)20 7653 2100