Kinder’s casebook: How an African government trying its wealthiest citizen in the London courts could spell disaster for an American firm

The case of the Djibouti Government v Abdourahman Boreh was low on the radar for most – until developments arose in a hearing last September that put a Gibson Dunn & Crutcher lawyer in the hotseat over falsified evidence allegations.

Peter Gray, a Dubai-based litigaton partner, spent two days in the High Court last week being cross-examined by 7KBW’s Dominic Kendrick QC after it came to light last year that key evidence in a 2013 trial that led to the UK courts freezing $100m (£65m) of businessman Boreh’s assets was wrongly dated.

Update: Gray was found to have deliberately misled the court in a ruling by High Court judge Mr Justice Flaux on Monday 23 March. He has been suspended by Gibson Dunn and removed from the firm’s website pending a costs and consequences hearing on Tuesday 31 April. 

The key evidence came in the form of phone transcripts that appeared to implicate Boreh, “Africa’s richest businessman”, in a terrorist attack in Djibouti City on 5 March 2009. The transcripts have been used to sentence Boreh to 15 years imprisonment in absentia in the African nation for his apparent role in the attacks.

But in November last year, Gibson Dunn submitted evidence to the courts that showed the transcripts were incorrectly dated as the day of the attack. The correct date was one day previously: therefore, they did not make reference to the attack and by extension did not implicate Boreh.

The hearing to discover who is at fault in the falsified evidence claim is ongoing. Gray admitted making a number of mistakes and apologised to the court for the error before Mr Justice Flaux this week, though he maintained that no deliberate attempt to mislead the court had taken place.

Tabby Kinder

If found to have deliberately mislead the court, Gray could face disbarment and possible criminal charges. Indeed, Kendrick, acting for Boreh, said Gray had employed a “strategy of evasion” over who within Gibson Dunn was aware of the confusion regarding the dates of the telephone call.

Gray admitted: “We had agreed that strategy and it hadn’t worked out. Very much not worked out. It went spectacularly wrong. I got it spectacularly wrong. Which by itself I deeply regret having made a serious misjudgment on where that was going.”

The hearing continues and could call the entire six-year case against Boreh into question.

Key dates

2008: Abdourahman Boreh moves from Djibouti, Africa to Belgravia in London after the Djibouti Government launches court proceedings against him in the African country over allegations of tax avoidance.

4 March 2009: A string of grenade attacks take places on the Nougaprix supermarket in Djibouti City.

2012: The Djibouti Government files a civil lawsuit before the Commercial Court in London against Boreh on the same tax avoidance claims. Similar cases are also launched in Dubai and Paris, where Boreh has assets.

September 2013: Flaux J freezes $100m of Boreh’s assets in a hearing during which Djibouti (represented by Gibson Dunn’s Peter Gray and Serle Court’s Khawar Qureshi QC) claim phone transcripts dated 5 March 2009 implicate Boreh in the terror attack one day previously. Flaux J explicitly states the transcripts were the deciding factor in his decision to withhold the money.

November 2014: Gibson Dunn submits an application to the court setting out information showing an error in relation to the dating of the transcript of the telephone conversations. Flaux J says: “It would appear, on the basis of that material, that this court was misled on the occasion of granting the freezing injunction.”

March 2015: Gibson Dunn partner Peter Gray is cross-examined over two days by Boreh’s legal team. If Flaux J finds that Gray had deliberately misled the court and lied on affadavit, he could face criminal proceedings. The judge warned Gray at the start of the cross-examination that he did not have to answer any questions which would incriminate him.

Do say:

“This case shows that London is still the global centre for international disputes, but demonstrates the difficulties that can arise for lawyers when working on complex, cross-border disputes involving foreign governments and big money.”

Don’t say:

“Who tapped Boreh’s phone in the first place?” (Answer: Djibouti has a notoriously repressive government-controlled secret service).