State hacking is one of those topics about which politicians and journalists have plenty to say. But the courts rarely have any input. Now for the first time in Britain, a state hacking claim is to be heard by The Court of Appeal in the case of Ras Al Khaimah Investment Authority (RAKIA) v. Azima. The trial was heard earlier this year in the Chancery Division and judgment was handed down in May. Earlier this month, the appellant, Farhad Azima, was given leave to appeal.
Giving an order granting permission to appeal, Mr Justice Arnold was suitably judicious in his use of language concerning the original trial judgment of Deputy High Court Judge, Andrew Lenon QC:
“In essence the Appellant’s grounds of appeal amount to challenges to the judge’s findings of fact. As such the Appellant faces a high hurdle to overcome, particularly given the apparently meticulous judgment delivered by the judge. Nevertheless, the grounds do not appear to be without substance.”
Azima is a US-based aviation tycoon. His claim for state hacking against RAKIA, the sovereign wealth fund of Ras Al Khaimah (RAK), the small UAE emirate, arises from what he alleges happened to him. Outlining the details at trial, Azima alleged that RAK and its advisers had hacked his emails, extracted stolen data and published it on the Dark Web.
Vehemently denying these allegations, RAKIA presented multiple witnesses for examination and cross-examination, including the former Dechert partner, Neil Gerrard. Some of these witnesses claimed that Azima’s stolen data had been innocently discovered via Google searches, which had been conducted by a friend of the private investigator, Stuart Page. In turn, Page had allegedly been hired by the Ruler of RAK to monitor Azima.
In his original judgment, Lenon QC noted that: “It would be a reasonable inference to draw from these incidents that Mr Page has access to agents with the capacity to hack emails” and that “Mr Page operates in a world of covert surveillance in which agents acquire confidential information unlawfully”. He rejected the witnesses’ explanation in its entirety as “inherently implausible and not credible” and found that “the true facts as to how RAKIA came to know about the hacked material have not been disclosed”. But he did not go as far as finding against RAKIA on the hacking allegation.
Shortly after this judgment was handed down, Gerrard took the highly unusual step of filing a “corrective” witness statement in order to rectify mistakes that he had made when initially giving evidence. Chronologically, this followed an allegation of perjury made against him by a Jordanian lawyer, Karam Al Sadeq, who has separately launched his own High Court claim against Dechert and Gerrard, accusing them of torturing him whilst he was illegally detained in a RAK prison.
In his judgment, Lenon QC further found that Gerrard had not “given an entirely satisfactory explanation for either the inaccuracies in his evidence in cross-examination or for the delay in providing corrective evidence” and that “the corrected evidence cumulatively creates a materially different impression”. He did not, however, revise his decision on the hacking claim. Accordingly, Azima appealed.
In granting Azima permission to appeal, Arnold J noted: “In particular, the third witness statement of Mr Gerrard is concerning, and it is arguable that the judge should have permitted Mr Gerrard to be recalled for further cross-examination.”
Fresh evidence was also considered: Azima is seeking to introduce on appeal new evidence about the extent and nature of the hacking campaign against him and other alleged enemies of RAK. In his judgment, Arnold J considered “that the application to adduce further evidence has a real prospect of success, and if successful it may put a new complexion on matters at least sufficient to justify a re-trial.”
A spokesperson for Azima commented: “We welcome this decision by the Court of Appeal. We are 100% confident of our position. It is notable that the Court of Appeal specifically expressed concern about the evidence from Dechert’s Neil Gerrard. New evidence continues to emerge which further demonstrates that RAKIA is responsible for the hacking of Mr Azima. We believe that they have been running a false case before the Court and we will request the reversal of the first instance Judgment with a finding that RAKIA was responsible for the hacking, or a full retrial.”
Dechert and RAKIA were also approached for comment on the judgment, but declined to do so.
No date has yet been fixed for the Court of Appeal hearing, but it will no doubt be closely watched by those who follow cybercrime cases involving illegal hacking in the corporate intelligence world.
Dominic Carman, journalist, writer and legal commentator. www.dominiccarman.com