CC Claimants -v- AerCap (Trial Protections Order)

Business and Property CourtsCommercial CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim nos: CL-2022-000294
CL-2022-000557
CL-2022-000611
CL-2022-000662
CL-2022-000697
CL-2023-000148

In the High Court of Justice
Business and Property Courts of England and Wales
Commercial Court, King’s Bench Division

23 August 2024

In the matter of the Russian aircraft claims

Before:

The Hon. Mr Justice Butcher (in private)

Between:

CC Claimants

-v-

AerCap

…………………………………………………………………………………………………………………………………………………………………………………………………

TRIAL PROTECTIONS ORDER

…………………………………………………………………………………………………………………………………………………………………………………………………

UPON the concurrent trial of the LP Claims listed for 2 October 2024 to 20 December 2024 (the “LP Trial”).

AND UPON the parties agreeing that a consolidated confidentiality order across the LP Claims should be put in place by separate Order for the LP Trial (the “Consolidated Confidentiality Order”) and this Order adopts the same defined terms.

AND UPON the 14 December 2023 Order of Mr Justice Butcher in relation to, inter alia, the collateral use of certain documents in the LP Claims (the “Collateral Use Order”)

AND UPON the application by the Claimants (the “CC Claimants”) in claim numbers CL-2022-000557, CL-2022-000611 and CL-2022-000622 dated 4 July 2024 (the “CC Application”) and the fourth witness statement of Edward Paul Gerald Spencer dated 9 July 2024 on behalf of the First Defendant in the AerCap Claim seeking to modify the order sought in the CC Application.

IT IS HEREBY ORDERED THAT:

Definitions

  1. “Commercially Sensitive Witness Information” means the information in the
    following categories which is redacted in witness statements:

    (1) The lists and values of assets insured under the Claimants’ respective Contingent and Possessed insurance policies;

    (2) The terms of leases, subleases or common terms agreements (including any documents which amend or expressly supplement their terms) for aircraft and/or engines agreed between the Claimants in each LP Claim and their respective customers;

    (3) Information regarding AerCap’s alleged attempts to discuss potential sanctions with government sources and/or procure changes, amendments or clarifications to EU and/or UK sanctions legislation; and

    (4) The financial interest to which the Claimants in each LP Claim allege they are entitled on the damages sought in their respective LP Claims.

Sitting in private

2. For the purposes of the present proceedings and subject to further Order of the Court and paragraph 3(3) below, including the trial of the action and any pre-trial hearings:

(1) The Russian politics, public policy and economics expert retained by the CC Claimants shall be referred to only as “Individual 1” in the LP Claims parties’ written submissions and when the Court is sitting in public.

(2) The fact witnesses called by the First Defendant in the AerCap Claim shall be referred to only as “Individual 2” and “Individual 3” in the LP Claims parties’ written submissions and when the Court is sitting in public.

3. The evidence of Individuals 1, 2 and 3 shall be heard entirely in private. Further:

(a) any direct or verbatim quotation from their evidence; or

(b) references to their evidence or other information,

in a manner that might reveal Individual 1, 2 or 3’s identity, shall be heard in private.

4. For the avoidance of doubt:

(1) Hearings of evidence in private of Individual 1, 2 or 3 shall be attended only by Permitted Persons who are permitted under the Consolidated Confidentiality Order to be provided with (as applicable) their unredacted report or statements.

(2) Where reference is made during the trial to:

(a) the pseudonyms Individual 1, 2 or 3; or

(b) Individual 1, 2 or 3’s evidence (whether oral or written, and including in case of Individual 1, their supplemental reports and the Joint Memorandum);

which in each case does not fall within paragraph 3 above, unless the Court orders otherwise there shall be no requirement to sit in private.

(3) There is no restriction on referring to Designated Personal Security Information (“DPSI”) (including the matters addressed at paragraphs 3(a) or (b) above) or Confidential Settlement Information in written documents filed with the Court, provided that:

(a) the document(s) in question are clearly marked in accordance with paragraph 7.2 of the Consolidated Confidentiality Order; and

(b) only Permitted Persons who are permitted to be provided with DPSI or Confidential Settlement Information (as the case may be) receive the document(s) in question.

Non-Individual 1, 2 or 3 DPSI

5. Subject to further Order of the Court (and subject to paragraph 15 of this Order):

(1) the Court shall not sit in private where reference is made at trial to DPSI
other than that relating to Individual 1, 2 or 3.

(2) in relation to DPSI other than that relating to Individual 1, 2 or 3, where it is necessary to refer to that DPSI at trial: (i) the DPSI shall not be read out in open court, nor shall the substance of any part of the DPSI be conveyed orally in open court; (ii) reference may be made to an unredacted written version of the DPSI; and (iii) the DPSI shall not be shown on the EPE screens.

6. Liberty to any party to invite the Court to sit in private if oral, verbatim, reference is to be made to DPSI, or the substance of any part of the DPSI is to be conveyed orally.

  1. For the avoidance of doubt, this Order is without prejudice to (and does not alter the terms of) the Consolidated Confidentiality Order.
  2. Liberty to apply.

Individual 4

9. The individual whose identity has been designated as DPSI in the First Witness Statement of Shane O’Reilly dated 24 November 2023 shall be referred to only as “Individual 4” in the LP Claims parties’ written submissions and when the Court is sitting in public.

10. Before the LP Trial commences, AerCap is to identify and redact (by designating them as DPSI) any references to Individual 4’s name or identity in documents which reveal the involvement of Individual 4 in assisting in the return of AerCap’s aircraft from Russia.

Other matters

11. Any party making oral submissions examining-in-chief, cross-examining or re-examining a witness or expert is required to notify the Court and the parties if any question or set of questions that it plans to ask is likely to refer to, or concern, DPSI or Confidential Settlement Information so that the parties may discuss whether this part of the evidence should be held in private or any other steps should be taken (save in the case of Individuals 1, 2 or 3, whose evidence shall be heard entirely in private). Further, witnesses and experts shall be asked, when commencing their oral evidence, not to refer in their oral evidence to DPSI or Confidential Settlement Information in a witness statement or expert report when the court is sitting in public and to give prior notice of any need to refer to the same so the Court can consider whether or not to sit in private (save in the case of Individual 1, 2 or 3, whose evidence shall be heard entirely in private).

12. The parties are to seek to agree a more detailed protocol for the conduct of hearings in private to be presented to the Court for approval by no later than 9 September 2024.

13. The trial bundle shall contain redacted versions of any evidence (including disclosure, witness statements and expert reports) containing DPSI (save for the evidence of Individual 1), Confidential Settlement Information or Commercially Sensitive Witness Information in accordance with paragraphs 23 to 25 below. Separate bundles shall contain unredacted versions of such evidence containing DPSI (the “DPSI Confidentiality Ring Bundle”), Confidential Settlement Information (the “Confidential Settlement Information Bundles”), and Commercially Sensitive Witness Information (to be included in the claim-specific trial bundles), save that the unredacted and redacted evidence of Individual 1 shall be contained entirely in the DPSI Confidentiality Ring Bundle. The DPSI Confidentiality Ring Bundle and the Confidential Settlement Information Bundles shall be accessible only to those Permitted Persons who are entitled to access the documents contained in the relevant Bundle.

14. Without prejudice to paragraph 4(3) above, any written submissions filed or served by the LP Parties shall not be available to any law reporter, media reporter or member of the public (whether by virtue of CCG J.7.3, an application under CPR 5.4C or otherwise) for a period of 5 working days following their filing or service. During the said period of 5 working days any LP Party will be entitled to request that DPSI or Confidential Settlement Information be redacted from the written submissions. Liberty to apply insofar as the filing or serving party and the requesting party are unable to agree the redactions. For the avoidance of doubt, the parties shall not be obliged to provide DPSI or Confidential Settlement Information in written submissions to any law reporter, media reporter or member of the public.

15. All questions relating to whether references to DPSI or Confidential Settlement Information shall be redacted from the trial judgment shall be reserved until further order of the Court.

  1. The publication or broadcast by any person of any information relating to these proceedings which would be likely to disclose any DPSI is prohibited.

Collateral use and third party applications

17. Pursuant to CPR 31.22(2), until further order and subject both to the Consolidated Confidentiality Order and the Collateral Use Order, CPR 31.22(1)(a) does not apply to (i) any documents containing DPSI or Confidential Settlement Information that has not been redacted, or (ii) the redacted evidence of Individual 1, notwithstanding that such documents or evidence have been read by or referred to in Court.

18. Subject to paragraph 14 above, any documents filed with the Court containing DPSI or Confidential Settlement Information (including skeleton arguments) shall not be subject to CCG J.7.3 and any application under CPR 5.4C shall be made on notice to the party that disclosed or served the information.

Non-Shared Disclosure, Commercially Sensitive Witness Information and Confidential Settlement Information

19. Documents which were both (i) disclosed in one of the LP Claims but were not shared with parties to the other LP Claims pursuant to paragraph 2 of the Second Composite Directions Order, and (ii) uploaded to the Opus2 platform (“NonShared Disclosure”), will be shared with all the Defendants to the LP Claims (by those Defendants being granted access to the relevant bundles on the Opus2 platform) within 7 days of the date of this order. Commercially Sensitive Witness Information will also be shared with all the Defendants to the LP Claims (by those Defendants being granted access to the relevant bundles on the Opus2 platform) within 7 days of the date of this order (subject to the terms of the Consolidated Confidentiality Order). For the avoidance of doubt, the Defendants have permission to use the Non-Shared Disclosure and Commercially Sensitive Witness Information for the purposes of any or all of the LP Claims (subject to the directions below).

20. AerCap’s Confidential Information is to be shared with all the Defendants to the LP Claims on the terms of the Consolidated Confidentiality Order. For the avoidance of doubt, (a) the Defendants have permission to use AerCap’s Confidential Information for the purposes of any or all of the LP Claims (subject to the directions below) and (b) the Claimants to the other LP Claims will not be entitled to see AerCap’s Confidential Information until provided to them in accordance with paragraphs 23-25 below.

21. DAE Confidential Information is to be shared with all the Defendants to the LP Claims on the terms of the Consolidated Confidentiality Order. For the avoidance of doubt, (a) the Defendants have permission to use DAE Confidential Information for the purposes of any or all of the LP Claims (subject to the directions below) and (b) the Claimants to the other LP Claims will not be entitled to see DAE Confidential Information until provided to them in accordance with paragraphs 23-25 below.

22. KDAC Confidential Information is to be shared with all the Defendants to the LP Claims on the terms of the Consolidated Confidentiality Order. For the avoidance of doubt, (a) the Defendants have permission to use KDAC Confidential Information for the purposes of any or all of the LP Claims (subject to the directions below) and (b) the Claimants to the other LP Claims will not be entitled to see KDAC Confidential Information until provided to them in accordance with paragraphs 23-25 below.

23. Subject to paragraph 26 below, if any Defendant to the LP Claims wishes to refer to Non-Shared Disclosure or Confidential Settlement Information at the LP Trial it will provide and keep updated an initial list of document(s) to which it wishes to refer as soon as reasonably possible to the LP Claims Claimant that disclosed or produced the document. For the avoidance of doubt, a Defendant may also do so (inter alia) by including a reference to the document in its skeleton argument.

24. The relevant LP Claims Claimant shall then be entitled to redact information in the documents identified by the Defendants in accordance with paragraph 23 above and any further Non-Shared Disclosure or Confidential Settlement Information on which the Claimants themselves wish to refer on the grounds of confidentiality, commercial sensitivity or security considerations from the NonShared Disclosure or Confidential Settlement Information before that document is placed in the trial bundle accessible to all parties to the LP Claims. Such redactions are to be applied as soon as reasonably possible. Any receiving party of redacted Non-Shared Disclosure or redacted Confidential Settlement Information has liberty to apply in respect of any such redactions. Any party which redacts a document under this paragraph shall explain to the other parties to the other LP Claims the grounds on which the document has been redacted.

25. Following the application of any redactions, the relevant LP Claims Claimant shall as soon as reasonably possible upload the redacted Non-Shared Disclosure or redacted Confidential Settlement Information to which the Defendant wishes to refer to a bundle on the Opus2 platform accessible by all the parties to the LP Claims. In the case of Confidential Settlement Information the Claimants to the other LP Claims will have access to the Confidential Settlement Information on the terms of the Consolidated Confidentiality Order and only Permitted Persons will have such access.

26. For the avoidance of doubt, nothing in this Order shall:

(1) restrict the right of the Defendants at trial to refer the Court to any NonShared Disclosure, Commercially Sensitive Witness Information or Confidential Settlement Information which is contained in the trial bundles;
or

(2) prevent the Defendants from referring to Non-Shared Disclosure, Commercially Sensitive Witness Information or Confidential Settlement Information in written or oral submissions,

but in each case (and for the avoidance of doubt), the protections for Confidential Settlement Information in this Order (including but not limited to those at paragraph 11) shall continue to apply.

Costs

27. Costs to be in the parties’ respective cases.