Treo Noal GP Sarl & Ors v Stefan Emanuel Kowski & Ors

MRS. JUSTICE O'FARRELL:

1. This is a claim for damages by a Luxembourg-domiciled private equity fund (“the Fund”) (the second claimant), acting through its alleged general partner (the first claimant) and two companies indirectly majority-owned by the Fund (the third and fourth claimants).

2. The claim is brought against the first, second and third defendants, investment professionals who initially established the Fund but who ceased to have any further role in connection with it in August 2021.

3. The background to the claim is that a group of companies, the NSO Group, developed a product called Pegasus, cyber security software that is capable of conducting surveillance of people remotely and undetected by devices, including smartphones.

4. In 2019, the Fund invested indirectly in the NSO Group through the purchase of 70% of the share capital in its parent company, Triangle. The amount that was invested was some €218 million. The claim brought by the four claimants is for unlawful means conspiracy and/or deceit and/or in relation to what is said to be a bribe under English Law; in the alternative the claim is made under Articles 1382-3 of the Luxembourg Civil Code.

5. The allegations of fraudulent misrepresentation relate to two separate alleged representations made in 2019: i) The first alleged false representation concerns statements made as to the suitability of the investment in the NSO Group in an investment recommendation letter and appended documents, sent on 1 February 2019 by the Fund’s investment advisor, Novalpina International, to the Fund’s alternative investment fund manager, Sanne LIS S.A. ii) The second alleged false representation concerns statements made as to the extent of due diligence carried out in relation to the NSO Group and its customer base, in an announcement from Novalpina Capital, signed by the Defendants, to the limited partners of the Fund on 14 February 2019.

6. The claimants’ case is that, at the time of the acquisition of Triangle in March 2019, the investment was effectively worthless; it is said that the representations were false and fraudulently made.

7. As to the alleged bribe, it is not in dispute that a payment in the sum of US$5 million was made to a Mr. Zamir Dahbash, pursuant to an agreement with Novalpina International. The issue is whether that was a legitimate success fee based on his introduction of new business or whether it amounted to a bribe to persuade the Fund to engage in the relevant investment in the NSO Group. Further, it is alleged that there were breaches of the fiduciary obligations owed to the investment advisers.

8. The above allegations are said to amount to unlawful means conspiracy. The damages that are claimed are in excess of the value of the initial investment, over €218 million.

9. With that very brief introduction, I turn to the initial issues that have been raised by the parties at this first CMC: (i) the validity issues; (ii) cyber security expert evidence; and (iii) the Novalpina Capital LLP (“ NCL”) documents. Validity issues

10. The first issue relates to a suggestion by the first defendant that there should be bifurcation of what are known as the validity issues. The first defendant has pleaded as part of his defence a challenge to the validity of the appointments of the first defendant as general partner of the Fund and the managers of the third defendant. These issues go to the legitimacy and/or validity of the first, second and third claimants’ ability to bring the claims before this court.

11. The first defendant has applied for an order as part of the directions that the first trial should deal with all issues, save for the validity issues, namely, whether the first, second and/or third claimants have validly brought these proceedings. If the claims otherwise fail on their merits, the validity issues will not arise for determination. If and to the extent that the validity issues do arise, it is submitted by the first defendant that, within 28 days of judgment in the first trial, the first to third claimants shall, insofar as necessary, apply to restore the case management conference for the purpose of the court giving directions for a trial of the validity issues. The second and third defendants are neutral on this issue as they have not put it in issue and it does not directly concern them. The claimants oppose the suggested directions by the first defendant, but submit that this could be dealt with by way of a potential stay of execution following the trial of all of the other issues in the case.

12. It is unlikely that the validity issues will fall to be determined by this court because there are lengthy sets of proceedings already before the courts in Luxembourg that are dealing with this very point. There is no estimated date by which the Luxembourg courts will have concluded any decision on these matters and then there is the possibility of an appeal in the those proceedings. Therefore, the issues of validity that have been pleaded by the first defendant in these proceedings are currently being investigated and may be ruled on in the Luxembourg proceedings. If this court were to consider and determine those issues in these proceedings, there is a potential duplication of the time and cost of preparing and litigating the same; more significantly, there is the risk of conflicting decisions between this court and the courts in Luxembourg.

13. None of the parties is suggesting to the court today that the validity issue should be included in the scope of the trial that is going to be fixed for 2027/2028. Indeed, the parties have considered the appropriate directions, including witness statements, expert reports and disclosure on the basis that the validity issues are not going to be decided in the forthcoming trial. The only issue therefore is how the court should deal with the validity challenge; whether it should leave it to be determined as a matter of execution, as urged by the claimants, or whether the court should identify it as an issue to be determined by this court, if necessary, but in a separate trial to follow the main trial in these proceedings.

14. The first defendant seeks to persuade the court not to decide the matter in these proceedings in the first main trial but to make the order as submitted by him on the basis that it is very unlikely that the validity issues will ever fall to be decided by this court. As has been explained by Mr. Friedman to the court, first of all, the validity issues will not arise if the claims fail on their merits or the fourth claimant succeeds in respect of all relief to which the other claimants might be entitled. That scenario would only arise if the claims in conspiracy and deceit in respect of the 1 February 2019 representations failed but the claim in deceit in respect of the 14 February 2019 representations succeeded.

15. Secondly, in any event, the first defendant’s position is that it is likely that by the end of the first trial in this jurisdiction, the Luxembourg courts may well have determined the issue; even if not, at least the parties will be able to decide what, if anything, is left in the validity points.

16. When considering the appropriate order to make, the court must take into account the overriding objective set out in CPR 1.1, by dealing with the case justly and at proportionate cost so as to ensure that the parties are on an equal footing and can participate fully in the proceedings, saving expense and dealing with the case in ways that are proportionate to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party. This includes ensuring that the case is dealt with expeditiously and fairly, allotting to it an appropriate share of the court's resources while taking into account the need to allot resources to other cases. All of that means that the court has to consider how to exercise its general case management powers, as set out in CPR 3.1, which include adjourning or bringing forward a hearing or any issue in the case to ensure that the parties are on a fair footing.

17. In particular, I am conscious of the fact that the three defendants are individuals. They are keen to have this matter dealt with as soon as possible but also anxious to ensure that the court does not embark on any costly satellite litigation that may ultimately prove to be unnecessary. Balanced against those interests, it is important that the court deals actively with any pleaded issues in the case. This poses a dilemma for the court, given the ongoing Luxembourg proceedings, as to the timescale of which the court does not have any clarity or certainty.

18. The court is satisfied that: firstly, no party is seeking a determination of the validity issues now or indeed in the first forthcoming trial; secondly, the validity issues are being dealt with by the Luxembourg courts and it is not suggested that it is inappropriate for the Luxembourg courts to deal with those issues; thirdly, the court is very conscious of the risk of conflicting decisions were this court to seek to go ahead and determine the validity issues within the first trial.

19. However, it is also clear that the court cannot simply ignore a pleaded issue in the case and hope for the best. Having regard to all those factors, the court considers that it is appropriate to order that the first trial shall deal with all issues, other than those concerning the issues whether the first, second and/or third claimants have validly brought the proceedings. If and to the extent that the validity issues are still in dispute after the judgment by this court in the first trial, the parties shall co-operate to restore the case management conference for the purpose of the court giving further directions for final disposal of this claim.

20. It seems to me that then leaves the court with some flexibility as to how it deals with any outstanding issues. It may be that it deals with them by way of a stay of execution; it may be that the court directs discrete issues relating to the validity issues to be decided. I do not think it would be appropriate for the court to tie its hands in that way at this stage. Cyber security expert evidence

21. I turn to the issue of cyber security expert evidence. Initially the claimants' position was that it would be appropriate for the court to order that there should be expert evidence in the field of cyber security. It identified in very general terms potential expert issues, such as which company should be considered appropriate comparators to NSO, the nature of the cyber security and spyware technology industries, the type of due diligence that could be expected in this industry, and how spyware technology could be used lawfully, how to determine whether or not it has been used lawfully, and what governance procedures would and should be in place. However, Mr McGrath KC, leading counsel for the claimants, is not seeking today a court order in relation to cyber security expert evidence; but he reserves the right to come back to the court and identify an appropriate expert discipline or disciplines and expert issues that may well find favour with the court for the purposes of the first stage trial.

22. The defendants urge the court to grasp the nettle now. The first and third defendants invite the court to rule that cyber security expert issues do not arise on the pleadings in the case, thereby effectively dismissing any future potential application by the claimants.

23. The court is satisfied that no clear or precise issues have been identified in relation to any potential cyber security expert evidence. The issues would need to be defined clearly and precisely by reference to issues in dispute on the pleadings. It would be necessary to either identify the proposed expert or experts, or at least the relevant discipline, for the purposes of making any order for such expert evidence.

24. As the claimants recognise, they are not in a position to define those matters at this stage and therefore they are not actively pursuing an order today. The court can readily understand that some form of technical expert evidence might be necessary to determine the claims, possibly related to cyber security; more probably related to risk assessment and due diligence in respect of the surveillance software business. However, the application is not properly articulated and the court is not persuaded at the moment that any order for cyber security expert evidence should be made. Of course, it is always open to any of the parties to instruct their own experts for the purpose of enabling them to properly present their cases and/or cross-examine. It does not follow that the court will permit them to either serve expert reports that they wish to rely upon or indeed to adduce oral evidence from that expert at trial.

25. However, I consider it would be a step too far to rule that the claimants should not have an opportunity to bring the matter back at a later stage. It would not be appropriate for the court to shut out any future application and the court declines the invitation to do so. It follows that no order will be made in relation to cyber security expert evidence at this stage. Any future application will be considered on its merits. NCL documents

26. The NCL documents raise a potentially difficult issue that may need to be grappled with by the court in the future. The first defendant obtained a hard drive with documents on it that, it is said, were used in preparation of his defence. There have been proceedings in the insolvency court in which it has been determined that the hard drive should be returned to the liquidator and any copies of the documents deleted by the first defendant. I am told that the first defendant has complied with those orders and that it no longer has any of the documents.

27. The claimants’ position is that they are hoping to make a joint approach with the other parties to the liquidator to obtain a copy of the hard drive. However, no such application has been made to any court and no application has been made to the liquidator for delivery up of the hard drive. There is, it appears, a dispute in the correspondence as to whether or not it can still be said that the first defendant is in control of any of the documents. However, there is no application before the court to rule on that dispute and no relevant witness statements from which the court could identify and/or determine any specific issue in this regard.

28. The court is urged, by the first defendant, to provide clarity that the first defendant does not have to disclose any of the NCL documents through Part 2 of the DRD. However, given that at the moment there is no clear dispute before the court, it does not seem to me to be appropriate to consider making any general declarations. At the moment there is no application made by any party before the court for disclosure of the NCL documents by any other party. It seems to me there are likely to be issues regarding control of the NCL documents, but that would need to be considered in the context of a specific application supported by evidence.

29. As to whether any application needs to be made in this court or any other court for the liquidator to deliver up the hard drive, the court says nothing more about that. The issue is not currently before me and I decline the opportunity to advise the parties as how best they might take it forward.

30. For current purposes, the court is not being invited to make any specific order regarding the NCL documents and declines to make any declaration as to the adequacy or otherwise of any party's DRD regarding the NCL documents. (After further legal argument) Expert issues

31. The parties have very helpfully agreed in large part the issues for the experts to consider when preparing their reports for the court. There were three, now reduced to two, issues over which there is a dispute and one general issue about sharing of experts.

32. The first issue has helpfully I think gone. That simply related to the subject of the expert valuation evidence. It currently reads: "What was the value of Northpole Bidco shareholding in Triangle from time to time between 18th March 2019 and 17th February 2023?"

33. The proposal from the claimants was that should be a reference to OSY Technologies, rather than Triangle. The court takes the view that both may be relevant. OSY was the parent company of the NSO Group at the heart of this case, but the relevant purchase of shares was 70% stake in Triangle. On that basis, the court will order the expert issue as currently drafted but to read “the shareholding in Triangle, including OSY”. I think it is accepted by everyone that that is a reasonable approach.

34. The second issue in dispute is that the claimants propose a new paragraph B(3)(iv) in relation to Luxembourg expert evidence, to introduce the following question: "Where it is alleged that fraudulent false representations have been made to the limited partners of a Luxembourg Société en Commandité Spéciale (“SCSP”), can the SCSP (through its general partner) assert a claim in respect thereof?"

35. There seem to have been ships passing in the night on this. The defendants make the valid point that when one looks at the pleaded case on the claim under Luxembourg law, this issue does not arise. However, the point has been explained by Mr. Robb, on behalf of the claimants, namely, that it is actually in relation to the claims under English law; it raises an issue of status of the claimants pursuant to Luxembourg law to bring the English law claims.

36. Although this might end up being a peripheral issue, I will allow it at this stage. The court will reconsider whether it is an issue that can be dealt with in writing or falls away once the experts have met and held their discussions. I will allow it to be added to the list of issues for the Luxembourg experts.

37. That brings me on to the third issue, namely, expert sharing. It is a case management issue, whether to give permission for each of the parties to rely on their own expert evidence or whether any part of that evidence should be from a single joint expert.

38. As set out in CPR Practice Direction 35PD, paragraph 7, the court will take into account all the circumstances. Those circumstances include, in particular: i) whether it is proportionate to have separate experts for each party on a particular issue with reference to the amount in dispute, the importance to the parties and the complexity of the issue; and ii) the instruction of a single joint expert is likely to assist the parties and the court to resolve the issue more speedily and in a more cost effective way than by separately instructed experts.

39. Those factors are relevant in this case. The claims concern very serious allegations of fraud against three individual defendants. The claims are very high value and everyone has described the case as particularly complex. The defendants have put in separate defences, they are separately represented and they have different positions, not on all issues, but on a number of factual issues. In those circumstances, it would in my view be unfair to expect them to embark on an exercise to agree the joint instruction of the experts in issues such as valuation, Luxembourg law, Alaskan Law and Oregon law.

40. Insofar as common ground can be found, as indeed appears to be the case as between the second and third defendants on Alaskan law and Oregonian law, then those parties can save costs. However, as a matter of principle in this case, I consider that it would be inappropriate to force the defendants to share experts.

41. In terms of a level playing field, the claimants have chosen to sue three separate defendants. No criticism is made of that but they then should not complain when those defendants take a different approach in terms of their defences and their approach to the relevant expert evidence.

42. For those reasons, I do not include an order that the defendants should share their experts. (After further legal argument) DRD issues and models

43. Issue 3, as initially drafted, was: "What discussion and decision-making took place within the Novalpina AIs during 2018, 2019 concerning the suitability of NSO as an investment for the Fund?"

44. All parties have now agreed that can be effectively subsumed in issue 7, which is: "Did the defendants consider when the suitability representation was allegedly made on 1st February 2019 that NSO was a suitable investment for the Fund?"

45. Of course, it goes to the essential question which is what the defendants had in their minds, what they believed when any representations, if anywhere, were made about the suitability of NSO as an investment vehicle.

46. The parties have very helpfully narrowed the issue. It is now agreed that issue 7 should cover the period 2018-2019. There is a dispute as to whether it should include not only discussion and decision-making in which the defendants were involved, but also within the Novalpina AIs. I consider that it should include discussion and decision-making within the Novalpina AIs during 2018-2019, simply because there is clear evidence based on the extracts from various documents set out in the claimant's skeleton argument that indicate that various discussions and decisions and opinions were formed during that period as between March 2018 and February 2019.

47. Given that the defendants will not necessarily have been party to all discussions during that period, but may well have seen information documents that informed their views, it seems to me that those documents should be included and so if necessary the court would add to the current formulation of the issue in 7 (including...), and then include the wording from issue 3.

48. I then turn to the issue of whether there should be narrative documents. I consider that there should not be narrative documents for the following reasons.

49. The guidance set out in the White Book at paragraph 2AA 63.2 states that: "Disclosure of narrative documents should only be directed where there is: "(1) a real, as opposed to a fanciful, prospect that in connection with a particular issue a document exists which is relevant only to the background or context of material facts or events and not directly to the issue but which nonetheless be sufficiently important to the parties' cases that it merits searches, analysis and other costs of disclosure and; (2) no real likelihood that such a document will emerge as a result of the disclosure exercise in respect of any other issue."

50. I have been referred to two cases, Bouygues (UK) Ltd v Sharpfibre Ltd [2020] EWHC 1309 (TCC) at [40]–[41] and the University of Sheffield v Kudos Pharmaceuticals [2025] EWHC 1243 (Ch) at [29]-[34]. In each case the court took a different approach to the circumstances in which narrative documents should be ordered. I note that the two cases raised different factual issues, serving to emphasise the fact-specific nature of the test.

51. The court has to consider the nature of the case that is being put forward. The question is whether the formulation of those two disclosure issues 3 and 7, with the adjustments made by the court, is likely to pick up any additional documents that might be relevant indirectly to the issue.

52. On that front, it is important to recognise that this is not a case where there is a complicated web of deceit in terms of offshore accounts that need to be traced or, as set out in the White Book notes, secret meetings, obscure processes or hidden participants. This is a much clearer case; not simple but it is a clearer case. There is reliance on two specific sets of alleged representations, statements made at the beginning of February and mid-February 2019. It is clear that the scope of the information that has been sought in relation to issue 3 has now been subsumed into issue 7.

53. I am satisfied that on the facts of this case, although it is a case involving fraud, it is not one that necessitates the use of narrative documents. The disclosure issues have been drafted carefully and with precision and are likely to throw up a response in relation to all of the relevant documents, relevant being not only those that are directly relevant to the issues, but also those that are indirectly relevant, going to background or context that will be necessary for the court to determine the issues. (After further legal argument)

54. Issue 6 is largely agreed, but subject to three outstanding issues. What is agreed is currently by reference to the first defendant's formulation: what due diligence regarding (1) ESG, including human rights, and (2) reputational concerns and/or representational risks was undertaken regarding the acquisition of NSO, and what was the defendant's knowledge in respect of it? The first issue is whether, after the words "due diligence", there should be the addition of the words "formal and informal".

55. The parties are not far apart on this. The claimants' concern was that it should not be restricted to commissioned formal due diligence reports. The defendants accept that it should not be so limited, but are concerned at the open-ended nature of the reference to "formal" and "informal". What I would propose to do is to add in brackets "including any due diligence outside formal due diligence reports". It seems to me that that is better than formulating it by reference to "not limited to". It will include any documents that can be said to be due diligence documents, such as minutes of due diligence meetings, outside a formal report.

56. The second issue is whether at the end of the issue, there should be a further question: “what did the defendants think about the adequacy or otherwise of the due diligence undertaken?” I consider that that is already picked up through issues 7 and/or 9 and therefore it is unnecessary duplication so I will not include those words.

57. The third issue is whether there should be narrative documents to the full Model D disclosure. For the reasons that I have already given in relation to issue 7, I do not order narrative documents. I consider that it is too broad, it is unnecessary and it is unlikely to be pick up any useful documents that will not already be picked up by the other carefully formulated issues. - - - - - - - - - - - -