Crane Bank Limited & Ors v DFCU Bank Limited & Ors

Dame Clare Moulder DBE: Introduction

1. This is the judgment of the Court on the Claimants' application dated 19 December 2025 pursuant to CPR Practice Direction 57AD (the "Practice Direction"), paragraph 17.1 and/or paragraph 18.1 in relation to the First and Second Defendants' (“dfcu”) disclosure.

2. In support of the application the Claimants had filed the Sixteenth Witness Statement of Masoud Zabeti dated 19 December 2025 and the Twentieth Witness Statement of Masoud Zabeti dated 13 February 2026 (“Zabeti 20”).

3. In response dfcu relied on the Fifteenth Witness Statement of Thomas Clark dated 30 January 2026.

4. That application was amended on 16 February 2026 and dfcu indicated in its skeleton that it consented to the Court deciding the disclosure application including the amended and new relief (subject to noting that dfcu had limited time to respond given that Zabeti 20 was filed only 3 working days before the skeleton and the issue of costs).

5. Accordingly the submissions to the Court were based on the relief sought in the amended draft order which was before the Court at the hearing (the “Revised Draft Order”). References to the “Application” in this judgment are to the application as amended.

6. The hearing was held remotely and all parties were represented. However submissions were made only by counsel for the Claimants and for dfcu.

7. The relief sought by the Application continued to be debated between the parties in correspondence after the evidence and the skeletons had been filed up to and including a lengthy letter from Freshfields dated 26 February 2026 (the “26 February Letter”) on the eve of the hearing. I note that dfcu filed an “updating note” which the Court received on the morning of the hearing but this was of limited assistance given its timing, cross referencing to previous correspondence and further agreements/concessions. The Court has therefore relied largely on the oral submissions to identify the remaining outstanding points.

8. Unfortunately the time taken for oral submissions did not permit the Court to hand down an ex tempore judgment at the hearing. I am conscious that time is however running for the outstanding disclosure issues to be determined and I have therefore sought to produce a judgment without spending time rehearsing the background of the now-agreed matters or tracing the development of the outstanding disputes but focussing on the issues which require determination.

9. The wider background is introduced in the judgment of Paul Stanley KC [2025] EWHC 1915 (Comm) . Relevant law

10. Although the law on the Practice Direction might be thought to be well established and largely case specific, there were a couple of matters raised by dfcu which need to be addressed as to the correct approach.

11. The Application is made in the alternative under paragraph 17 or 18 of the Practice Direction:

17. Failure adequately to comply with an order for Extended Disclosure 17.1 Where there has been or may have been a failure adequately to comply with an order for Extended Disclosure the court may make such further orders as may be appropriate, including an order requiring a party to— (1) serve a further, or revised, Disclosure Certificate; (2) undertake further steps, including further or more extended searches, to ensure compliance with an order for Extended Disclosure; (3) provide a further or improved Extended Disclosure List of Documents; (4) produce documents; or (5) make a witness statement explaining any matter relating to disclosure. 17.2 The party applying for an order under paragraph 17.1 must satisfy the court that making an order is reasonable and proportionate (as defined in paragraph 6.4). 17.3 An application for any order under paragraph 17.1 should normally be supported by a witness statement.

18. Varying an order for Extended Disclosure; making an additional order for disclosure of specific documents 18.1 The court may at any stage make an order that varies an order for Extended Disclosure. This includes making an additional order for disclosure of specific documents or narrow classes of documents relating to a particular Issue for Disclosure. 18.2 The party applying for an order under paragraph 18.1 must satisfy the court that varying the original order for Extended Disclosure is necessary for the just disposal of the proceedings and is reasonable and proportionate (as defined in paragraph 6.4). 18.3 An application for an order under paragraph 18.1 must be supported by a witness statement explaining the circumstances in which the original order for Extended Disclosure was made and why it is considered that order should be varied. 18.4 The court’s powers under this paragraph include, but are not limited to, making an order for disclosure in the form of Models A to E and requiring a party to make a witness statement explaining any matter relating to disclosure.

12. Paragraph 6.4 of the Practice Direction, which is cross referred to in paragraphs 17 and 18, reads as follows: In all cases, an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective including the following factors— (1) the nature and complexity of the issues in the proceedings; (2) the importance of the case, including any non-monetary relief sought; (3) the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence; (4) the number of documents involved; (5) the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any costs estimates); (6) the financial position of each party; and (7) the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost. The test under paragraph 17

13. Counsel for dfcu submitted that under paragraph 17: “it must be shown that there has been non-compliance with the prior order for Extended Disclosure, which is normally assessed on the balance of probabilities”

14. This submission stands in contrast to the clear language of the Practice Direction which states “ Where there has been or may have been a failure adequately to comply… ”. [emphasis added]

15. Counsel for dfcu relied on Matthews and Malek, Disclosure (6th edn), at ¶6-100. However that passage in my view does not support counsel’s submission. It reads as follows: (a) Failure to comply with order for Extended Disclosure Where the court is satisfied that there has been a failure to comply with an Order for Extended Disclosure then this falls within PD 57AD para.17. However the wording provides that the jurisdiction applies where there “may have been” a failure, which implies that even where it has not been established that there has been a failure there may be jurisdiction to make an order. Where the court considers on the balance of probabilities on the basis of the material before it then clearly there is jurisdiction, but if it is not so satisfied then ordinarily one would not expect the court to make a further order. At the very least there must be more than a general suspicion that there has been non-compliance with an order for Extended Disclosure. Where the court considers that it is not in a position to conclude that there has in fact been a failure, but only that there may have been, the court may take that into account in deciding whether or not to make a further order and if so in what form. A sworn statement by the respondent to an application is not conclusive on the issue of compliance…”.

16. In my view that passage reflects the language of the Practice Direction and the highest dfcu can put its case is that there must be more than a “ general suspicion ” that there has been non-compliance.

17. dfcu also submitted in this regard that: “It is not enough to point to the fact that a low number of documents has been produced in response to the existing orders for disclosure; it must be shown that in the specific circumstances of this case “documents of a certain type or kind must exist, [such] that the failure to produce such documents gives rise to an inference that the disclosure process has failed or is deficient”.

18. Counsel for dfcu relied on Agents’ Mutual Ltd v Gascoigne Halman Ltd [2019] EWHC 3104 (Ch) , at [13(i)].

19. I do not accept the breadth of the proposition which counsel sought to advance in reliance on the passage from Agents’ Mutual which reads as follows: “One of the points made by Ms Farrell was that the Defendants’ search, as I have described it, had produced very few documents. To quote from paragraph 18 of Farrell 9: “Of the 95 documents disclosed by the Defendants, 25 are public-domain or third-party documents, comprising 8 press articles, 5 analysts’ reports and 12 documents that are either the Claimant’s promotional materials, [Gascoigne Halman’s On the Market membership documents], or documents relating to [Agents’ Mutual’s] IPO. Of the remaining 70 documents, 39 contain redactions for (what is said to be) confidentiality, despite the protection afforded to these documents by the Confidentiality Ring.” The same point is also made in paragraph 32 of Farrell 9. This is not, in itself, a deficiency of the Defendants’ disclosure. The fact is that there may, in any given case, be few relevant documents of which to give disclosure. It may be that there are some cases, where it is so obvious that documents of a certain type or kind must exist, that the failure to produce such documents gives rise to an inference that the disclosure process has failed or is deficient. However, I do not consider that this is such a case. Given the nature of the issues between the parties, I consider it as entirely possible that there are actually very few relevant documents in the Document Universe.”

20. As is clear from that passage the significance of the fact that few documents are disclosed is fact dependent and “there are some cases, where it is so obvious that documents of a certain type or kind must exist, that the failure to produce such documents gives rise to an inference that the disclosure process has failed or is deficient”.

21. In my view counsel for dfcu’s submission that “ it must be shown that in the specific circumstances of this case documents of a certain type or kind must exist , such that the failure to produce such documents gives rise to an inference that the disclosure process has failed or is deficient ” [emphasis added] fails to properly reflect the relevant passage in Agents’ Mutual . The test under paragraph 18

22. Whilst this was not in dispute, it is worth noting that, as referred to in the Claimants’ skeleton by reference to Agents’ Mutual at [11], it is harder to obtain an order under paragraph 18 because the applicant has to show not only that the order is reasonable and proportionate but also that varying the original order is “ necessary for the just disposal of the proceedings ”. The agreed matters

23. By the time of the hearing dfcu had agreed to the following relief (as more fully set out in the Revised Draft Order): i) to carry out all the “participant searches” for emails relating to certain email accounts (paragraph 1 of the Revised Draft Order). ii) to add Mr Banza and Ms Nagadya as custodians for the dates identified in the Revised Draft Order (paragraph 2 of the Revised Draft Order). iii) to provide a witness statement from Freshfields’ setting out: a) dfcu's data preservation policies for the periods identified in the Revised Draft Order (paragraph 3a) of the Revised Draft Order); b) the dates dfcu put EY, KPMG Kenya and KPMG Uganda on notice of the proceedings (paragraph 3b)(ii) of the Revised Draft Order); iv) to disclose the sale and purchase agreement for Crane Bank Rwanda ("CBR") (paragraph 4 of the Revised Draft Order).

24. Further the Claimants have agreed not to pursue the request for a witness statement relating to certain matters concerning Crane Financial Services Limited (paragraph 5 of the Revised Draft Order).

25. In relation to paragraph 6 which sought disclosure of the documents listed at Annex 1 and Annex 2 to the Revised Draft Order. The four categories sought in Annex 1 are either agreed or fall away: i) the request to search for, disclose and produce monthly spreadsheets for the period 26 January 2017 to date (the “monthly spreadsheets”) that tracked the monthly performance of CBL’s non-performing and written off book (together, the “Bad Bank”) is now agreed (Annex 1 paragraph a); ii) the request for the document entitled royal.xlsx is no longer pursued (Annex 1 paragraph b); iii) the Claimants have accepted that, as set out in Freshfields letter of 16 February 2026, what is available in terms of a list of customers for the written off loans has been provided (Annex 1 paragraph c); iv) the Claimants sought reports to the Bank of Uganda (“BoU”) in accordance with certain accommodation provided by the BoU but counsel for dfcu told the Court that there were no such separate reports required by the BoU which appears to be consistent with the position set out by Freshfields in the 26 February Letter (Annex 1 paragraph d).

26. dfcu have now provided the draft of the response to the letter from the BoU and dfcu have agreed to provide the documents related thereto (paragraph 11 of the Revised Draft Order). Outstanding issues Customer files (paragraph 6 and Annex 2 of the Revised Draft Order)

27. The Claimants are seeking an order for disclosure and production of 40 customer files. These are files of particular named customers, which the Claimants in their evidence (Zabeti 20 paragraph 60) say appear to represent a very substantial share of the gross value of the non-performing loans (c.72%) and the written off loans (c.92%).

28. The Claimants say that this disclosure “ will materially assist the parties’ AVQ experts in assessing the value of the loans in the Bad Book and the Written Off Book ”.

29. In its letter of 23 February 2026 Freshfields stated that “ the Claimants could have made this request earlier and no proper explanation has been provided for the timing of this request ”.

30. I note that Freshfields went on in their letter of 23 February (paragraph 9) to offer to search for the files in issue but only on condition that the Claimants dropped their opposition to the application brought by dfcu to amend its defence. That position I understand to have been abandoned by dfcu.

31. I understand that dfcu now propose that dfcu will provide, subject to being able to locate the relevant files, the 40 customer files that the Claimants have requested plus an additional 20. Breach of the existing order

32. Given that I understand dfcu to have agreed to search for and produce the 40 files I do not see it is necessary to make a finding as to whether there has been (or may have been) a failure by dfcu to comply with the order for extended disclosure in order to found jurisdiction to make an order under paragraph 17 of the Practice Direction.

33. However insofar as counsel for dfcu submitted that there had been no alleged breach of dfcu’s disclosure obligations on the basis that the disclosure obligation in relation to the hard copy files was only Model C and not Model D, I should address that.

34. It was submitted by counsel for dfcu that the parties agreed that the hard copy customer files would be dealt with by way of the Model C disclosure which was confined to hard copy files acquired from CBL that are referred to in the PwC Forensic Report.

35. It is correct that by a consent order dated 3 March 2025, the parties on the face of that order agreed that Issue 22 should be Model C disclosure and thus required disclosure of (amongst other things) files relating to customers referred to in the PwC Forensic Report.

36. Issue 22 was as follows: “What loss and damage, if any, did CBL suffer as a result of any alleged conspiracy, alleged unlawful means and/or alleged dishonest assistance to which a Defendant was a party?”

37. However there is nothing on the face of that order which would suggest that it was dealing other than with Issue 22. To the contrary the recitals in my view make it clear that the only thing being addressed by the order was Issue 22 and does not suggest that it had any wider effect on the disclosure obligations: “AND UPON the Claimants and the First and Second Defendants (pursuant to paragraph 4 of Part 2 to Annex C of the CMC Order) liaising further in respect of the appropriate disclosure model and search parameters for Issue 22 of the List of Issues for Disclosure at Annex B of the CMC Order .”

38. In her oral submissions counsel for dfcu did acknowledge the footnote in the order which stated: “The Claimants' position in relation to the disclosure of CBL customer files is fully reserved.”

39. Counsel for dfcu nevertheless submitted that there has been no breach of any of the disclosure orders in this case.

40. I do not accept that submission. In my view, as submitted by counsel for the Claimants, the issue of the loans, details of which are expected to be found in the customer files, go to the wider issues of Disclosure Issues 1, 2, 3 and 17 which were as follows and in respect of which Model D was ordered: “1. What was the financial situation of CBL as at 31 December 2015, including but not limited to: (a)What was the value of, or the value attributable to, CBL and/or CBL's assets and liabilities as at 31 December 2015? (b)Were CBL's audited accounts for the year ended 31 December 2015 materially misstated? (c)Was CBL undercapitalised and/or did it have liquidity problems?

2. Had CBL been mismanaged prior to 20 October 2016?

3. What was the financial situation of CBL as at 20 October 2016, including but not limited to: (a)What was the value of, or the value attributable to, CBL and/or CBL’s assets and liabilities as at 20 October 2016? (b)Were CBL's assets and liabilities correctly captured in the PwC Inventory and the PwC Abridged Inventory? (c)Was CBL undercapitalised and/or did it have liquidity problems and/or did it have excessive liabilities and/or did it pose a risk to depositors and financial sector stability?

17. What was the financial situation of CBL at or around the time of completion of the Transaction, including but not limited to: (a)What was the value of, or the value attributable to, CBL and/or CBL's assets and liabilities on (i) 31 December 2016; and (ii) on the date of execution of the Transaction Documents; and (b)what did the Defendants perceive, know, and/or understand to be the value of CBL's assets and liabilities and the risks relating to the acquisition of such assets and liabilities?” Additional files

41. This leaves two issues to be resolved: i) the additional customer files; ii) the timing for the provision of the customer files.

42. I note that in the letter of 23 February 2026 Freshfields offered to provide 20 additional customer files by 3 April 2026 which “ will hopefully ensure that the parties will still have access to a set of customer files that represent a high proportion of the CBL Bad Book ”.

43. However counsel for the Claimants objected that it was unclear on what basis the additional 20 files had been selected. Counsel for the Claimants submitted that the parties are under a duty to cooperate and it is not for dfcu to seek to identify the additional files which should be disclosed.

44. Counsel for dfcu submitted in oral submissions that the loans had been selected “ on the basis of the level of the loan provisions for these customers’ loans ”.

45. This is broadly consistent with an email sent by Freshfields to Greenberg Traurig prior to the start of the hearing day for this Application in which it said that: “…these additional CBL customers were identified as having high loan provisions as at 30 June 2016 and 31 October 2016.”

46. However I accept the submissions for the Claimants that the selection of customer files must be representative and not in effect “ cherry picked ” to support dfcu’s case.

47. In her oral submissions counsel for dfcu did not persuade me that this was not an issue on the formulation proposed by dfcu: as the Claimants submitted “ high provisions ” suggest that these loans are on the face of it of lower value than the other loans in the book.

48. I therefore agree with the proposal that the parties should liaise with a view to identifying an objective basis for selecting the additional files, failing which there should be liberty to apply and with a backstop date for disclosure (unless varied) of 3 April 2026. Timing for production of files

49. Counsel for the Claimants submitted that what has been proposed is dfcu would give the Claimants the 40 files sought plus the additional 20, with a deadline of 3rd April 2026. Counsel for the Claimants submitted that they would like the 40 files, they have requested them and sought an order in respect of them. As regards the 20 files, the proposal from the Claimants is that those be pushed back to the end of a staged process, so they get the 40 files sooner and by pushing the 20 towards the back of the window for disclosure the parties are given some short period of time, days rather than weeks, to try to agree that 20 files, so they are selected on an objective basis.

50. Thus the Claimants proposed the following: i) by two weeks from the date of the hearing, 13 March 2026, dfcu disclose from within the 40 customer files identified all those which dfcu have already located. ii) by four weeks from the date of the hearing, 27 March 2026, they disclose what is left in respect of the 40 customers files. iii) by 3 April 2026, dfcu disclose additional customer files agreed between the parties with liberty to apply in the event that agreement cannot be reached.

51. I agree with what is proposed by the Claimants. Customer files -ancillary matters

52. There are several outstanding ancillary matters linked to the disclosure and production of the customer files: i) The Claimants are seeking correspondence between dfcu and the customer in relation to any restructured accounts (Annex 2 paragraph b); ii) The Claimants seek disclosure of the “complete” customer file (paragraph 9 of the Revised Draft Order); iii) The Claimants seek a witness statement setting out: a) whether the customer files which have already been provided have been “pre-filtered” (paragraph 8c) of the Revised Draft Order); and b) in relation to customer files which could not be located, why those files are not available and details of the searches (paragraph 8d) of the Revised Draft Order).

53. The First Defendant has already explained in its Disclosure Certificate that: “…The customer files were then reviewed by Freshfields to identify, where possible, documents that formed part of the customer files of CBL on takeover (i.e. “CBL data”) and to distinguish such documents from documents incorporated into the customer files following takeover (i.e. “dfcu data”). The First Defendant’s disclosure contains CBL data as well as any material that could not be readily identified as dfcu data…”.

54. It was submitted by counsel for the Claimants that although dfcu may submit that they have in correspondence at various times explained the position, it is sufficiently important that it ought to be covered in a disclosure witness statement.

55. The information already provided is not merely in correspondence but contained in a document which is signed with a statement of truth which exposes the maker to the risk of proceedings for contempt if untrue. I cannot see that a witness statement would advance the position.

56. As to paragraph 9 of the Revised Draft Order the considerations which applied to the original files, namely the distinction between the files acquired and documents which were added which related to dfcu rather than CBL, are equally applicable. It is worth noting that, as set out in Freshfields’ letter of 23 February 2026: “…These files therefore contain considerable amounts of irrelevant and/or commercially sensitive customer information. As you will be aware, there are numerous legal protections of customer information within the Ugandan legal framework and dfcu Bank considers this to be an important factor. Accordingly, and for the avoidance of doubt, dfcu Bank intends to provide disclosure only of those parts of the customer file that formed part of the customer file received from CBL as well as any material that cannot be readily identified as dfcu data.”

57. In my view the Claimants have not shown that there may have been a failure to comply with the order for disclosure and it would not be appropriate to vary the order to require disclosure of those parts of the file which relate to dfcu rather than CBL. However insofar as there are documents which relate to the restructuring of loans by dfcu after they were acquired from CBL I did not understand that to be opposed by dfcu.

58. In relation to the customer files which were referred to in the Disclosure Certificate as not being located, the Claimants submitted that there was: “a long history to disagreements over the customer files and it is important that there be for trial a full record of the basis on which they have been searched for and to the extent not found, why that would appear to be.”

59. Again however the First Defendant has certified in the signed Disclosure Certificate that searches were carried out but that they could not be identified. Absent any reason to doubt the veracity of the Disclosure Certificate, I am not satisfied that the order sought for “ a full record ” of the basis on which they have been searched and “ why ” that was the case, is appropriate under paragraph 17 or that varying the original order is “ necessary for the just disposal of the proceedings ”. Z drive

60. There are two outstanding issues related to searches of the Z drive: i) a request for a witness statement as to why the searches did not catch the spreadsheets referred to in Annex 1 and certain SWIFT messages (paragraph 3c) of the Revised Draft Order); ii) details of the proposals for locating and identifying the monthly spreadsheets (paragraph 7 of the Revised Draft Order).

61. The approach taken and the limitations of the searches across the Z drive (which is said to consist of more than five terabytes of unstructured data) have been explained hitherto: in particular, in Freshfields’ letter of 19 February 2025 and in dfcu’s Disclosure Certificates. In the 26 February Letter (paragraph 21), Freshfields stated in relation to the SWIFT messages that neither the files in the subfolder in which the documents were held nor any parent folder were responsive to dfcu’s collection terms. In relation to the monthly spreadsheets Freshfields stated (paragraph 22) that they were held in different subfolders and to the extent not collected were not responsive to the collection terms nor in folders or subfolders that were responsive to the collection terms.

62. Counsel for the Claimants submitted orally that the Claimants: “are entitled to have that information so that we can mount a case if this is the position, that its searches have been inadequate, even notwithstanding the technical difficulties it has faced it has not done enough to overcome them. The reasons given for failure to locate these obviously relevant documents will, in my respectful submission, be significant there”.

63. The Claimants have not established that there may have been a failure to comply with the order for disclosure in respect of the Z drive. Proportionate ways of tackling the data had to be devised and the fact that not all documents were responsive to search terms does not establish that there may have been a failure.

64. The Claimants have not established a basis on which they can be said to be “ entitled ” to have the information in order to mount a case that there has been a failure to comply with the order for disclosure (see note 2AA-65 of the Practice Direction which would suggest the contrary).

65. Even if the Claimants could show a possible failure, it would not be reasonable and proportionate to require a witness statement which I infer would merely repeat the explanation now provided in the recent correspondence by the solicitors for dfcu.

66. As to the monthly spreadsheets, in Mr Clark’s witness statement he stated that: “my firm has become aware of sub-folders on dfcu’s (Z:) drive that contain many of the monthly spreadsheets from the Relevant Periods. dfcu are prepared to produce these spreadsheets from the Relevant Periods, where available and identifiable with reasonable and proportionate searches, in a supplemental production.”

67. In the 26 February Letter Freshfields stated that the Claimants were not entitled to a detailed account of the searches that dfcu intend to undertake but that they would consist of “ enquiries with appropriate individuals ” and searches of subfolders “ within the relevant area of the (Z:) drive ”.

68. In oral submissions counsel for the Claimants submitted that: “we are seeking to get ahead of any more difficulties in that regard by having an open process in relation to the searching for these documents”.

69. I am not persuaded that the Court has power in the circumstances, under paragraphs 17.1 or 18 to order details of the searches that dfcu intend to undertake in this regard. However I would remind Freshfields of the duty under the Practice Direction to “ liaise and cooperate ” with the legal representatives of the other parties “ so as to promote the reliable, efficient and cost-effective conduct of disclosure ”. Witness statement re third party custodians (paragraph 3b) of the Revised Draft Order)

70. dfcu have provided information concerning the requests made and responses from certain third party custodians.

71. The Claimants seek a witness statement (paragraph 3b) of the Revised Draft Order) as to: i) details of the reasons why certain third parties have not provided documents (paragraph 3b)(i)); ii) dfcu’s understanding of document retention policies for KPMG Kenya and Uganda (paragraph 3b)(iii)); iii) the methods by which dfcu attempted to contact Denis Mukula (paragraph 3b)(v)).

72. dfcu submitted that it voluntarily provided the information and there is no basis to question dfcu’s confirmations that the parties had been contacted and had not provided any relevant documents.

73. dfcu further submitted (paragraph 18 of the 26 February Letter) that: i) it has not been given explanations by the certain third parties as to why they do not hold documents; ii) it is not aware of the document retention policies and has shared the information provided; iii) the third parties were contacted in writing and some by phone.

74. In the course of oral submissions counsel for the Claimants stated that the Claimants were now satisfied by the explanation provided in respect of third parties identified at paragraph 3(b)(i) of the Revised Draft Order.

75. I also understood dfcu to have agreed to provide the dates on which EY, KPMG Kenya and KPMG Uganda were put on notice of the need to preserve documents. This information should allow the Claimants to establish whether or not notices were duly given by dfcu.

76. It was submitted by counsel for the Claimants that: “…retention periods are quite important…It is only by identifying any relevant retention periods that the court will be in a position to know whether a failure by dfcu to notify the third party of the proceedings and the need to retain potentially relevant documents has been causative of a loss of documents…”.

77. However I do not accept that the Court should order a witness statement setting out “ dfcu’s understanding of the relevant document retention periods ” of KPMG Kenya and KPMG Uganda: i) the Claimants have not shown that there has or may have been a failure by dfcu to comply with an order for extended disclosure to the extent that the third parties have invoked their retention policies; ii) even if I were wrong on that, there is no basis for assuming that dfcu’s understanding of a third party’s policies would be complete and accurate information and Freshfields have stated in correspondence that “ dfcu are not aware of their retention policies ”.

78. As to Mr Mukula it was submitted for the Claimants that Mr Mukula: “is a very strong candidate to hold documents that are within dfcu's control and may be material to liability and valuation issues.”

79. However, as referred to above, Freshfields has already set out in the 26 February Letter that the third parties who did not provide information were contacted in writing and in some instances by phone. (Mr Clark in his witness statement had previously set out the dates on which dfcu had sought to contact him).

80. I cannot see that the Claimants have established any failure or possible failure to comply with the order for extended disclosure order in relation to Mr Mukula, or that a witness statement would be reasonable and proportionate in the circumstances in the sense that more information is likely to be provided which would provide any real assistance. Witness statement concerning identity of individuals providing instructions/information (paragraph 8a) of the Revised Draft Order)

81. Mr Clark has set out in his statement, in response to this Application, the names of the individuals on whom he relied in giving evidence in his 10th witness statement. The Claimants now seek that information in relation to certain paragraphs of his 15 th witness statement. It was submitted for the Claimants that the reason why that matters is knowing the identities of the individuals is obviously important to understanding whether reasonable enquiries have in fact been made: “To give an example, often there will just be a catch-all reference as to individuals or an individual within the finance team. We do not know whether that individual was there at the relevant time. We do not know whether they are a person likely to be in a position to provide worthwhile responses or to inform searches.”

82. Whilst counsel for the Claimants sought to characterise the references to teams as a “ catch all ”, in my view the references in Mr Clark’s statement appear on their face to refer to individuals within the appropriate areas. Thus for example, at paragraph 43 Mr Clark refers to instructions being given to him in relation to the absence of financial statements for CFSL “ by individuals within the First Defendant’s Finance and Legal teams ”.

83. In my view the Claimants have not established a basis on which, absent the Court being satisfied that there may have been a failure to comply with an order for extended disclosure, they are entitled to an order “ in order to understand whether reasonable enquiries have in fact been made ”. Whilst the Claimants might seek to argue that such an order is necessary under paragraph 18, I did not understand the Claimants to advance such a submission and I am not satisfied that it has been shown to be “ necessary for the just disposal of the proceedings ”. Absent a basis under paragraph 17 or 18 the relief sought would appear to be seeking evidence of compliance with disclosure obligations as to which see note 2AA-65 of the Practice Direction which would support a conclusion that there is no power under the Practice Direction and I am not persuaded of the need to exercise any residual discretion outside the framework of the Practice Direction. Witness statement concerning the information in “Borrowings V2” (paragraph 8b) of the Revised Draft Order)

84. In his 15 th witness statement Mr Clark stated (paragraph 50g): “In relation to sub-paragraph (g) (details of CBL borrowings), without waiver of privilege, Freshfields has made further enquiries following receipt of the Disclosure Application in relation to the documents used to compile the information in the document entitled “Borrowings V2” (MLB-0001160) [MZ16/467], including making enquiries of individuals within the First Defendant’s Finance team. However, it has not been possible to identify the underlying documents sought by the Claimants nor to determine what documents they would have been. As is evident from the email chain to which this document is attached (MLB-0001155) [TRGC15/60-65], “Borrowings V2” was prepared in the context of the First Defendant’s due diligence exercise, meaning that the borrowings set out in the document represent the position of CBL at a specific point in time, before the Transaction took place. In relation to Mr Zabeti’s assertion that “this is the second example of a document of critical importance attached to an email from Imeldah Nalubowa not being disclosed by dfcu”, I note that Ms Nalubowa left the employment of the First Defendant on 30 January 2019, i.e. nearly two years prior to the Claimants’ LBA, and as such, the fact that certain documents previously held by her are no longer available does not suggest any deficiency in dfcu’s disclosure exercise or otherwise. I also note that dfcu voluntarily agreed to reconstruct Ms Nalubowa’s mailbox, and relevant, disclosable documents have been produced.” [emphasis added]

85. It was submitted for the Claimants that this explanation was in “ fairly generic and uninformative terms ” and it was submitted that they sought “ an explanation of the enquiries provided and whether they have extended to particular individuals likely to be able to assist .”

86. Again in my view the Claimants do not appear to go so far as to suggest that there may have been a failure to comply with the order for extended disclosure and if and to the extent that this is their case, there does not appear to be any evidential basis for such an inference. A proportionate search has not identified the underlying documents and the Claimants have not shown why the importance of this document would justify a variation of the searches already carried out. Paragraph 17 is not therefore engaged nor is the higher threshold of paragraph 18 met. Witness statement concerning documents in Annex 1 that cannot be produced (paragraph 10 of the Revised Draft Order)

87. There are two separate matters at issue under paragraph 10 of the Revised Draft Order: i) I understand the Claimants maintain their request for a witness statement under paragraph 10 of the Revised Draft Order explaining why the original list of written off CBL customer names and balances (the “Written Off List”) is no longer available. ii) I also understand the claimants to maintain their position that there should be reports on non-performing loans and advances to the BoU as set out in paragraph d of Annex 1 and to seek a witness statement in this regard. Written Off List

88. Freshfields stated in the 26 February Letter that they have already confirmed that the Written Off List is no longer available but that the same information is reflected in the “Writeoffs” tab of the “Final CBL Valuation by E&Y” spreadsheet which is in the possession of the Claimants. Freshfields therefore contend that the Claimants are not prejudiced by the Written Off List no longer being available and the information sought in the witness statement does not take matters forward.

89. Counsel for the Claimants submitted that: “this is the kind of situation that calls out for an explanation as to essentially what searches have been conducted and why it is thought that that original list is no longer available to be located in circumstances where it appears that there is confidence as to its content”.

90. I cannot see that there has been (or may have been) a failure by dfcu to comply with the disclosure order such as to engage paragraph 17.1 of the Practice Direction and even if that were wrong, in circumstances where disclosure of the “ same information ” has been made I see no reason to divert resources to explore why the list is no longer available. I also do not regard it as “ necessary for the just disposal of the proceedings ” to vary the order for extended disclosure under paragraph 18. BoU reports

91. Counsel for dfcu submitted that there were no separate reports.

92. In the 26 February Letter Freshfields stated: “Without any waiver of privilege, we are instructed by a former member of the dfcu Bank Credit team (whose job title changed over time and who is currently a senior credit audit manager) and a financial reporting manager in dfcu Bank’s Finance team that: (a) Pursuant to paragraphs 4 and 6 of the Compliance Accommodations Letter, which are the paragraphs upon which Zabeti 20 relies, for at least 12 months dfcu Bank was permitted to ringfence the non-performing loans and advances that it had acquired from CBL and manage them separately to other loans and advances, and dfcu Bank was also permitted to submit in effect two separate sets of its normal financial reporting such that the problems with the CBL non-performing loans and advances would not be taken into account by the BoU in assessing whether dfcu Bank’s balance sheet complied with the FIA and prudential requirements. (b ) The permission given in the Compliance Accommodations Letter to separately manage and report on CBL’s non-performing loans and advances is reflected in the process set out at paragraph 49(c) of Clark 15, by which dfcu Bank tracked the monthly recoveries on the CBL Bad Bank, which was treated separately from dfcu Bank’s balance sheet for accounting purposes as an off balance sheet item (and recorded in dfcu Bank’s balance sheet as a separate consolidated fair value figure). (c) dfcu have already agreed in Clark 15 to produce monthly spreadsheets produced as a result of this process, where available and identifiable with reasonable and proportionate searches.”

93. However it remains unclear in my view whether there were “ two separate sets ” of reporting as stated in the 26 February Letter which have not been disclosed and given the significance of the non-performing loans and advances to the proceedings, it is in my view appropriate to vary the order for extended disclosure and reasonable and proportionate to require a witness statement to clarify this. Date for supplemental disclosure

94. I have already dealt above with the timing for disclosure of the customer files. As to the balance of the disclosure which falls to be made as a result of this judgment (including the agreed matters) there is in my view a limited amount of work required and accordingly I will order that such disclosure (including witness statements to the extent ordered in accordance with this judgment) should be made within 3 weeks of the order which will follow hand down of this judgment. Addendum

95. When this judgment was sent to the parties in draft in the usual way, dfcu disputed the inference drawn by the Court as set out in the second sentence of paragraph 57. Having re read the transcript of the submissions for both parties, in my view the issue of whether documents relating to loans which were restructured should be disclosed was not fully articulated in the oral submissions. I therefore intend to determine whether an order for disclosure should be made in relation to this category of documents and its terms, after handdown of the judgment and unless the parties can reach agreement, to direct short written supplemental submissions before determining the issue on paper and without a further hearing.