Ex-partner struck off after misleading court over dates error

A former Gibson Dunn & Crutcher (GD&C) partner who misled the High Court over a dating error has been struck off and ordered to pay £42,525 costs.

During September 2013, Peter Gray, a partner in GD&C between 2012 and 2015, swore several affidavits in support of a freezing injunction application, knowing the affidavits were misleading.

He also allowed counsel to make submissions he knew were misleading, sent misleading correspondence to opposing counsel and attempted to induce a junior colleague into making misleading statements.

The Solicitors Disciplinary Tribunal (SDT) found his “dishonest” and “reckless” conduct breached several SRA Principles and the SRA Code of Conduct 2011.

Gray was the matter partner acting for the Republic of Djibouti and others (Djibouti) on a high-profile case, Boreh v Djibouti [2015] EWHC 769 (Comm). 

High Court proceedings had been issued against Mr Boreh, a former senior official, who had allegedly misappropriated US$77 million from Djibouti; Djibouti wanted to prevent him dissipating assets. Gray also assisted another firm with extradition proceedings.

In 2010, Boreh had been convicted of terrorist offences in Djibouti and sentenced to 15 years imprisonment. Transcripts of intercepted telephone calls dated 5 March 2009 helped secure the conviction; however, the transcripts were misdated. The calls, in fact, took place on 4 March 2009, which made his conviction uncertain.   

The misdated transcripts were again relied upon in 2013 as part of extradition proceedings. On 23 August 2013, a member of Gray’s team alerted him to the dating error.

He spoke with counsel and later sent an email to his team saying: “We can get away with the error”. Meeting minutes also noted Gray said they could “fudge” the dating issue, though he denied saying this. 

At a September 2013 freezing injunction hearing, Mr Justice Flaux (as he was then) decided, based on transcripts, it was “arguable” Boreh was a terrorist and granted the injunction. 

By this stage, Gray had signed a third affidavit, which “failed to mention or address the fact that the conviction was predicated on the erroneously dated transcripts…”. 

Almost a year later, opposing counsel raised concerns with GD&C that the court had been misled. Correspondence ensued, which claimed Gray and counsel were not “alive” to the date discrepancy at the September 2013 hearing.

In November 2014, Gray swore a fourth affidavit which said: “Given the enormous volume of internal email traffic and the number of lawyers involved in the overall matter, it would be a significant task to work out who exactly knew what and when.” 

He said he didn’t believe such an exercise would prove useful, he was “confident” no lawyer had intentionally misled the court and apologised for any “inadvertent” error in his affidavit. 

Flaux J, however, did not agree an investigation would be futile; he ruled he had been inadvertently misled, an internal investigation was required and the terrorist conviction was unsafe. 

Later that day, Gray text counsel: “…turns out I was told about the error in august. I completely forgot about it… I can see that I will be accused of all kinds… ”

In January 2015, the freezing injunction was set aside due to Gray deliberately misleading the court. Flaux J said: “He claimed… the whole thing had slipped his memory, which I found difficult to accept”. 

At his subsequent SRA hearing, Gray applied to have the tribunal conducted in private, and said he intended to rely on privileged and confidential documents. 

This SDT refused and said privilege did not equate to an absolute right for a hearing to be conducted in private – exceptional prejudice and/or hardship had to be shown, and this had not been established in respect of Djibouti or Gray.  

Gray submitted 20 character references and asked that three witnesses give oral testimony. SRA counsel opposed this as she did not intend to cross-examine the witnesses. However, the SDT granted the “highly unusual” request and said Gray should be allowed to submit evidence as he wished.

Gray told the tribunal he was “brutally overworked” and “utterly exhausted” at the time of the Djibouti proceedings and he did not realise the court was being misled.  

The tribunal acknowledged his “undermanned” team, long hours and extensive travel, but did not accept this justified him failing to ensure the court was not misled.

The tribunal concluded he had been aware of the error and, despite others being aware, it was ultimately his responsibility as matter partner. Due to the seriousness of the misconduct, Gray was struck off and ordered to pay £42,525 costs.