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June 4, 2025
HIGH COURT (KING’S BENCH DIVISION - COMMERCIAL
United Kingdom
The Claimant, PIFSS, seeks to make amendments to its claim based on Article 102 (2) of the Swiss Penal Code. The claim under Article 102 (2) was first made some time ago, in an early version of PIFSS’ Re-Amended Particulars of Claim (or “RAPOC”). It led to a Request for Further Information (“RFI”) served in May 2021, and a response providing Further Information (“FI”) in June 2021. The version of the RAPOC which contains PIFSS’ currently pleaded claim, for which permission to amend was given early in the trial which commenced in March 2025, is known as the 7RAPOC: the number 7 representing the number of re-amendments. PIFSS’ latest amendments are contained in the draft 8RAPOC, and they incorporate proposed amendments to the FI served in June 2021.
The 15 th – 19 th Defendants, against whom the application to amend is made, are various companies in the group of companies referred to (for simplicity in the present trial) as “Man”. PIFSS’ principal case against Man is that it was knowingly involved in a corrupt scheme whereby secret commissions were paid to the then Director General of PIFSS, Mr Al-Rajaan. The payment of these commissions involved the payment by Man of monies to an intermediary, Mr Mohammad El Ghazzi (the 21 st Defendant). Substantial sums were then passed by Mr El Ghazzi to Mr Al-Rajaan. There is a major issue in these proceedings as to whether any relevant individual at Man knew that sums of money were finding their way to Mr Al-Rajaan.
PIFSS’ case based on Article 102 (2) is by no means the central argument which PIFSS advances in order to establish liability on the part of Man. Its relevance, as Mr Leslie explained when he opened this aspect of the case, is that it is a route to defeat Man’s reliance on a limitation defence said to be available under Swiss law. There is a substantial dispute as to whether Swiss law applies to the claims against the various Man companies. PIFSS’ primary case is that Kuwaiti law is the governing law.
Article 102 (2) is in a criminal statute. However, PIFSS contends that an infringement of this Article can give rise to civil liability, although there are substantial issues between the Swiss law experts as to whether that is correct. Those issues do not arise on the present application.
The case on Article 102 was originally advanced in an unparticularised form. It alleged that “those Defendants that are corporate entities will incur criminal liability under Article 102 (2) SPC [Swiss Penal Code] for br
AI Generated Summary
This High Court judgment addresses two amendment applications and evidential guidance in lengthy fraud proceedings involving the Public Institution for Social Security (PIFSS). First, PIFSS sought to expand its claim against Man Group entities under Article 102(2) of the Swiss Penal Code via amendments to its RFI and 7RAPOC. The court held the application was very late, lacked any good reason for delay, and would prejudice Man by necessitating different factual and expert compliance evidence and disrupting the interplay between expert and factual cases; permission to amend was refused, and the existing Article 102(2) case proceeds on current evidence. Second, in the Pensée Foundation matter, the court permitted PIFSS’s amendments expressly pleading that Pensée held assets on trust for Mr. Al‑Rajaan, confirming that pleadings need only state material facts and that the court may consider oral arrangements and subsequent conduct beyond the written Pensée Agreement. The court also issued pragmatic guidance on cross‑examination scope concerning Hugues Lamotte, other Deltec personnel, the falsity of later documents, and whether the arrangements resembled legitimate nominee arrangements, imposing fair limitations without a formal order.