A High Court judge has been persuaded that an expert witness could be at “real risk of harm” if their identity becomes public in cases brought by aircraft lessors over insurers’ alleged refusals to pay out over the detention of €2.5 billion worth of planes in Russia.
Mr Justice Denis McDonald acceded to the Dublin-based lessors’ request for the expert’s evidence to the court to be heard “in camera”.
He directed that all identifying material should be redacted from the expert’s “very detailed” report covering events that have occurred within Russia in the aftermath of its invasion of Ukraine.
In light of a United Nations special rapporteur report, the judge concluded, it is “obvious” the expert’s interests could be adversely affected if linked to the contents of their material.
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The UN collation of sources suggests Russian authorities will sometimes resort to extrajudicial methods to exact retribution, which is not something that can be ignored at this stage, the judge said.
Given the nature of the risk and the expert report contents, he said, there was an “objectively justifiable basis” for protecting the expert’s identity.
The 145-page report deals with decisions allegedly taken by Russian authorities and how those decisions are allegedly expected to be obeyed and effected even in advance of formal laws, he said. Mostly based on open sources of information, it also provides “extensive” material about Russian authorities’ alleged expectations and requirements regarding the aircraft at issue in these court cases, the judge said.
In a statement delivered to the judge in a sealed envelope, the expert expressed “serious concern” about a safety risk that could arise if their identity and the content of their report became known, said Mr Justice McDonald.
The expert is being called by lessors involved in six identical sets of proceedings that are listed for trial together on June 4th over alleged refusals by various international insurers to indemnify for the loss of planes. The insurers deny the “all risks” or “war risks” policies were engaged or that payouts are due.
The lessors allege sweeping EU sanctions imposed after Russia invaded Ukraine forced them to terminate lease agreements in Russia and they could not retrieve their aircraft.
In his redacted ruling, Mr Justice McDonald said only the “war risk” policies are relevant to this expert’s evidence. The “all risks” insurers did not oppose the application for redaction and anonymisation.
Fidelis Insurance Ireland DAC, Fidelis Underwriting Limited and Fidelis Insurance Bermuda Limited, who are among the “war risks” insurers, took a “lead role” in opposing the request, he said.
The judge said some of Fidelis’s concerns have been ameliorated by the lessors’ agreement to permit limited circulation of identifying material about the expert to a “confidentiality club” comprising lawyers and nominated officers of the insurers. The lessors have also agreed to allow nominated officers to observe the expert’s evidence at trial.
The judge said Fidelis “strongly” opposed anonymisation and the application to have the expert’s evidence given “otherwise than in public” at trial. The insurer said the expert has already been involved in public events and published material expressing views that denigrate the Russian regime.
Fidelis submitted that other cases concerning Russian issues have involved experts giving open evidence critical of the Russian regime and judicial system. There is also a “general public interest” in an expert’s identity being known, it contended.
It and Lloyd’s Insurance Company S.A., supported by Convex Europe S.A. and AIG Europe S.A, argued the evidence before the court went no further than asserting a lack of availability of an alternative witness, said the judge.
The lessors argued that justice is best served by the court having access to what the parties consider to be the best evidence to assist on certain issues. It is essential that witnesses can give evidence freely without fear of consequences, they submitted, pointing to the Constitution and the European Convention on Human Rights.
Mr Justice McDonald said he is “mindful” of the constitutional provision that justice “shall be administered in public”.
He said open information sources in the report – much of which he suspects could only be identified by someone with substantial expertise – are deployed very skilfully. He concluded that earlier materials authored by the expert are not nearly as detailed as this report.
The judge could not identify any less restrictive way of protecting the expert other than hearing it otherwise than in public. Simple anonymisation orders would not be sufficient, he said, as the expert could be recognised by someone in the courtroom.
His orders only apply to this witness and the rest of the trial and evidence will be in public.
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