The Cs were a Saudi Arabian property development company and a Bahraini bank with common shareholders and directors. D1 was the bank’s former Chief Executive Officer and Managing Director. He had since his dismissal been involved in a protracted dispute with the bank, involving criminal and civil proceedings in Bahrain in which he had been convicted of offences including embezzlement and misuse of funds, destruction of documents, forgery and money laundering.
D1 had engaged Kroll (D2), an accountant (D3) and FTI (D4) to assist him in his dispute with the Cs. Cs alleged that the Ds had waged a campaign intended to damage and ultimately destroy them, culiminating in the creation of a website (and circulation of an email publicising it) entitled ‘Dar Al Arkan Crisis’, which contained numerous allegations defamatory of the Cs and hundreds of their internal documents. Cs brought claims against the Ds including defamation, malicious falsehood, breach of confidence, conspiracy, breach of (and procuring breach of) contract and unlawful interference with business. Cs estimated their losses as a result of the Ds actions at around $500m.
The Ds each denied liability. FTI’s case was that it it had merely provided D1 with PR and media-related services, and that its purpose and intention had been only to defend and protect D1 in the media. It denied any liability for the website or email, asserting that it did not compose either and had never had possession of the internal documents published on the website. However there was no dispute that a senior managing director at FTI, H, knew that D1 had information adverse to the Cs in his possession, and had discussed with the other Ds using the internet to get that information into the public domain, suggesting the use of a blog site. H had received a draft structure for the website from D2 containing the gist of the allegations to be made against C, and had participated in a further discussion about it with the other Ds. H’s evidence was that these discussions were hypothetical only, and that that was the extent of FTI’s involvement prior to the launch of the website. H asserted that the website came as a surprise to him, and that he did not know that the other Ds were responsible for it, although he admitted assisting them in promoting it to the media.
FTI applied for summary judgment in respect of parts of the claims against it, primarily in respect of its alleged liability for the website and email.