HH Sheikh Mohammed Bin Rashid Al Maktoum v. HRH Princess Haya Bint Al Hussein & Ors

The Cyber Blog IndiaCase Summary

Whether non-disclosure of sensitive data attributing hacking using Pegasus amounts to procedural unfairness in a case of children's safety and custody?

HH Sheikh Mohammed Bin Rashid Al Maktoum v. HRH Princess Haya Bint Al Hussein & Ors
[2021] EWCA Civ 1216
In the Court of Appeal, Civil Division
Case B4/2021/0833
Before Sir Julian Flaux, Lady Justice Macur, and Lady Justice King
Decided on August 05, 2021

Relevancy of the Case: Whether non-disclosure of sensitive data attributing hacking using Pegasus amounts to procedural unfairness in a case of children’s safety and custody?

Statutes and Provisions Involved

  • The Family Procedure Rules 2010 (Part 25)
  • The Adoption and Children Act 2002 (Section 47)
  • The Civil Procedure Rules 1998 (Rule 54, 12, 16, 22, 31)

Relevant Facts of the Case

  • The case is an appeal against a case management decision concerning the appellant, the defendant, and their children.
  • In the management case, the President of the Family Divison of the High Court of Justice refused to order the disclosure of data to an Israel-based confidential adviser. This was because of the consideration that the UK Family Courts would have no jurisdiction.
  • The earlier management decision refused to disclose data to the appellant about hacking carried out on the defendant, and her, two of her solicitors, her assistant, and two security staff members using Pegasus software developed by an Israel-based company called the NSO Group.
  • In the earlier case, the President also found that the hacking was carried out on the appellant’s instructions. Further, the court had assured to look fairly upon the appellant’s request to disclose data to an expert based in the UK.
  • In the present case, the appellant has approached the Court of Appeal, claiming that the High Court’s finding that the hacking was done by him was unfair. He contends that the court did not disclose the data and the victims’ list used by the expert to affirm the attribution.

Prominent Arguments by the Advocates

The appellant’s counsel argued three grounds for the appeal.

  • First, the High Court’s finding that the hacking was done with Pegasus software was procedurally unfair. This finding relies on Dr. Marzak and Professor Beresford’s evidence. The appellants did not have access to this evidence.
  • Second, the appellant could not access Dr. Marczak’s victims’ list. According to this list, the UAE and the appellant were responsible for hacking. If he could access the list earlier on disclosure, he could provide that another state or individual was behind it. This would have weakened the respondents’ case.
  • Third, the President’s overall assessment of the UAE and the appellant is questionable.
  • The counsel also relied on two well-known cases where the courts barred expert evidence.

The respondents’ counsel:

  • He argued that the court should not allow the appellant to attack the long-established principles on the role of expert evidence. He further underlined that the present and cited cases are not similar. The question before the court is on the fairness of the process, not whether it was adversarial.
  • The appellant has not explained his refusal to take the Part 25 route. The appellant has no explanation for not having an effective opportunity to respond to the allegations.
  • It was up to the Court of Appeal to determine the procedural fairness.

Opinion of the Bench

  • If the President’s case management decision is fair, the appellant cannot refute the conclusion. He was directly or indirectly responsible for the hacking that the President discovered.
  • The President has noted the extreme sensitivity of the data involved. The President was willing to give the appellant full access to data, provided he followed the standard approach to testing expert evidence in children’s cases. This would involve filing a Part 25 application with openness.
  • The appellant had an effective opportunity to test the evidence. It was his responsibility since he was not ready to comply with the procedural requirements of the British courts. This was after he chose to submit himself to this jurisdiction.
  • The President has clearly stated that he did not rely on Dr. Marczak’s testimony on attribution. The appellant’s arguments present just a minor problem. These arguments do not come close to meeting the required level for overturning the President’s findings.

Final Decision

  • It is safe to conclude that the appellant or his servants/agents used the Pegasus software to hack the respondents’ and their associates’s phones.
  • The bench dismissed the appeal on all grounds.

Anjini Pandey, an undergraduate student at Dr. Ram Manohar Lohiya National Law University, and Linet Christina Thomas, an undergraduate student at Lords Universal College of Law, prepared this case summary during their internship with The Cyber Blog India in May/June 2022.