Treo Noal GP S.à r.l & Ors v Stefan Emanuel Kowski & Ors

Web: www.martenwalshcherer.com MRS JUSTICE O’FARRELL:

1. This is a disclosure guidance hearing following a CMC in this case on 2 February 2026.

2. There is no need for me to repeat the background, which I set out when making rulings at the last hearing and which is summarised very helpfully by the parties in their case memorandum and list of common issues and matters in dispute.

3. I start by setting out the general principles that are applicable to disclosure, particularly in a case of this kind, to which PD 57AD applies.

4. The general principles are set out at paragraph 2: “2.1 Disclosure is important in achieving the fair resolution of civil proceedings. It involves identifying and making available documents that are relevant to the issues in the proceedings. … 2.4 The court will be concerned to ensure that disclosure is directed to the issues in the proceedings and that the scope of disclosure is not wider than is reasonable and proportionate in order fairly to resolve those issues and specifically the issues for disclosure. … 2.7 Disclosure extends to adverse documents. A document is adverse if it (or any information it contains) contradicts or materially damages the disclosing party’s contention or version of events on an issue in dispute, or supports the contention or version of events of an opposing party on an issue in dispute, whether or not that issue is one of the agreed issues for disclosure.”

5. The principles that are applicable to issues of extended disclosure include the following: “6.4 In all cases, an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective including the following factors—” (1) the nature and complexity of the issues in the proceedings; (2) the importance of the case, including any non-monetary relief sought; (3) the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence; (4) the number of documents involved; (5) the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any costs estimates); (6) the financial position of each party; and (7) the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost. … 6.6 The objective of relating Disclosure Models to Issues for Disclosure is to limit the searches required and the volume of documents to be disclosed. Issues for Disclosure may be grouped. Disclosure Models should not be used in a way that increases cost through undue complexity. 6.7 It is important that the parties consider what types of documents and sources of documents there are (or may be), including what documents and another party is likely to have in order that throughout a realistic approach may be taken to disclosure.” Disclosure Issue 4

6. With that introduction, I turn to the first issue in dispute, which is issue 4. The claimants’ proposed issue is: “What, if any, involvement did each Defendant have in the making of the 1 February 2019 Recommendation Letter (and its exhibits)?”

7. As Mr. Robb, counsel for the claimants, has explained, this is a pleaded issue in the case. It is alleged that the defendants made fraudulent representations, including by way of the letter of 1 February 2019. It is said that that amounted to a combination giving rise to the unlawful means conspiracy allegations, namely that the defendants procured the false representations made in this letter.

8. Those allegations are in dispute. This is a key issue in the case, and it currently is not admitted, in part or at all by the defendants. Therefore, I am satisfied that the involvement of the defendants in the making of the letter is a pleaded issue.

9. It is said by Mr. Slingo, Mr. Morrison and Mr. Hubbard for the defendants that (i) it is not a pleaded issue that goes beyond the signing off of the letter by the defendants, which is admitted; and (ii) there is overlap with a broader issue already defined, namely, issue 7 in the DRD.

10. As to (i), the signing off of the letter, it seems to me that that is separate from the issue of whether the representations in the letter were procured by the defendants. Therefore this does give rise to a separate issue.

11. As to (ii), the overlap, I agree with Mr. Hubbard’s submission that the list of issues in the DRD is somewhat convoluted and probably descends to greater detail than in fact is necessary in this case. If we were starting from scratch, I would be in favour of identifying the disclosure issues at a much higher level so as to reduce their number and make the document much simpler. However, that is not the approach that any of the parties have adopted to date, and it would cost too much, take up too much time and be unhelpful for the court to suggest that the parties go away and restart the exercise.

12. Given where we are, I am not satisfied that issue 4 is necessarily encompassed by issue 7, and I consider that it is an appropriate issue for disclosure. This is a high-value, very serious case against three individuals. It is important that disclosure covers all of the key issues in this case. Therefore I will include it as proposed by the claimants. Disclosure Issue 9

13. Having listened to all of the helpful submissions from each of the parties, the court reaches a decision on issue 9, which should be formulated as follows: “(a) Did the defendants believe that the NoA representations were true on 14th February 2019? (b) During the period 14th February 2019 and 17th June 2019, did the defendants become aware that the NoA representations were untrue by reason of the facts pleaded in paragraph 102 of the particulars of claim?”

14. In the light of that, issue 18 will be struck out of the DRD. Disclosure Issue 10

15. Issue 10 is framed as the following question: “Did the LPs rely on the NoA Representations (insofar as they were made)?”

16. The claimants are happy to give disclosure on Model D. The defendants all oppose giving any disclosure themselves, for a variety of reasons.

17. The starting point for the court is that this is a pleaded issue. At paragraph 103 of the particulars of claim, in terms, it pleads: “As was intended by the defendants, the LPs were induced by the NoA Representations to believe that the rumours and criticisms of NSO were baseless and unjustified and that proper due diligence had taken place to ensure that all material matters had been fully and properly investigated as to be confident that the acquisition of NSO was a suitable investment for the fund.”

18. I have been taken by Mr Hubbard to some of the more convoluted ways in which the claimants put their case by reference to a counterfactual and indeed, potentially, an alternative counterfactual. I agree that that does cloud the issue. Nonetheless, there is a clear pleaded issue that the LPs relied on the NoA representations, and that is the issue that gives rise to disclosure in this case.

19. As to whether or not it is simply a matter for disclosure by the claimants, I consider that it should be given by all parties. Although I accept that the primary source of reliance by the LPs must be their only internal documents setting out what views in fact the LPs held, nonetheless, reliance could also be evidenced by the contents of external documents, communications between the LPs and others, that explain exactly what the LPs thought and whether or not in fact they were relying on those representations. It is likely that there will be documents that will respond to a search carried out by both the claimants and the defendants.

20. There are some additional issues that might arise. One is whether one or more of the defendants in fact holds no documents. If that is the case, when the appropriate search terms are applied, no documents or very few documents will be returned. That can be dealt with by way of a simple response that there are no documents. But I think the search should be made. This is a key issue in the case, because if there was no reliance on the representations they do not give rise to a claim.

21. There is also a pending issue that the court may well be asked to resolve, which concerns whether or not the claimants are, as they plead, the legal embodiment of the LPs; if so, whether they are deemed to be in control of the documents; alternatively, whether the court should make a separate order for disclosure against the LPs in those circumstances. That is not a matter that the court is required to decide at this stage but, in any event, it would not detract from the need for those who are definitely parties to the claim to be asked to carry out a search on this key issue in the case.

22. For those reasons, I am satisfied that the issue is a proper issue, it is a pleaded issue and disclosure should be given by all parties. Disclosure Issues 13 and 14

23. Issues 13 and 14 both relate to what is referred to as the Dahbash payment. It is not in issue there was an agreement under which Mr. Dahbash was paid the sum of US$5 million. The issue is whether, as pleaded by the claimants, that it was in fact a bribe or whether in fact it was a payment for services rendered.

24. It is pleaded at paragraph 126 of the particulars of claim that it was a bribe made in order to induce Mr. Dahbash to breach his duties to NSO and/or its shareholders, and/or unlawfully to facilitate the proposed acquisition of shares in NSO.

25. At paragraph 127 it is pleaded that: “… it is inferred that the Dahbash Payment was made in order to induce Mr Dahbash: 127.1. to pass, or facilitate the passing, to Novalpina information of a confidential and/or business sensitive nature regarding (i) what Francisco Partners would require in order to agree or consider agreeing a sale and (ii) when a bid should be made in order to maximise the prospects of success; and/or 127.2. to persuade Mr Hulio and other NSO managers to oppose the contemplated acquisition of NSO by Verint, in or around May – July 2019.”.

26. That is the nub of the issue. It is clearly a significant issue in relation to the question of whether or not there was a bribe paid to Mr. Dahbash; if so, with what consequences.

27. Issue 13 is largely agreed, but subject to proposed additions by the claimants. The agreed part is: (i) “What was the purpose of the engagement letter and the Dahbash payment?” (ii) “Insofar as they were aware of the same, what was the defendants’ understanding of their purpose?” and (iii) “What services did Mr. Dahbash provide?”

28. To that the claimants seek to add the words to the first part: “How did it come to be negotiated or agreed?” And to the second part: “How was the purpose discussed internally at the Novalpina Ias?”

29. I prefer the formulation by the first defendant, which I think is agreed by the other defendants, on this issue. It is clear and simple. I consider that the focus should be on the purpose of the engagement letter as opposed to peripheral issues as to how it came to be negotiated or agreed, which do not go to purpose.

30. It is not in dispute that there was an engagement. No doubt it will have been negotiated or agreed, but the real issue was whether its purpose was a legitimate one of provision of services or whether it was, in terms, a bribe. That is covered by the first part of the issue. In relation to the second part, again the focus should very much be on the defendants’ understanding of the purpose as opposed to whether or not there were any discussions about it. Insofar as discussions go to purpose, of course, they will be caught by the relevant search terms against that issue.

31. In relation to issue 14, again there is a large measure of agreement. It is now agreed that the first defendant’s formulation, with a potential tweak, is appropriate. The formulation is: “What was Mr. Dahbash’s relationship with Francisco Partners, and the defendants’ knowledge, if any, of that relationship?” That is clearly an appropriate issue for disclosure, given the pleaded case. The only issue is whether after the word “Francisco Partners” there should be the addition of the words “and NSO and its group companies”.

32. Given the reference to the pleading I have recited a short while ago it is clear that the inclusion of “NSO and its group companies” is appropriate because it is a pleaded issue. Therefore, issue 14 is the defendants’ formulation with the addition of sub-paragraph (b) in the claimant’s formulation. Disclosure Issue 15

33. Issue 15 is formulated as: “What was the knowledge of Mr. Dumont, Mr. Foley and Mr. Mizzi regarding the acquisition of NSO?”

34. It is agreed that the claimants should give disclosure in relation to this item on Model D, but the defendants have proposed that their disclosure should be on a Model B basis, by reference to the fact that Mr. Dumont and Mr. Foley are already custodians and therefore their documents will be the subject of a search.

35. The issue arises because these three individuals were managers of Novalpina GP which was the fund’s general partner until August 2021. The claimants make a valid point that their knowledge regarding the acquisition of NSO is likely to be found, not just in their own personal documents held in the repository and/or the devices that are searched, but also by other external documentary evidence such as minutes of meetings, notes of telephone calls, and other external documents that might cast light on their knowledge at the relevant time. For that reason, I consider that Model D is the appropriate one to use.

36. However, I take a different view with regard to Mr. Mizzi, who was not a professional director. In those circumstances, the issue should be modified so that it is concerned with the knowledge of Mr. Dumont and Mr. Foley regarding the acquisition of NSO. As I understand it, there has been a proposal that Mr. Mizzi can be included as a custodian. I think the focus should be on the knowledge of the professional directors not a non-professional director. Disclosure Issue 17

37. Issue 17 has been formulated by the second defendant as: “What new governance controls were implemented by NSO between the 14 February 2019 and September 2019?”

38. This arises as a result of a pleading in the second defendant’s defence which is: “Following entry into the SPA, the Novalpina IAs took steps to announce the transaction to the market and LPs, to finalise the financing for the deal, to engage with NGOs to address their concerns, and to work with NSO’s management to implement improved governance processes which were in line with the UN Guiding Principles.”

39. The paragraphs that then follow set out details as to the engagement that then took place leading up to the implementation of a new HR policy and government framework.

40. It is not in dispute that that new policy and government framework was implemented, so there is no issue as to that. However, there may well be an issue as to the level of engagement that the second defendant has said he undertook, leading to whether or not his belief as to the appropriate safeguards was justified.

41. It seems to me that, as framed, the issue is simple and straightforward. It is concerned with the new controls that were implemented. As to that, the issue is an appropriate issue for disclosure but a narrow one. I consider that both the claimants and the second defendant should give Model B disclosure. It should be a fairly straightforward matter of record what documents they each rely upon in support of the position that they take. Of course, disclosure must be given of any adverse documents and any further documents to explain their position. It does not really need to go any further. The first and third defendants do not need to give disclosure on it.

42. It may well be that that disclosure prompts further questions or calls for documents, but as currently pleaded, it is an issue for disclosure, albeit a fairly narrow one. I am not prepared to re formulate it or to order Model D disclosure because I think that would be disproportionate given its relatively low level of importance in the case overall. Disclosure Issue 19

43. Issue 19 is agreed as an issue, namely: “What was the value of NSO over time during the period 2019 to 2023.”

44. The dispute before this court surrounds whether or not disclosure should be given on Model C or Model D, or a combination of both Model C and D.

45. The issue arises because the claimants have pleaded that as at 2019, when the claimants acquired NSO at a cost of some €218.5 million, in fact, the company was valueless. Its value was based on an unsustainable basis, in that its business model depended on sales to high-risk customers, a matter that would eventually, and the claimants say inevitably, become public knowledge and therefore result in a crash in the public value of NSO.

46. The defendants’ case is that the opposite is true. Their position is that NSO was perfectly sensibly valued at the time of its sale but that following the removal of Novalpina GP as a GP in 2021, the value of the Fund became contentious. The “Removal Entitlement” of the Novalpina’s GPs under the LPA depended on the total value of the Fund assets, including any interest in NSO. As a result, there was a real interest for some in keeping the value of NSO as low as possible. Therefore, those circumstances gives rise to different issues in respect of the true value of NSO between 2019 and 2023.

47. The claimants’ position is that the parties on both sides should give Model D disclosure. The defendants’ position is that it would be appropriate for the claimants to give Model D disclosure but that the defendants should give Model C disclosure. The proposed Model C requests identify the relevant valuation reports, financial statements and other documents that would be disclosed or the subject of searches by the defendants. It is said that that would indicate the value of NSO for the duration of the whole period.

48. One of the points made by the defendant is that, post the 2021 removal of the GPs, they do not have any relevant documents. If that is the case that can be easily dealt with; following the search, they can simply state that they do not have any documents to disclose.

49. The claimants’ position is that if Model C is to be used it should be used for both sides. Further, they identify additional supporting documents or documents that it is said undermine the public valuation and should be included as part of the search. The obvious difficulty with that, the defendants say, is that is not sufficiently precise, so as to merit a Model C request.

50. The court takes the view that the true value of NSO between 2019 and 2023 is clearly in issue for different reasons on the pleadings. It is a significant issue, and it would be appropriate for Model D to be given by all parties.

51. The submissions before the court today have simply served to underline the fact that it is very difficult to identify documents that could precisely be defined for the purposes of a Model C request. It would not be sufficient to confine a Model C request to the usual financial documents that one would normally rely upon for the purposes of valuation because all parties, for different reasons, dispute the public value of NSO. Therefore, it is necessary to examine the underlying documents that support or undermine the publicly stated value of NSO during the relevant period. For those reasons, Model D disclosure should be given by all parties. Disclosure Issue 28

52. Disclosure issue 28 has two competing formulations. The formulation proposed by the claimants is relatively short: “(a) How did the Convexum Loan come to be made in October 2021, and why was it made? (b) Did the Fund demand repayment of the Convexum Loan? If so why? (c) Why did Convexum go into insolvency? ”

53. The first defendant proposes a longer formulation with additional questions, including: “How did Convexum come to be an investment of the Fund, distinct from the Fund’s investment in NSO? How did the loan come to be made in October 2021? Did the Fund demand repayment of the loan? If so, why? Why did Convexum go into insolvency? How did the fund come to reacquire Convexum in or around July 2022?”

54. The first defendant identifies a further issue: “What has been the value of Convexum over time from the date of its acquisition by NSO onwards?”

55. The issue surrounding Convexum is that the first defendant raised in his defence a plea that the claimants should give credit for the value of Convexum when sold, as it has been sold recently. The history is that Convexum was acquired but kept as a separate investment. A loan was made and it is said by the defendants that it was deliberately mismanaged into insolvency. It was then repurchased out of insolvency in 2022, enabling the claimants to realise its true value.

56. The claimants’ position is that any profit made from Convexum is a matter that is res inter alios acta , that is it does not have to be brought into account in order to offset the damages that it would otherwise be seeking for the absence of any value in NSO.

57. The defendants’ response to that, which I accept is raised on the pleadings but in a rather tortuous fashion, is that the loan insolvency and repurchase were all a device to avoid it being brought into account. On that basis credit should be given for it.

58. This is a significant issue because if the Convexum value is brought into account then, certainly as far as the defendants are concerned, it would extinguish most if not all of the claim. In on the other hand the claimants are correct, then it means that the value of their claim is very substantial indeed.

59. I am satisfied that given the significance of this issue that it is a proper issue for disclosure.

60. I consider that the first defendant’s proposed formulation, with the adjustment that has already been made to part (c), is appropriate and proportionate in the circumstances. It raises a series of appropriate questions that are designed to interrogate the overall process of the Convexum loan insolvency and repurchase, together with its general management over time. I consider that it is therefore a reasonable and proportionate issue for disclosure to include. Disclosure Issue 30

61. Disclosure issue 30 has been recently revised by the claimants and the second defendant, so that it now reads: “Were the LPs naturally sensitive to ESG or reputational concerns and adverse to investment which might raise such concerns? Were the LPs or a majority of them opposed to the Fund holding investments which were potentially liable to give rise to major ESG and/or reputational concerns?”

62. The first and third defendants resist inclusion of this on the basis it is not a significant or material issue and in so far as it an arises it is already covered by earlier issues 2 and 10 in the DRD.

63. The court is satisfied it is a pleaded issue. It is included in the agreed list of the disputed issues and it is a material factor, both in terms of what was in the minds of the LPs, whether or not the defendants knew that and whether or not they misled the LPs in relation to NSO. In those circumstances, I consider that it is an appropriate issue for disclosure. I consider that it is significant and therefore it should be Model D for all parties.

64. I understand that there is a separate issue not yet before the court as to whether an order for disclosure should be made against the LPs directly and/or whether or not the LPs’ documents might be under the control of the claimants and/or the defendants at any particular time. However, for current purposes, the court is satisfied that there will be some documents held by someone who is a party to these proceedings, and the nature and scope of any dispute regarding the LPs themselves can be dealt with hereafter. Disclosure Issues 31 and 32

65. Issues 31 and 32 formulated by the claimants but disputed by the defendants are: “What (if any) potential investments in the cyber-security industry did the Defendants consider before 15 November 2017? “Why did the PPM not identify the cyber-security industry as an indicative area of potential investment?”

66. The proposed issues are disputed by the defendants on the basis that they are not legitimate issues for disclosure.

67. I agree with the defendants. The pleaded unlawful means conspiracy is that on a date or dates unknown to the claimants but on or about 15 November 2017, the defendants combined with intent to injure or harm the interests of the claimants by use of unlawful means, by advising encouraging and ultimately assisting the Fund and its relevant subsidiaries to commit to the acquisition of NSO, in circumstances where the defendants well knew that such an investment and acquisition was not in the fund’s best or any interests.

68. The basis on which it is said that there was unlawful means comes down to the pleaded alleged fraudulent misrepresentations, on 1 February 2019 and 14 February 2019; further or alternatively, the alleged bribe or success fee of Mr. Dahbash.

69. When one is considering those matters, whether or not the defendants carried out any alternative investigations into potential cyber-security investments in 2017 is peripheral to the key issues. The key issues are whether there was a combination, a decision to harm the interests of the claimants using unlawful means; if so, whether those unlawful means in fact came into being through the alleged misrepresentations and/or bribe leading to the investment in NSO.

70. The investigation into the cyber-security industry is not a significant issue for disclosure, albeit that it may well form part of the evidence and cross-examination in the trial in due course.

71. For those reasons, I do not consider that it would be reasonable or proportionate to include either of those issues. - - - - - - - - - -