Autonomy founder's anti-extradition case is like saying Moon made of cheese, US govt tells UK court

Lynch fears US.gov will add yet more charges against him

Autonomy Trial Mike Lynch has branded a judge's decision to not delay the process deadline for his extradition to the US on allegations of fraud as "perverse" and "irrational" – while the US government said his legal arguments were like saying "the Moon is made of cheese."

The one-time chief exec of British software firm Autonomy wants to delay a court deadline for extraditing him so that British Home Secretary Priti Patel can read a 1,500-page judgment from a civil High Court case that he hopes will go in his favour. To do this he filed a judicial review against a court decision effectively ordering his extradition.

Patel must confirm (or deny) Lynch's extradition within a court-dictated timeframe – but legal delays elsewhere have left the entrepreneur looking closer than ever to being put on a flight to America.

"There was nothing irrational about declining to add a further five-month delay," said the US government's legal team, opposing Lynch's judicial review.

I just got here – what's it all about?

In 2011, HP bought Autonomy, a maker of software to keep track of unstructured data, founded by Mike Lynch in the UK, for $11bn.

After the buyout, the US IT titan wrote down the value of Autonomy by $8.8bn, claiming the British firm had "misrepresented" its value. Lynch, Autonomy CEO at the time of the biz gobble, denies this.

HPE is now suing Lynch and Autonomy financial chief Sushovan Hussain at the High Court in London, seeking $5bn in damages. Over in the States, prosecutors are pursuing a separate criminal fraud case against Lynch and Autonomy bean-counter Stephen Chamberlain. All three men deny any wrongdoing.

Court papers* obtained by The Register reveal Lynch's judicial review, which had an initial hearing in mid-December, rests on four grounds. He wants to overturn a decision of District Judge Michael Snow, of Westminster Magistrates' Court, refusing the Home Secretary a five-month extension to her decision deadline.

Lynch's legal team says DJ Snow made a "perverse, irrational" decision when he refused to extend Patel's decision-making deadline on the extradition case. He also argues the district judge ignored Patel's wish to wait for the civil trial's judgment before deciding whether or not to extradite the ex-Autonomy exec.

If civil trial judge Mr Justice Hildyard rules Lynch did not cook Autonomy's books or deceive HP into paying him (and others) an overinflated sum for the company, it could be a powerful argument against extradition to HP's home country.

Additionally, the Darktrace founder claimed the High Court's judgment could trigger the US Department of Justice to add fresh criminal charges against him. Therefore, he argued, the extradition case should be delayed to respect the principle of specialty.

What is specialty?

Specialty is where countries promise not to add fresh criminal charges after extraditing a wanted criminal suspect. Nations which do this might (so the principle goes) otherwise hide their true motives for wanting the suspect. It's supposed to guard against politically motivated extraditions.

Unimpressed with this, the US government's legal team told the court Lynch's team had said...

… that there is a real risk that the US Department of Justice will wish to add further charges against him [and the SSHD] has been told that Hildyard [J]'s judgment will be highly relevant to that question… there is a real risk that US prosecutor will seek to bring new charges or substantially alter the charges on the basis of the evidence that comes out of the civil trial

Complaining they hadn't seen the full arguments by Lynch's people about specialty, the US then said his case was nonsense: "Precisely how it could be rationally thought that receipt of the civil judgment in this case would cause the US DoJ to add 'further' criminal charges, was never (and still is not) explained. Charges for what? Based on what 'evidence'?"

More extensions?

Lynch may be running out of luck with the extradition case and his judicial review alike. Having supported multiple previous deadline extension requests which DJ Snow granted, the Home Secretary acknowledged the judicial review but "does not express a view… and will not be participating in it", as her lawyers told the court.

Barristers Alex Bailin QC and Aaron Watkins, for Lynch, argued that DJ Snow had misdirected himself in law when refusing the deadline extension. They quoted Snow as having said the "problem in this case is its history", saying this was proof he applied a false legal test that everything had to be "in the interests of justice" when he ruled against Lynch.

The US government, represented by Mark Summers QC and Rachel Barnes, argued in written submissions that Lynch's judicial review ought to be thrown out. In a colourful passage they said it was like asking Patel to delay extradition because "the Moon is made of cheese", saying his arguments "lacked all substantial merit".

Lynch faces 17 criminal charges of fraud and conspiracy in the US federal criminal courts. He is charged alongside ex-Autonomy vice president Stephen Chamberlain. The judicial review and extradition proceedings are both continuing.

The High Court case, the Autonomy Trial, is one of the highest-valued civil fraud cases in English legal history, being a claim for £3.3bn ($4.51bn) against Lynch and ex-CFO Sushovan Hussain.

A draft of Mr Justice Hildyard's 1,500-page judgment will be handed to each side's lawyers within weeks, the judicial review papers revealed.

Public hand-down is currently scheduled for February, though a number of these deadlines have passed since the first "end of Q1" 2020 target date. ®

Bootnote

It seems The Register is not the only organ to wonder what's going on with the perpetually delayed High Court judgment.

"No one criticises Hildyard J," said Summers and Barnes in their filings, "but neither was it irrational for [DJ Snow] to 'not have any great confidence' that further delay would then likely follow."

The duo then set out the High Court judge's previous deadlines:

• 2020
• 31 March 2021
• "end of April or early May"
• "end of May/early June"
• "week ending 24 September
• "October"
• "end of October / early November"
• "some time in January 2022"

"Apparently since, it has gone back again," complained the US' barristers, citing a passage of Lynch's legal filings referring to his lawyers' "holiday plans" and Mr Justice Hildyard's decision to extend the usual two-week embargo period for lawyers to review the 1,500-page tome for obvious factual mistakes.

*This article is based on court filings made in advance of an oral hearing, scheduled for today, in which the case will be made by Lynch's team that the Home Office should delay its extradition decision.