Libyan Investment Authority (Incorporated under the laws of Libya) v Societe Generale SA & 5 Ors (2015)
In a claim concerning alleged bribery and corruption, a confidentiality club was extended to include an officer of the claimant, which was a sovereign wealth fund in Libya, who had been on a committee investigating corruption. His knowledge of the authority's trades, employees and the people in power at the relevant times might assist the lawyers to streamline their investigations.
The court was required to consider the scope of a confidentiality club in fraud proceedings brought by the claimant authority against the defendant companies.
The authority was a sovereign wealth fund in Libya. It alleged that an individual (G), who had been a consultant in Libya, procured the companies to engage in bribery and corruption, making payments worth $58 million. It alleged that the payments had been partly to bribe the authority, and partly to benefit Colonel Gadaffi's family and associates, including G. A confidentiality club was established, whose members were able to see unredacted versions of sensitive information in respect of individuals under investigation. None of the authority's officers were members, though some of its legal advisers were, as were the companies' in-house lawyers. The authority wanted one of its officers, who had been a whistleblower and a member of the investigatory committee looking into the corruption, to be in the confidentiality club. The officer was prepared to give undertakings and was resident in England. The companies adduced expert evidence of the general violence in Libya following the ousting of Colonel Gadaffi, with those perceived as having been recipients of misappropriated state funds being targets for murder. It sought continued anonymity for certain individuals. The issues were whether (i) the individuals should remain anonymised; (ii) the authority's officer should be included within the confidentiality club.
(1) The starting position under CPR r.31.22 was that parties should be allowed unrestricted access to documents, subject to a prohibition from collateral usage. It was for the party seeking the imposition of a restriction to justify a departure from that position, and to establish a real risk of a deliberate or inadvertent use of collateral purpose. In respect of anonymisation, there had to be a real and immediate risk to life, "real" meaning "objectively verified", and "immediate" meaning "present and continuing". The evidence in respect of two individuals was short of what was necessary to establish a real and immediate risk, and it was relevant that they were not resident in Libya. A real and immediate risk had been made out in respect of two other individuals as they fitted the identified risk profile, and anonymisation was to remain in place in respect of them. (2) The officer was amenable to the UK jurisdiction and had no family resident in Libya. His knowledge of the authority's trades, employees and the people in power at the relevant times could help the authority's lawyers to streamline their investigations. It was important, if possible, to have at least one client representative in a confidentiality club to assist decision making. The court had to presume that the officer would comply with his obligations. Although he had been a whistleblower in the past, that did not mean that he would breach confidentiality in the instant matter as he had given an undertaking to the court and understood the consequences. There was no other officer with less of a connection to Libya. His inclusion would not undermine the purpose of the confidentiality club.