Robert Tchenguiz & Ors v Serious Fraud Office & Ors (16 July 2014)
It was appropriate to grant the claimant permission to instruct a review team to identify documents disclosed by the Serious Fraud Office in the instant action which might be relevant to a pending appeal in unrelated proceedings in Guernsey.
The first claimant (R) sought permission to instruct a review team, which included lawyers familiar with unrelated proceedings in Guernsey, to identify documents disclosed by the defendant Serious Fraud Office (SFO) in the instant action which might be relevant to a pending appeal in the Guernsey proceedings.
R had brought the instant action against the SFO after being the subject of a criminal investigation which resulted in no charges being brought. He sought to recover losses arising from unlawful search warrants issued by the SFO. The parties to the Guernsey proceedings included certain entities in which R had an interest as beneficiary, and the issues concerned certain inter-company loans between those entities. The SFO had disclosed documents to R in the instant action which it had previously obtained from third parties as part of its original criminal investigation as well as other documents created by the SFO containing information from third parties and references relating thereto. Roughly 45,000 documents had been disclosed. R stated that he did not intend, at this stage at least, immediately to use any of the relevant documents in the Guernsey proceedings; instead, the function of the review team would be solely to advise as to whether any particular document or set of documents from the SFO's disclosure had or could have a significant bearing on the outcome of the appeal which was pending in the Guernsey proceedings; if so, the review team would advise R to make either a request for consent to use the document or set of documents under the CPR r.31.22(1)(c) or an application for permission to use the documents under r.31.22(1)(b).
(1) It would be appropriate to accede to R's application. The crucial point was that the proposed course of action did not, at this stage at least, involve the use of any documents in the Guernsey proceedings; it merely involved preliminary steps necessary to enable R to receive legal advice and, if so advised, to make an appropriate application in this action pursuant to r.31.22. To refuse permission at this stage would be to deny R the opportunity of making an application in this action; that would be contrary to ordinary principles of justice and fairness and was a cogent and persuasive reason, as well as a special circumstance, in favour of granting permission, Omega Group Holdings Ltd v Kozeny  EWCA Civ 798,  1 W.L.R. 104 and Tchenguiz v Director of the Serious Fraud Office  EWHC 1315 (Comm), (2014) 164(7605) N.L.J. 20 considered (see paras 18-19 of judgment). (2) The SFO had raised various objections to R's application. Among other things, it had asserted that the court should not exercise its discretion under r.31.22(1)(b) in a manner which would in effect circumvent the statutory procedure laid down in the Evidence (Proceedings in Other Jurisdictions) Act 1975, which had been passed in part to enable the United Kingdom to ratify the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970. The existence of the procedure under the Convention and the 1975 Act was potentially a highly relevant consideration to the exercise of the court's discretion under r.31.22, but it was not a bar to the exercise of that discretion. However, the point did not ultimately assist the SFO in the present circumstances. Among other things, under the Convention or the 1975 Act any relevant request would have to be focused and targeted; the difficulty in the instant case was that such a request could not be made unless and until the proposed course of action was carried out. The SFO had also raised concerns over practical issues, arguing that if R's application were granted, it would have to inform as many as 80 third parties that their information was being reviewed for the purpose of potential adduction in the Guernsey proceedings. However, given that the proposed course of action was preparatory to the launch of any application in this action, it would not be necessary at this stage for the SFO to consult and take into account the views of any third parties with regard to the exercise proposed (paras 21-22, 25-26). (3) R would be given permission to carry out the proposed course of action subject to the review team entering into suitable confidentiality agreements and provided that the SFO was properly protected with regard to its reasonable costs (para.27).
LTL 23/7/2014 :  EWHC 2379 (Comm)