Summary

The court considered applications under CPR r.31.22 and r.32.12 for permission for the collateral use of documents disclosed and witness statements served in proceedings arising out of an investigation by the Serious Fraud Office. It observed that the public interest was against the collateral use of documents forming part of a criminal investigation, and it considered the nature of the test to be applied on an application under r.31.22(2) to restore protection against collateral use.

Facts

Following the settlement of proceedings brought by the claimant trustees against the defendant Serious Fraud Office (SFO), the trustees sought permission for the collateral use of documents disclosed and witness statements served in those proceedings.

The trustees bought their application under CPR r.31.22(1) and CPR r.32.12 and sought to use the documentation in proceedings in Guernsey to which the SFO was not a party. The documents fell into four categories: documents disclosed by the SFO; extracts from witness statements served by the SFO; documents obtained through third party disclosure from a firm of solicitors (G) who had co-operated with the SFO's investigation; and reports prepared by G on the instructions of the joint liquidators of four companies. The trustees sought a declaration that some of the documents were already in the public domain and, by virtue of CPR r.31.22(1)(a), were not caught by the prohibition on collateral use. The SFO cross-applied under CPR r.31.22(2) for an order restoring protection for those documents. The joint liquidators sought to strike out the trustees' applications as an abuse of process.

Held

(1) Although there was a strong argument for striking out, the strike-out application would be refused. The trustees' repeated applications, their delays, and the late service of supporting material were unacceptable but did not, of itself, justify a strike out (see paras 8-12 of judgment). (2) The trustees would not be given permission under CPR r.31.22(1)(b) to use the documents disclosed by the SFO. Eleven of the documents had been the subject of a previous unsuccessful application, and an applicant could not raise repeat issues in successive applications unless there had been a significant change, either in the circumstances or in his knowledge. As for the remainder, the trustees had failed to show special circumstances constituting a cogent reason for permitting their collateral use. The documents formed part of the SFO's criminal investigations; their claimed relevance and probative value was substantially the same as in previous unsuccessful applications; the other parties involved in the English proceedings did not consent to their use; and to accede to the application would risk substantial unfairness to the SFO (paras 34-40). (3) Nor would permission be granted under CPR r.32.12(2)(b) for the use of the extracts from the witness statements. The parties were broadly agreed that, when determining whether to grant permission under r.31.12, the court was to exercise its discretion by reference to similar considerations as those applicable under r.31.22,X Trust Ltd v L Insurance Co [2003] EWHC 996 (Comm) applied. The extracts in question referred to information from the SFO's disclosure documents, and it was not in the public interest to permit their use, particularly given that the information related to a criminal investigation. Moreover, they would be of limited use in the Guernsey proceedings, and the witnesses had not given their consent. A witness who volunteered to give evidence in a civil case which settled before trial was generally entitled to have his wishes respected as to any collateral use of his witness statement, and the court was to be slow to permit collateral use against the wishes of the witness (paras 41-51). (3) The trustees had not discharged the burden of showing special circumstances justifying the collateral use of the documents and reports produced by G. The documents consisted of G's notes of meetings held with the SFO, and both G and the SFO objected to their use in the Guernsey proceedings. Although the documents had not been generated by the SFO, they constituted confidential records of its investigation. The public interest in preserving the integrity of criminal investigations protected both investigating authorities and those, like G, who provided them with information. Finally, G, like the SFO, was not a party to the Guernsey proceedings and could not control the deployment of the documents therein (paras 52-60). The reports produced by G for the joint liquidators were slightly different. The joint liquidators were not advising the SFO, they were not witnesses to the matters being investigated, their interests did not coincide with those of the SFO; and they were party to the Guernsey proceedings. Nevertheless, the reports had already been the subject of one unsuccessful application and it was unlikely that they would be admitted in the Guernsey proceedings. That militated strongly against the grant of permission for collateral use (paras 52-60, 61-73). (5) Twenty six of the documents sought had been read or referred to in interlocutory proceedings and had thus lost their protection against collateral use. Under r.31.22(2), a party wishing to restore protection had to justify its position and show very good reasons for overriding the principles of open justice and transparency, Lilly ICOS Ltd v Pfizer Ltd (No.2) [2002] EWCA Civ 2, [2002] 1 W.L.R. 2253 followed. The SFO had done that. The documents related to a criminal investigation and there was a strong public interest against their collateral use. Moreover, it was proper for the court to assess the significance of the reference to the document, NAB v Serco Ltd [2014] EWHC 1225 (QB) applied. In the instant case, the documents had lost their protection by reason of marginal references in the proceedings as a whole; they had not been referred to in the course of a trial; they would be of limited use in the Guernsey proceedings; and they had not been disclosed to anyone other than the parties (paras 74-79, 85-94).

Applications refused; cross-application granted