Real Estate Opportunities Ltd v Aberdeen Asset Managers Jersey Ltd & Ors

This is an appeal from the order of David Richards J dated 15 December 2006 ordering the inspection of documents. The main question is the effect of sections 348 and 391 of the Financial Services and Markets Act 2000 (“FSMA”) on the obligations of a defendant to give inspection of documents disclosed in litigation pursuant to CPR 31. The issues on this appeal and my answers in summary to those issues are set out in para. 22 below.

The appropriate place to start is with a short description of the relevant statutory scheme and the relevant parts of the two sections with which this appeal is concerned.

As is well known, FSMA makes provision for the regulation of financial services and markets. In particular it sets out the functions of the Financial Services Authority ("FSA”) and provides for persons (“authorised persons”) to be given permission to conduct a regulated activity. They may be individuals, bodies corporate, partnerships or unincorporated associations. All of the defendants in this action are authorised persons for the purposes of FSMA and authorisations may also have been granted to certain of the individuals acting on their behalf.

Among its powers, the FSA has power to require an authorised person to provide information or to produce documents (see section 165 of FSMA). The FSA may also appoint competent persons to conduct an investigation into any aspect of the business of an authorised person (section 168 of FSMA). The persons conducting the investigation may require persons to attend before them and answer questions (section 173 of FSMA). Certain statements made to investigators in accordance with FSMA are admissible in evidence in any proceedings if the statement also complies with the requirements governing the admissibility of evidence in the circumstances in question (section 174(1) of FSMA).

Section 348 prohibits the disclosure of confidential information obtained by the FSA in discharge of its functions. The prohibition extends to information obtained by other primary recipients, such as the Secretary of State for Trade and Industry, and to information obtained by persons (“secondary recipients”) from a primary recipient. Section 349 enables the Treasury to prescribe by regulation gateways or exemptions from restrictions on disclosing confidential information. Section 352 imposes a criminal penalty for a breach of section 348. But there is a defence for a person who can show for instance that he took all reasonable precautions and exercised all due diligence to avoid committing the offence.

The material provisions of sections 348, 349 and 352 are as follows:

“348 Restrictions on disclosure of confidential information by Authority etc

(1)

Confidential information must not be disclosed by a primary recipient, or by any person obtaining the information directly or indirectly from a primary recipient, without the consent of—

(a)

the person from whom the primary recipient obtained the information; and

(b)

if different, the person to whom it relates.

(2)

In this Part “confidential information” means information which—

(a)

relates to the business or other affairs of any person;

(b)

was received by the primary recipient for the purposes of, or in the discharge of, any functions of the Authority, the competent authority for the purposes of Part VI or the Secretary of State under any provision made by or under this Act; and

(c)

is not prevented from being confidential information by subsection (4).

(3)

It is immaterial for the purposes of subsection (2) whether or not the information was received—

(a)

by virtue of a requirement to provide it imposed by or under this Act;

(b)

for other purposes as well as purposes mentioned in that subsection.

(4)

Information is not confidential information if—

(a)

it has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purposes for which, disclosure is not precluded by this section; or

(b)

it is in the form of a summary or collection of information so framed that it is not possible to ascertain from it information relating to any particular person.

(5)

Each of the following is a primary recipient for the purposes of this Part—

(a)

the Authority;

(b)

any person exercising functions conferred by Part VI on the competent authority;

(c)

the Secretary of State;…

349 Exceptions from section 348

(1)

Section 348 does not prevent a disclosure of confidential information which is—

(a)

made for the purpose of facilitating the carrying out of a public function; and

(b)

permitted by regulations made by the Treasury under this section.

(2)

The regulations may, in particular, make provision permitting the disclosure of confidential information or of confidential information of a prescribed kind—

(a)

by prescribed recipients, or recipients of a prescribed description, to any person for the purpose of enabling or assisting the recipient to discharge prescribed public functions;

(b)

by prescribed recipients, or recipients of a prescribed description, to prescribed persons, or persons of prescribed descriptions, for the purpose of enabling or assisting those persons to discharge prescribed public functions;

(c)

by the Authority to the Treasury or the Secretary of State for any purpose;

(d)

by any recipient if the disclosure is with a view to or in connection with prescribed proceedings…

(5)

“Public functions” includes—

(a)

functions conferred by or in accordance with any provision contained in any enactment or subordinate legislation…

352 Offences

(1)

A person who discloses information in contravention of section 348 or 350(5) is guilty of an offence…

(6)

In proceedings for an offence under this section it is a defence for the accused to prove—

(a)

that he did not know and had no reason to suspect that the information was confidential information or that it had been disclosed in accordance with section 350;

(b)

that he took all reasonable precautions and exercised all due diligence to avoid committing the offence.”

The powers of the FSA also include power to require a person to make monetary restitution to the appropriate persons where it is satisfied that an authorised person has contravened a requirement imposed by or under FSMA as a result of which that person has received profits or another person has suffered loss (section 384). However, before it exercises this power the FSA must give the authorised person a “warning notice” specifying the amount which the FSA proposes to require the person concerned to pay or distribute to the appropriate persons (section 386). Furthermore, if the FSA decides to exercise the power to order restitution it must give a “decision notice” to the person in relation to whom the power is to be exercised (section 386). There are various requirements concerning the contents of a decision notice. The person to whom a decision notice is given may refer the matter to the Financial Services and Markets Tribunal (section 386(3)). Section 391 imposes restrictions on the dissemination of warning notices and decision notices. Section 391 prohibits either the FSA or the recipient of a warning or decision notice, including a third party to whom such a notice is copied, from publishing details of any such notice. Section 391 provides in material part as follows:

“(1)

Neither the Authority nor a person to whom a warning notice or decision notice is given or copied may publish the notice or any details concerning it….”

There is no statutory penalty for a breach of section 391.

The claimant, Real Estate Opportunities Ltd (“REO”) is a split capital investment trust, that is, an investment trust company whose share capital is divided into different classes of shares carrying different rights, risks and rewards. It was incorporated in Jersey on 30 March 2001. On 4 May 2001 it issued listing particulars relating to a placing of up to 300 million ordinary shares, 75 million zero dividend preference shares and up to £125 million of convertible unsecured loan stock. The securities were later issued on the London, Irish and Channel Islands stock exchanges.

The defendants are UBS Ltd (“UBS”), formerly UBS Warburg Ltd, and Aberdeen Asset Managers Jersey Ltd and Aberdeen Asset Managers Ltd (collectively “Aberdeen”). UBS and Aberdeen acted as advisers to REO in connection with the listing and certain related transactions. Aberdeen thereafter managed the portfolio of REO.

In June 2005, REO commenced proceedings against UBS and Aberdeen. It alleges that at all material times after its incorporation Aberdeen and UBS owed it tortious duties of care to provide it with advice in relation to the flotation, the financial model to be adopted upon its flotation, the proposed content of the listing particulars and the investment objectives and policy to be adopted by REO. It further alleges that the defendants acted in breach of certain agreements between it and them relating to the flotation and that in the period after flotation Aberdeen acted in breach of contract and duty, in particular in making various investments in securities in this period. We are not concerned with the content of any of these allegations and so it is unnecessary to set them out in any greater detail.

In about September 2001, the FSA started to make enquiries into the market in split capital trusts. In about February 2002, the FSA set up a more formal investigation. This culminated in December 2004 in a settlement between the FSA and various firms involved, including Aberdeen and UBS. The settlement involved the creation of a fund of £194m to compensate certain shareholders and an undertaking by Mr Christopher Fishwick of Aberdeen not to participate in certain regulated activities for a period of seven years. Mr Fishwick was a director of Aberdeen, and a director of REO, and is one of Aberdeen's witnesses in this action. It appears that the matters investigated by the FSA included some of the affairs of REO in which the defendants were involved.

Both Aberdeen and UBS have disclosed in their lists of documents the existence of documents which they claimed to be entitled to withhold from inspection by REO by virtue of sections 348 and 391 of FSMA. In the case of Aberdeen, for instance, these documents were said to fall into the following categories:

We understand that, in the case of each defendant, the principal class of documents in issue is that of transcripts of evidence given by their employees to the FSA. The FSA gave copies of these transcripts to the defendant employer. We further understand that the documents in issue also include warning notices (but not decision notices), to which section 391 applies.

It is important to distinguish the two different types of disclosure arising on this appeal. The first type of disclosure is the disclosure of documents in accordance with CPR 31. In this context, that which is disclosed is the document or other physical record of some communication. There is no exception for documents which contain confidential information.

The second type of disclosure arising on this appeal is the disclosure of confidential information. Section 348 of FSMA prohibits the disclosure of confidential information obtained directly or indirectly from a primary recipient. The prohibition is confined to confidential information. Moreover, the prohibition relates to information and not to documents or other records of communication.

Section 391 of FSMA prohibits the publication of warning and decision notices, and REO’s argument, accepted by the judge, is that publication is not the same as disclosure.

Before the judge Aberdeen’s submissions were not directed to the scope of section 348 of FSMA (as to which there was common ground between it and REO) but to the exercise by the judge of his discretion to order disclosure and as to the effect of section 391. The judge ruled against the submissions made by both defendants on the effect of sections 348 and 391 and made orders for inspection in effect requiring both defendants to give inspection (subject to various protections for employees) of the documents in question in so far as they contained information already known to them respectively or were warning notices. The judge required the parties to take steps towards the implementation of his order notwithstanding the present appeal because the trial is due to start in May of this year.

As a result of taking these steps, Aberdeen came to the view that it was able to comply with the order and no longer wished to appeal against the judge’s exercise of his discretion to order inspection. Accordingly Mr Mark Howard QC, for Aberdeen, has only made submissions to us on the issue relating to section 391.

Contrary to its position before the judge, UBS does not contend on the hearing of this appeal that section 348 prohibits the disclosure of documents containing information of which it (UBS) was the source so far as the FSA’s knowledge was concerned. However, the concession has been made on the basis that the information provided to the FSA by an employee or officer of UBS would not make UBS a source of information for this purpose unless that person was specifically authorised to give that information on behalf of UBS.

A number of matters were not in issue here or before the judge. There is no dispute but that the information in question is confidential information for the purposes of section 348. Inspection is sought only of documents relevant for the purposes of these proceedings, so we are not concerned with any issue of relevance. Moreover, it is common ground that there is no relevant exception from section 348 in section 349 or in any of the regulations made under section 349.

REO accepts that, where a document disclosed by one of the defendants in its list of documents was obtained from the FSA and contains confidential information within the meaning of section 348 of which the defendant in question was not aware before it obtained the document from the FSA, that information can be said to have been obtained from the FSA. Thus inspection cannot be given of any document containing that information unless the consents referred to in section 348(1) are obtained. However, and here there is a dispute between it and UBS, REO does not accept that the defendants can withhold inspection on a blanket basis of documents received from the FSA, and contends that they must examine each document to determine whether it can be disclosed in whole or part.

There are four issues arising on this appeal:

I have formulated this issue by reference to the concession that UBS made at the opening of this appeal, and already mentioned above. UBS now accepts that if any person, acting in a representative capacity on behalf of UBS, gave information to the FSA, for example at an interview, and the FSA then in turn gave that information back to UBS, say in the form of the transcript, UBS could not be said to have “obtained” that information from the FSA for the purpose of section 348 of FSMA. It accepts that that person, and that person alone, would have been the source of that information. The question therefore under this issue is now whether UBS can be said to have “obtained” information for the purposes of section 348 where it did not itself provide it to the FSA but was provided with it by the FSA in circumstances where it (UBS) already had it, or, alternatively where its employee gave the information to the FSA out of information belonging to UBS, but was not specifically authorised to do this, and the FSA then passed the same information back to UBS in some form.

Those two situations are difficult to distinguish from the situation in UBS’ concession, that is where the FSA writes to (say) the secretary of UBS and asks for UBS to provide certain information, which it then does through an employee specifically authorised for this purpose. Accordingly, many of the same linguistic submissions have been made under this head as would also have been deployed to support UBS’ original position that section 348 applied to impose a bar on disclosure whenever UBS received information from the FSA. If that step occurred, section 348 imposed a bar on disclosure and it was not necessary to look further.

UBS’ case on this issue depends on a textual approach and upon the presumption that statutes will be interpreted so far as possible to avoid absurdity.

Thus, Mr Iain Milligan QC, for UBS, submits that a person “obtains” information from another whenever he receives that information from that person even if he had the information already or had been given the information by that person on a previous occasion. The concept of “obtaining” is thus a physical concept of being in receipt of a communication. Mr Milligan submits that a person obtains information when he receives it and that the words "obtain" and "receive" are used interchangeably in the same sense in section 348: see for example section 348(2)(b). By contrast, the act of disclosure involves the giving of information not previously known. On his submission, if Parliament had intended that a person should only be said to “obtain” information if he did not previously know it, some more precise concept such as disclosure would have been used to define the characteristics of the person barred from making disclosure. He submits that disclosure normally involves the communication of something that is not already known and in support of this submission prays in aid the dictum of Lord Lowry in Attorney General v Associated Newpapers [1994] 2 AC 238 at 255, cited by Laddie J in BCCI v Price Waterhouse [1998] Ch 84 at 101-2:

“The cardinal rule, as stated in the textbooks on interpretation, for example in Maxwell on Interpretation of Statutes, 12^th ed. (1969), pp. 28-29, is that words in a statute prima facie bear their plain and ordinary meaning. If that rule is applied without modification, then the appellants disclosed the relevant particulars. There is no conflict or contrast between publication and disclosure. The latter activity has many manifestations and publication is one of them. To disclose is to expose to view, make known or reveal and in its ordinary meaning the word aptly describes both the revelation by jurors of their deliberations and further disclosure by publication in a newspaper of the same deliberations, provided always – and this will raise a question of fact – that the publication amounts to disclosure and is not a mere republication of already known facts. ”

Mr Milligan further submits that, unless the word "obtaining" in section 348(1) is given the narrower meaning for which he contends, absurd situations can arise. For example, if information comes to the secondary recipient from separate sources, first from the market and second from the FSA, the secondary recipient is free to disclose information received from the FSA. By way of further example Mr Milligan takes the situation where a secondary recipient receives the same information on two occasions from the FSA. Mr Milligan submits that, taken to its extreme, the judge's interpretation means that UBS is no longer restricted from disclosing the information after it receives it on the second occasion because it already knew the information as a result of the first disclosure.

In my judgment, the more natural meaning of the word “obtaining” in section 348 (1) is "who has obtained". Mr Milligan’s interpretation involves looking at each occasion when information is obtained but if this was what was intended section 348 would more naturally have said: “who has at any time obtained" or “at any time obtaining”. The words "at any time” cannot, however, be inserted into the statute. But it is also possible to analyse each time a person receives information separately. If that is right, a person could properly be said to “obtain” information on each and every occasion that he receives it. That is a possible textual approach. It would be a literal approach to the words of section 348. It is the approach to interpretation for which Mr Milligan contends.

I would not however accept that approach. The interpretation of an Act of Parliament involves far more than a search for literal meaning or linguistic look-alikes. The task of interpretation does not stop when the dictionary meaning of words has been found, and indeed it cannot stop there where more than one meaning is available. The court must look more deeply into the statute in order to give effect to Parliament's intention as expressed in the language it has used. Accordingly, as part of the process of interpretation, the court must seek to find, within the four corners of the statute, the purpose of the provision under consideration. If there is a choice of meanings, it must apply the meaning of the words more consistent with that purpose. Unless and until the court is satisfied that the meaning which it gives to the words that Parliament has used gives effect to the purpose appearing from the provision, there may be said to be ambiguity in those provisions.

Here there is quite evidently a choice of meaning for the word “obtaining”. An examination of the purpose of section 348 is the next step. The obvious purpose of section 348 is to protect confidential information that has found its way into the FSA's hands. The information may have been volunteered. Alternatively it may have been given to the FSA in pursuance of request made by the FSA in exercise of its statutory functions. Once the information has reached the FSA's hands, the FSA is restricted from disclosing it to third parties and must use one of the gateways available to it in section 349 or regulations made thereunder. The prohibition on disclosure extends to persons who obtain the information directly or indirectly from the FSA. If they wish to disclose it, they must have the consents set out in section 348(1) or bring themselves within one of the gateways available to them under section 349, or regulations made thereunder.

What is the apparent object of preserving confidentiality in information provided to the FSA? The preservation of confidentiality appears to serve a number of purposes. First, it ensures respect for the private life of the person who was the subject of information: if none of the gateways provided by section 349 is available, neither the FSA nor a secondary recipient can disclose the information without obtaining the consent of the subject of the information (section 348(1)). Disclosure in those circumstances without such consent might involve a violation of article 8 (respect for private and family life) of the European Convention on Human Rights. Secondly, restrictions on the disclosure of confidential information in the financial markets are likely to assist in the process of regulation because of the encouragement that it is likely to give to people in the market to disclose timeously information which may be of importance to the regulator for the purpose of exercising its regulatory functions. As the judge accepted, the position of the FSA may in this respect be compared to the position of the Bank of England under the Banking Act 1987, of which Lord Woolf MR, giving the judgment of the Court of Appeal in Barings Plc v Coopers & Lybrand [2000] 3 AER 910 said ([16]):

“The maintenance of confidentiality under Pt V of the 1987 Act for information provided to the Bank is plainly of great importance. Protecting those who provide information to the Bank encourages voluntary disclosure from institutions, third parties and whistle blowers, any of whom might otherwise be unwilling to divulge material. The Bank is of the view that, absent such protection, it would be deprived of the raw material it requires for effective supervision.”

In Re Galileo Group Ltd [1999] Ch 100, at 110, Lightman J made the point that confidentiality enhances candour in favour of other regulators. He said:

“The maintenance of confidentiality as provided in section 82 is of vital importance to the discharge by the bank of its supervisory responsibilities under the Act of 1987. Confidentiality is vitally important to encourage the maximum free flow of information from supervised institutions and third parties whether such disclosure is obligatory or voluntary.”

Accordingly, there are strong reasons for restricting disclosure of information provided to a regulator. The case can be taken of a whistleblower. A whistleblower is more likely to be willing to disclose information to the regulator if he is assured that the fact that he provided it will remain confidential. A whistleblower may provide information about his employer (Company A) or others. The effect of section 348 is that the FSA can use the information internally but it can disclose that information only if it can bring itself within one of the statutory gateways. It may be possible for the FSA to investigate the matter without disclosing the information at all, or at least without the whistleblower’s identity being revealed. However, the FSA may in the proper pursuance of its functions want to put the information to a third party. The absence of any restriction on that third party from disclosing the information might well act as a disincentive to the free flow of information to the FSA. It could lead to the third party disclosing the information to Company A and to the identity of the whistleblower being revealed. On the other hand, there would seem to be no reason for preventing Company A from disclosing information which it has as it wishes even if it receives the same information from the FSA when it (the FSA) asks for an explanation of some matter. Company A was always free to disclose that information before the disclosure by the whistleblower to the FSA and the whistleblower can have had no expectation of any restriction on its disclosure by Company A.

The importance which Parliament attached to the restrictions on disclosure is emphasised by the fact that a breach of section 348 is made a criminal offence under section 352.

Examination of the purpose of sections 348, 349 and 352 thus militates against imposing any bar on disclosure by UBS as the secondary recipient in the two circumstances for which Mr Milligan contends, that is where confidential information is supplied to the FSA by an employee from the files of UBS without having had specific authority to do so and the situation where the FSA supplies information to UBS, which UBS already has. Of course, the FSA will be prohibited from disclosing any confidential information which UBS provides to it, unless one of the statutory gateways is available. But there is no reason to impose a bar on UBS from disclosing information that it already has if it was otherwise entitled to disclose that information. Indeed, to impose a bar on such disclosure may create difficulties for UBS in situations which Parliament could not have foreseen and would have been unlikely therefore to have intended to create. It would need clear language if that were Parliament's purpose. As it is, there is nothing to show that it was part of Parliament's purpose.

I next turn to see whether either of Mr Milligan's arguments about absurdity (see para 27 above) compels the contrary conclusion in the light of the conclusion I have reached about the meaning of the words "obtaining" in section 348(1). As to his first example, the secondary recipient would not in my judgment be prohibited by section 348 from disclosing the information communicated by the FSA if he had already received it from a source independent of the FSA and it is difficult to see why he should be so prohibited. The second example gives rise to no difficulty for a different reason. It cannot matter how many times the FSA physically communicates information. If the recipient of the information got it from the FSA, and only from the FSA, he is a person "obtaining" the information from the FSA, and the mere fact that the FSA gives it to him on more than one occasion cannot free him from the prohibition in section 348. To be free of the prohibition in section 348, the information must have been obtained independently of the FSA.

I therefore conclude that a person does not "obtain" information from the FSA for the purpose of section 348 of FSMA if he had that information before it was given to him by the FSA. This would be so even if that person was not the “source” of that information in the sense of having authorised some individual on its behalf to give the information in question to the FSA.

Mr Jonathan Sumption QC, for REO, in argument raised the question whether the prohibition in section 348 on disclosing information would continue to apply if, after the FSA had provided the confidential information to the secondary recipient, the secondary recipient received that same information from a third party or the information ceased to be confidential. However these difficulties can arise even if Mr Milligan’s interpretation is correct so that they cannot be said to demonstrate that the judge’s interpretation is absurd. As these situations were not fully argued, I do not propose to express a view on them.

The conclusion that I have reached is consistent with the conclusion reached by this court in Arbuthnott v Fagan [1996] 1 LRLR 143. That case concerned the question of whether, in proceedings brought by underwriting members of Lloyd's against (amongst others) their members’ agents, there should be discovery of transcripts of evidence given by the members’ agents to a committee (the Neill committee) established by Lloyd's. Under Lloyd’s byelaws the members’ agents were prohibited from disclosing information obtained pursuant to any exercise of powers under the Lloyd's Acts 1871 to 1982, and this included information obtained by the committee. Cresswell J held that the transcripts were not information "obtained" pursuant to any exercise of powers. The Court of Appeal upheld his order of disclosure. Staughton LJ, with whom Sir Stephen Brown P and Rose LJ agreed, doubted whether the prohibition applied to discovery in a civil action. In reaching this conclusion, Staughton LJ relied on the wording of the byelaw and also on the fact that the byelaw was made under a private Act of Parliament. He went on to hold that:

“If, however, my doubts are unfounded and the prohibition in the byelaw does affect the obligation of discovery in a civil action, in my judgment it only applies to information which the member has obtained as a result of the exercise of powers under the Lloyd's Acts. It does not apply to information which he already had before those powers were invoked. That was the judge's view, and I agree with it. It meets the mischief which the byelaw was no doubt intended to prevent: people should not be required or allowed to disclose that which they learn by the exercise of Lloyd's powers. So the members of the Neil committee would not be allowed to disclose the transcripts. But there is no prohibition on the members’ agents doing so.” (emphasis added)

Later in the Galileo case Lightman J applied this decision to the situation where witnesses, for the purpose of giving evidence to an inquiry required to be set up by the Bank of England, had received information from those conducting the inquiry. Lightman J held that section 82 of the Banking Act 1987, containing a prohibition on a person who “obtains” information from those conducting such an inquiry from disclosing that information, prevented witnesses from disclosing information which was disclosed to the inquiry but did not prevent the disclosure of information which they communicated to those conducting the inquiry or which they already knew when they were interviewed. I shall need to consider the question of knowledge in more detail under the second issue.

In his judgment Lightman J noted that it was a feature of the Arbuthnott case that it concerned a Lloyd's byelaw and he drew attention to the presumption that a private act does not interfere with rights, in that case the right to obtain discovery of documents in litigation. Mr Milligan submits that the Arbuthnott case is distinguishable because it was decided under a Lloyd's byelaw. For my part, I am unable to see that there is any relevant distinction between the word “obtains” in a Lloyd’s byelaw and the word “obtaining” in section 348. Just as the court would be unwilling to interpret private legislation so as to remove rights to discovery, so too would it be reluctant to interpret a public general act as conferring an immunity from disclosure for which there was no obvious explanation. I would reject Mr Milligan's submission that the Arbuthnott case was decided only on the basis that the members’ agents were the source of the information which they gave in evidence in the restricted sense that the word “source” has for the purpose of UBS' concession described above: the sentence which I have italicised in the judgment of Staughton LJ draws a distinction between information which a person "obtains" and information which he has already. It is also likely to be unrealistic to assume that when the members’ agents gave evidence they were only asked about documents that they had provided to the Neill committee. It is inherently likely that they were asked questions about documents which they had not provided to the committee.

In the course of his submissions Mr Milligan suggested that the secondary recipient would have to inquire whether the FSA had obtained confidential information from another person so that it (the secondary recipient) would be prohibited from disclosing it itself. I do not accept this submission. If UBS was given confidential information by the FSA, then (in the absence of a statutory gateway) the question whether it was prohibited by section 348 from disclosing that information to a third party would depend on whether or not it had “obtained” that information. It would not depend on how the information had come into the FSA’s hands.

I turn to a separate matter. In my judgment, it follows from the fact that UBS can disclose certain information to another person, that that person is likewise not prohibited by section 348 from disclosing it to any other person. I reject Mr Milligan's submission that, even though UBS can pass the information on to another person, that other person cannot himself pass it on because the information is confidential information and he obtained the information indirectly from the FSA. There is some support for this argument in the decision of Laddie J in BCCI v Price Waterhouse. Laddie J was concerned with the question whether confidential information, which a recipient was free to disclose, could be disclosed to third parties who were not aware of this information without infringing section 82 of the Banking Act 1987. Laddie J considered that, even if the defendant was free to disclose information without itself committing an offence, the information could not be given to third parties who were not aware of the information because that would involve “disclosure” of information obtained by them indirectly from the regulator. In my judgment, this conclusion turns the prohibition on disclosure on its head and is another example of an interpretation that, while representing a literal interpretation, cannot stand once the purpose of section 348 is recalled. The prohibition on disclosure by indirect recipients is not self-standing. It only arises if the indirect recipient receives information from someone who is himself bound by an obligation not to disclose. If that person is not so bound, the question whether the recipient of the information would have been subject to a similar obligation if he had received the information from the FSA does not arise. There is simply no purpose in binding an indirect or tertiary recipient from the FSA because the secondary recipient can in any event let the information out of the bag. This point, as the judge held, removes one of the objections to the exercise by the judge of his discretion to order inspection.

Finally, I would record that Aberdeen has sought to maintain a reservation of its position before the judge with respect to the correctness of the application of the decision in Arbuthnott v Fagan in the event of a further appeal from this court.

For the reasons given above, I reject Mr Milligan’s arguments on this issue.

This issue is in part closely linked to the first issue. I have already concluded that, if a person has information before the FSA provides it to him, he does not “obtain” that information from the FSA, and thus he is not barred from making disclosure by section 348 even if he is not the “source” of the FSA’s information in the limited sense given that expression by UBS' concession on this appeal. If therefore the information is in written form in UBS' files before the FSA provides it to UBS in the course of its investigations, UBS has not obtained it from the FSA. The second issue takes the matter further, and covers the situation where the information is not in written form in the files of UBS, but is information which is known to its employees or consultants. In the Arbuthnott case, this court did not draw a distinction between information in written form in the members’ agents files before they gave evidence to the Neil committee and information simply known to the members’ agents. Both sorts of information are treated in the same way in that case. It is not clear whether the members’ agents were corporate bodies or individuals. However, in the Galilieo case, Lightman J took it as axiomatic that the Arbuthnott decision would apply also to information knowledge of which was attributed to the person seeking to rely on the prohibition.

The real thrust of issue (ii) on this appeal is whether in the case of corporate bodies the normal rules of attribution of knowledge apply. The judge concluded that UBS could not be said to obtain information from the FSA if it already knew that information through its employees or consultants, applying the normal rules of attribution. UBS contends that he was wrong so to do.

Mr Milligan's arguments on this appeal are in substance arguments about the various uncertainties in the attribution rules themselves, and he seeks to make his argument on this issue by pointing to those uncertainties and criticising some of the judge’s answers to the string of hypothetical questions that Mr Milligan posed. To my mind, this approach in large measure misses the point. The question is one of statutory interpretation. If a corporate body were to be prosecuted under section 352, the prosecution would have to show (among other matters) that it had “obtained” the information in question for the purposes of section 348. Since, in the words of the extrajudicial quotation often attributed to Lord Thurlow, a corporation has “no body to be kicked or soul to be damned”, a body corporate can only obtain information through its employees or agents. The individual who obtained the information need not be the same individual who is alleged to have disclosed it contrary to section 348. So far as obtaining information is concerned, the relevant question is whether the circumstances in which the offence could be committed had arisen. There is no reason why the ordinary rules of attribution should not apply when determining whether those circumstances existed, unless those rules produce an unworkable situation that Parliament could not have intended.

The ordinary rules of attribution are well-known. In general, an employer is deemed to have notice of anything of which any of his employees obtains knowledge in the course of his employment. Likewise a company is in general deemed to have notice of anything of which any of its directors obtains knowledge in the course of his duties. Both rules are subject to exceptions, including an exception where the employee or director is committing a fraud on his employer or company. There may also be other circumstances in which a company may be deemed to have knowledge: see El Ajou v Dollar Land Holdings plc [1994] 2 All ER 685 at 702a-c, and categories (i) and (ii), pages 702-3 per Hoffmann LJ.

Mr Milligan draws attention to the difficulty of answering some hypothetical questions about the rules of attribution and submits that the judge's conclusion is unworkable in practice. The employer would have to ascertain if any of his employees had prior knowledge. A person could not (on his submission) be said to have information which he had forgotten: for this purpose Mr Milligan relies on Re Montagu’s Settlement [1987] Ch 264, in which Sir Robert Megarry VC held that, apart from statutory provisions, a person should not be said to have knowledge of a fact that he once knew, if at the time in question he had genuinely forgotten about it (page 284). Mr Milligan submits that the same principle should apply to companies, but, in my judgment, the authorities as they stand do not support this. In the El Ajou case, Hoffmann LJ held that, once the knowledge of a director is treated as being the knowledge of the company in relation to a given transaction, the company continued to be affected with that knowledge on any subsequent stages of the transaction, even if the director ceased to be director. Of the other members of the court, Nourse LJ did not express a concluded view on this point, but Rose LJ held that the fact that a director ceased to be a director does not deprive a company of its continuing knowledge in relation to the transaction (page 700). It would seem to follow from the judgments of Rose and Hoffmann LJJ that a company does not cease to have information because its employees forget it. However I would not rule out the possibility that there may be circumstances in which a company is not taken to have knowledge of something which its employees or agents have forgotten and which it could not reasonably be expected to have remembered. The point about forgetting information was not dealt with in detail in the judgements in the El Ajou case and has not been fully argued in this case. Moreover, if there is any uncertainty about this point, it is a problem affecting the rules of attribution generally and is not likely often to arise.

In addition, submits Mr Milligan, there may be conflicting sources of information within the company. Moreover, different people may have different perceptions of what was said at a meeting. Employees may not actually know about information but may suspect it is the case. Secondary recipients cannot be expected to disentangle all these difficulties. He submits that the application of section 348 has to be clear, because, if the secondary recipient makes disclosure of information that is protected by section 348, he is liable to criminal penalties under section 352.

Without detracting from the importance of statute law imposing criminal offences attaining the requisite degree of certainty of operation, these points do not in my judgment make section 348 unworkable. I would accept that (subject to any concession made by REO) UBS would have to make enquiries of its employees, including past employees. It would, however, not have to make enquiries of all its employees but only those whom it had reason to believe might have had the information in question. The employer can set up systems to identify these employees. Where the employee has duties in relation to more than one business, and especially if one of those businesses is a client of UBS, rather than a member of its group, it may be difficult for UBS to determine to whom the information actually belongs. There may be similar difficulties with employees who acquired knowledge before they joined UBS. Likewise, there may be difficulties when an employee obtained information on a purely social occasion outside working hours and not at any premises where he is required to work. However, UBS has a defence to criminal proceedings so long as it can discharge the evidential burden of showing that it took all reasonable precautions and exercised all due diligence to avoid breaching section 348 (see section 352(6)(b)). Accordingly, provided that UBS has taken those precautions and used that diligence, it would have a defence to a criminal charge if an employee incorrectly recollected that he had previously known the information, when in fact he had not had prior knowledge or if its employees had differing recollections of some matter.

Mr Milligan submits that, if the secondary recipient is a company, it will not be deemed to have knowledge of information unless its directing mind and will had that information. For this purpose, he relies on the El Ajou case. In that case, a company was deemed to have the knowledge of its director that monies had been appropriated in breach of trust, because the director in question was “the directing mind and will” of the company. In this situation, only the knowledge of a person who is identified with the company in this way is imputed to the company. It is clearly much harder to meet the requirement of showing that the person is the directing mind and will of a company than simply applying the normal rules of attribution.

I do not accept this submission. In some situations, statute imposes criminal liability on a company on the basis of its knowledge and the question then arises as to whose knowledge is to be imputed to the corporation for this purpose. In Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, the Privy Council held that the primary rules of attribution were those contained in the company's constitution and implied by company law or the general rules of agency. It held that these rules of attribution would in general provide the answer. However, a rule might be stated in language primarily applicable to a natural person, and this would generally be true of rules of criminal law. In those cases, the court might conclude that the knowledge required was that of the board of the company. Applying that to the present case, I do not consider that, even though section 352 imposes criminal liability for breach of section 348, there is any indication in section 348 that, in applying the word “obtaining”, only pre-existing knowledge held by the company itself in the shape of its board of directors or a person who could be described as the directing mind and will of the company is to be taken into account. That would not indeed be consistent with the purpose of section 348 as identified above.

In the Meridian case, the Privy Council went on to say that, where a statutory provision applies to companies but the principles of vicarious liability are excluded, and where insistence on the primary rules of attribution would defeat the intention of a statute, the court would fashion a special rule of attribution to determine whose knowledge or state of mind was to be attributed to the company for the purpose of that provision. In some cases, on a true interpretation of the relevant statute, the knowledge required would be that of the duly authorised employee or agent. In my judgment, no special rule of attribution is appropriate here since there is nothing to exclude the normal rules of attribution.

The Meridian case was a decision of the Privy Council. It was applied by this Court in Re Bank of Credit and Commerce International SA (in liquidation) (No 15), Morris v Bank of India [2005] 2 BCLC 328.

Accordingly, on this issue (ii), with one small qualification (dealt with in the next paragraph), I agree with the judge and hold that, for the purpose of ascertaining whether UBS obtained information from the FSA, UBS did not “obtain” any information which it already knew. For this purpose UBS is taken to know the information known to its employees, consultants or directors which would be attributed to it under the general rules of attribution at or before the time that the relevant information was conveyed to it by the FSA.

The small qualification arises from paragraph 36 of the judge's judgement. The judge stated that Mr Milligan had given an example "related to mistaken evidence given by a present or former employee". The judge rejected this example in a succinct sentence: "A misstatement is not information". This point has not been fully argued, and I propose to express only provisional views on it. I can see that it is correct to say that a misstatement is not information in at least one sense. If an employee when giving evidence orally to the FSA misdescribes information held by UBS, and that misdescription originated with that employee, it could not be said that the employee's misdescription was information that UBS previously had or knew. There is no reason to think that this would happen very often. If, however, the employee’s mistaken evidence merely reflects mistaken information held by UBS, or is contained in correspondence or documents provided to the FSA by UBS, it is still information which has not been obtained by UBS from the FSA and the fact that it is mistaken makes no difference. It is accordingly not necessary in that case for information held by UBS to be tested by some criterion of accuracy and truthfulness before it is accepted to be information for the purpose of section 348.

CPR 31.3(2) provides that, where a party considers that it would be disproportionate to the issues in the case to permit inspection of certain documents which he has disclosed, and which adversely affect the case of one of the parties or supports another party's case, he is not required to permit inspection of those documents. However, under CPR 31.12(3) the court can make an order for specific inspection, that is, an order that the party permit inspection of any such document. Since the judge found against UBS on its submissions on the effect of section 348, UBS would be under an obligation to go through the documents which it objected to disclosing to see whether they contained information which UBS knew applying the normal rules of attribution. UBS contended that this would be a very burdensome exercise, and submitted that the judge should exercise his discretion to withhold inspection. Accordingly, the judge had to go on to consider whether it was appropriate in the exercise of his discretion to order inspection, notwithstanding the objections of UBS.

REO made a concession at this point that UBS should not be obliged to ascertain whether it was aware of information provided by the FSA unless it was clear from the transcripts of evidence provided by the FSA that any of its employees was aware of the information. Nonetheless, the defendants argued that the cost and difficulty of giving inspection outweighed the benefit. The judge agreed that the task was onerous but he pointed out in the case of UBS that the interviewees did most of the talking in the interviews and save where the recollections came from knowledge acquired otherwise in the course of the interviewees’ employment by UBS, their recollection will be information already known to UBS. The judge therefore concluded that the problems associated with rejection were outweighed by the likely value of an order for inspection.

The judge then turned to the factors enumerated by Lightman J in the Galileo case as relevant to the question whether the court should order the disclosure of documents pursuant to section 236 of the Insolvency Act 1986. Lightman J held:

“I should first say a few words on redaction. The jurisdiction of the court under section 236 to order disclosure of facts or documents is subject to the limitations imposed by the need to comply with section 82 of the Banking Act 1987. Speaking quite generally I have no doubt that the court has jurisdiction to order, and in appropriate cases has ordered, production of documents subject to redaction of material whose disclosure for any of a multitude of reasons may be unnecessary or undesirable or unlawful. Accordingly, I have jurisdiction to order Hambros and the interviewees to provide redacted copies of the report and the transcripts which exclude information whose disclosure is objectionable under section 82 of the Act of 1987. But in a case such as the present, concerned with information embargoed by section 82 of the Act of 1987, that is a jurisdiction to be exercised with the greatest caution. There must be taken into account a number of factors of some importance, for example: (1) the making of such an order may be seen as undermining the protection afforded by section 82; the possibility of this exercise being required or undertaken may prejudice the free flow of information to the bank; (2) the difficulty of the exercise. The exercise can only be undertaken by a person with lawful access to the embargoed information. For this reason the liquidator assigns the task in respect of the report and transcripts in Hambros' possession to Hambros. But Hambros may well need the assistance of Norton Rose and the interviewees to identify the supplemental information disclosed by Norton Rose. Likewise the interviewees will in all likelihood require the assistance of Norton Rose to redact their copies. The required assistance may not be provided readily or at all; (3) the risk that an erroneous omission to edit out a passage may constitute a criminal offence; (4) the danger that the redacted document (by reason of the excisions) may prove misleading; and (5) the problems which may be created by such disclosure, e.g. for a witness at a trial or on an examination by the liquidator faced with a truncated document and required to answer questions on it, yet barred from explaining his answers by reference to the passages omitted. In short the process may be time consuming, complicated, expensive and (on occasion) impracticable, and the end product may be of dubious value.”

The judge then referred to the fact that by section 236 of the Insolvency Act 1986 the court is given a broad discretion to be exercised in accordance with principles established in the authorities. Moreover, it was a relevant factor that the liquidator would be able to obtain information direct from the interviewees, if necessary by obtaining orders against them under section 236. The judge contrasted the position under CPR 31:

“50.

The discretion given to the court by CPR 31.12 is different. The right of a party to refuse inspection of a relevant document is that it would be disproportionate and the court’s task under CPR 31.12 is to determine whether that is so. Ready access to the relevant document by some other means could well be a relevant factor, but it is not available to REO in this case.”

The judge went on to give careful consideration to the factors enumerated by Lightman J, in so far as relevant:

“51.

That is not to say that at least some of the factors to which Lightman J refers may not also be relevant on an application under CPR 31 and I turn now to consider them. The first, undermining the protection afforded by section 82 (section 348 in this case), is not in my judgment applicable to the present application. Full effect must be given to section 348 by redaction of all prohibited information but, once that has been done, neither the section nor its underlying policy could justify a refusal to allow inspection under CPR 31. The second, the difficulty of the exercise, is a factor which I have already considered. In contrast to the case before Lightman J, I am not satisfied, on the evidence before me, that Aberdeen and UBS will require assistance from the interviewees or from the FSA.

52.

The third factor is the risk that an erroneous omission to redact a passage may constitute a criminal offence. Care must of course be taken in the process of redaction but the concern must not be overstated. In Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse, to which Lightman J referred in his judgment, although not specifically on this point, Laddie J held that section 82 of the Banking Act 1987 created an absolute offence. The risk of inadvertently committing an offence was on that basis significant. In Barings plc v Coopers & Lyband, the Court of Appeal overruled Laddie J, and held that section 82 required “mens rea in the normal way”. In giving the judgment of the court, Lord Woolf MR said at para 39:

“An offence is, then, only committed if the person alleged to have committed the offence had knowledge of the circumstances which mean that the information is information to which section 82(1) applies.”

The position as regards a breach of section 348 is that disclosure of information in contravention of section 348 is an offence (section 352(1)) but it is a defence for the accused to prove that he took all reasonable precautions and exercised all due diligence to avoid committing the offence (section 352 (6)(b)). If Aberdeen and UBS apply the approach set out in this judgement, it appears to me that they will not commit an offence.

53.

In this context it was submitted for UBS that Aberdeen and UBS could not take legal advice as to whether a particular passage should be redacted because, if its disclosure was prohibited, it could not be shown by Aberdeen or UBS to their legal advisers. This was a curious submission because, as the evidence makes clear, their legal advisers already have the transcripts, which they have read and scrutinised. In my judgment this involves no breach of section 348. The solicitors have received the transcripts as agents for Aberdeen and UBS. It would in any case be extraordinary if the section were construed as preventing the parties from showing the transcripts to their lawyers for the purposes of taking legal advice on their obligations as regards the transcripts.

54.

The fourth and fifth factors listed by Lightman J and relied on by Aberdeen and UBS were the danger that, once redacted, the transcripts might be misleading and the problems which could arise at trial. These are, as it seems to me, matters for the trial judge and the mere possibility of such risks does not in my view justify a refusal to order inspection of redacted transcripts.”

Mr Milligan submits that the judge reached his conclusion before considering the factors enumerated by Lightman J in the Galileo case as relevant to the exercise of his discretion. However this is explicable by the fact that the judge did not consider that the exercise with which Lightman J was concerned was on all fours with CPR 31. To the extent that the judge considered that the matters considered in the Galileo case were relevant, it is inconceivable that the judge would have reached his conclusion without having considered what he was going to say about the matters identified in the Galileo case. The judge was entitled to deal with the Galileo factors separately because they were factors considered relevant by Lightman J for the purposes of the exercise of a different discretion.

Mr Milligan further submits that the judge under-estimated the problems of redaction. The difficulty with this submission is that Mr Milligan would have to show that the judge's conclusion was perverse. But the judge explained that the interviewees did most of the talking and that must mean that, except in the unusual situation that the interviewee was not speaking from information obtained as an employee, the information provided by the interviewee in his or her answers cannot be information obtained by UBS from the FSA. There are two other factors. First, UBS has the benefit of the substantial concession made by REO as set out in para 60 above. Secondly, Aberdeen has been able to complete the task of redaction, and this development suggests that the judge's conclusion was not perverse.

Mr Milligan further submits that the judge failed to give sufficient weight to the factors enumerated by Lightman J in the Galileo case. He submits that the judge failed to consider the factors in the round and cumulatively. In fact, his submissions were more of a critique of the individual factors than some new cumulative assessment of the relevant factors.

As to the first factor enumerated by Lightman J in the Galileo case, namely undermining the statutory purpose, Mr Milligan submits that the judge should have leant against making an order for inspection because that would undermine the statutory purpose of section 348, which was to encourage candour. If inspection is ordered, this will discourage people from giving information freely in future. I do not accept this argument. The judge was dealing with a situation in which he had found that section 348 did not apply. In other words, the section itself struck the balance between candour and disclosure.

Lightman J’s second factor (the difficulty of redaction) has already been dealt with in para 65 above. The third factor was the risk of committing a criminal offence. We have had no argument on the applicability of the holding cited by the judge of Lord Woolf in relation to the mens rea required by section 82 (3) of the Banking Act 1987 (Barings Plc v Coopers & Lybrand [2000] 1WLR 2353). Section 82 is not in the same terms as section 352 of FSMA. I would therefore express no view on the mens rea for the offence in section 352(1). However, the judge is clearly right in saying that a defence is available under section 352(6). Mr Milligan submits that the fact that there is a defence for due diligence is little comfort, because it is easy to make a mistake. In my judgment, the judge was entitled to take the view that this was a sufficient defence in a situation where UBS will have had guidance from the court as to its obligations.

The fourth factor enumerated by Lightman J was the danger that a redacted document may prove misleading. Mr Milligan relies on this factor. As to the fifth factor enumerated by Lightman J, Mr Milligan submits that there is likely to be a problem for witnesses giving evidence and that it was not enough for the judge to say that these matters can be dealt with by the trial judge. The whole point of interim applications is to deal with problems before trial. Mr Milligan anticipates that witnesses may have to be separately represented. He submits that it would be better if the court took pre-emptive steps so that the trial judge would not be presented with this problem. In my judgment, the judge was entitled to take the view that all these matters should be left to the trial and there was no error of principle in this.

Mr Milligan also submits that the judge was incorrect in the distinction that he drew between section 236 of the Insolvency Act 1986 and CPR 31. In my judgment, the judge was correct to make the points he did on this matter. In particular, under section 236, it has to be shown that the exercise of the court’s discretion is in the interests of the winding up and that it is not oppressive or unfair: see, for example, British & Commonwealth Holdings plc v Spicer & Oppenheim (No. 2) [1993] AC 426.

In the event in the Galileo case, Lightman J went on to refuse to order the disclosure of the transcripts in question. Among the reasons he gave was that the interviewees had provided information on the basis that it would remain strictly confidential (page 116 of the report). So, too, here Mr Milligan submits that the judge failed to take into account that the interviews were conducted under compulsion. He submits that the interviewees were entitled to assume that the content of the interviews would remain confidential to be used only for the purposes of the FSA in connection with the investigation. He submits that there is no compelling reason why REO should be entitled to the benefit of the transcripts. The judge ought to have leant against disclosure because the interviewees would have been entitled to expect that the information that they gave to the FSA would not be open to scrutiny in this litigation.

As to Mr Milligan’s submission that the transcripts constitute evidence taken under compulsion, Mr Sumption submits that this factor is irrelevant. In Wallace Smith Trust Co v Deloitte Haskins and Sells [1997] 1 WLR 257, where the question was whether discovery should be ordered of transcripts of evidence given pursuant to section 2 of the Criminal Justice Act 1987, this court held that, once it was shown that such documents are necessary for the fair disposal of the action, an order for discovery should normally be made unless the court has examined the documents, considered them in the light of the material already in the applicant's possession and concluded that they do not in fact provide any disadvantage to the party seeking disclosure of them (see per Neill LJ at 267 to 268 and per Simon Brown LJ at 273). There is no difference for this purpose between transcripts of evidence under section 2 of the Criminal Justice Act 1987 and transcripts of evidence given to the FSA. There is, moreover, no suggestion in this case that the transcripts would be of no assistance to REO. In those circumstances, this factor was not one to which the judge should have given weight. Furthermore, the fact that the interviews were given in confidence would not be relevant to the exercise by the judge of his discretion.

Mr Milligan also submits that if inspection is allowed and REO uses the documents at trial, it would be committing an offence since it would have obtained information indirectly from the FSA. I have already rejected this point in para 43 above. Likewise, inspection cannot be resisted on the ground that REO could obtain the information by subpoenaing the witnesses and examining them itself. If that was a proper objection, disclosure could often be resisted in circumstances where the CPR clearly provide that it is to take place.

In my judgment, for the reasons given above, the judge was entitled to exercise his discretion as he did.

The judge dealt with this point succinctly as follows:

“A particular point was raised by Mr Milligan as regards warning notices sent by the FSA under section 385 of the Act. He submitted that inspection of them was prohibited by section 391(1) which provides that neither the FSA nor a person to whom a warning notice is given or copied “may publish the notice or any details concerning it.” Mr Milligan submitted that inspection would involve the defendants in publishing the notices. I do not accept this submission. While “publish” carries a range of meanings in different contexts, its ordinary meaning is to make known to the public or a section of the public. In the context of the Act, it is to be contrasted with the word “disclose” used in section 348. Inspection by parties to litigation in accordance with, and subject to the restrictions imposed by, rules of court is not in my judgment publication for the purposes of section 391. Use of the warning notice or its contents in open court might involve publication, but the court can take steps, such as imposing reporting restrictions or sitting in private, to deal with it.” (judgment, para. 56)

Mr Howard submits that the word "publish" in section 391(1) of FSMA is to be interpreted in accordance with the meaning of publication in the law of defamation, namely to communicate the relevant matter to a person (Halsbury’s Laws of England, volume 28, para 62). He submits that to interpret the word "publish" as meaning "make known to the public or a section of the public" is unworkable because there is no safe or sensible definition of "a section of the public". Mr Howard submits that it is not useful to contrast the word "publish" with the word "disclose" in section 348. Furthermore, the statutory purpose of prohibiting the publication of warning and decision notices is undermined if inspection is ordered in litigation. Aberdeen might cease to have any control over the warning notices if it settled the litigation, so far as it was concerned, but the litigation continued as between the other parties. He submits that, even if the litigation were not settled, Aberdeen would have no obligation to prevent the notices from being used without restriction in open court.

Mr Howard relies on the decision of the Divisional Court in R v Patents Appeal Tribunal (ex parte Lovens Kemiske Fabrics) [1968] 1 WLR 1727. In this case, the Divisional Court construed the words "made available to the public" in section 14(1)(b)(ii) of the Patents Act 1949 as including publication to a single person where information had been communicated to the member of the public without inhibiting its further distribution to the public. Mr Howard further relied on Re G [2003] 2 FLR 963, a decision of this Court on the meaning of "publish" in section 97 of the Children Act 1989. This court gave the word its meaning in the law of defamation. However, in both cases the context was far removed from this case. I gain little assistance from these authorities.

In my judgment, FSMA creates an antithesis between the “disclosure” of information and its “publication”. The word "disclose", or cognate expressions, are used for example in sections 96A, 147, 175, 284, 348, 349, 350, 393 and 413 of FSMA. The word "publish", or cognate expressions, are used in a much greater number of sections of FSMA: see for example sections, 17, 65, 66, 67, 70, 81, 89, 91, 93, 94, 96, 96A, 100, 121, 123, 126, 148, 155, 157, 160, 163, 169, 205, 207 and 208. I would not, therefore, accept Mr Howard's submission that the judge was wrong to attach significance to the fact that FSMA draws a distinction between "disclose" and “publish". Moreover, as Lord Lowry pointed out in Attorney General v Associated Newspapers in the passage cited in para 26 above, these words do not cover the same ground. Disclosure involves the revelation of information for the first time whereas publication does not. Publication, however, by its nature must in my judgment necessarily involve a dissemination with a view to making information available to the public. On this basis, while dissemination to a single person could be publication if done for the requisite purpose, dissemination to a larger number of persons for a different purpose would not necessarily amount to publication. In this case, the dissemination will only be for the purpose of the litigation. The documents of which inspection is given will remain confidential until the trial begins and will thereafter remain confidential if appropriate arrangements are made before they are deployed during the trial. Thus, making documents available for inspection does not of itself result in the publication of the information contained in those documents. For these reasons, I agree with the judge’s conclusion on this issue.

For the reasons given above, I would dismiss both appeals.

I agree that the appeals should be dismissed. UBS was concerned to resist inspection of material containing information about itself. I will not speculate on its reasons for doing so, but it seems to me extremely unlikely that there was ever even the remotest possibility that it might be prosecuted for disclosing such information.

I also agree.