Serious Organised Crime Agency v Namli & Anor

It is perhaps not immediately obvious why a party in a two-party case should be required to disclose documents that it does not seek to rely upon if their only relevance is adverse to the case of the disclosing party. Such documents were not included in the scope of standard disclosure recommended by Lord Woolf in his Access to Justice – Final Report of July 1996, which preceded the introduction of the CPR and on which it was based. The reason for the inclusion of subparagraph (ii) in Part 31.6(b) is unclear. Under the Rules of the Supreme Court, it had been unclear whether, in a multi-party case, party A was under a duty to disclose documents the only relevance of which was that they were adverse to the case of party B against party C: see Documentary Evidence by Charles Hollander QC, 10^th edition, at paragraph 7-29, and Disclosure by Paul Matthews and Hodge Malek QC at paragraph 4.12. It may be that CPR Part 31.6(b)(ii) was intended to make clear the extent of A’s duty of disclosure in such circumstances. It is also possible that the object of the unqualified obligation imposed by Part 31.6(b)(ii) is to enable those advising the party to whom disclosure is made and inspection is given to make the most reliable assessment possible of the strength and weaknesses of their case. However, I think it unlikely that those formulating the rule would have had in mind that the possibility that a party might not want to rely on documents adverse to his opponent’s case.

Be that as it may, I do not think that Part 31.6 is open to the interpretation put forward by SOCA. The wording of paragraph (b) is unqualified. Whereas paragraph (a) expressly uses the formula “on which [the disclosing party] relies”, no such words appear in either Part 31.6(b)(i) or (ii). I do not think it possible to read into Part 31.6(b)(ii) the words “as against another party”, so as to limit the obligation to documents which adversely affect another party’s case as against some other party. To do so is simply to add words that are not there. Moreover, the power conferred on the Court by Part 31.5 to limit disclosure renders any contrived or forced or purposive interpretation of Part 31.6 unnecessary.

I would however reject the defendants’ contention in their skeleton argument that the object of the unqualified disclosure obligation in Part 31.6(b)(ii) is to prevent the disclosing party from relying at a later stage, and in particular at trial, on documents that he has not disclosed. In my judgment, Part 31.21 prohibits a disclosing party from doing so without the permission of the Court. “Fails to disclose” in that paragraph must mean “fails duly to disclose”. Disclosure at trial, for example, cannot be disclosure for the purposes of that paragraph, since if it was the rule would be devoid of effect. Mr Trollope QC, for the appellants, accepted that this is the effect of Part 31.21.

I consider these provisions of the CPR together since the effect of an order under Part 3.1(7) in the present case is, to use the words of Part 31.5, to limit standard disclosure; conversely, the effect of an order under Part 31.5 limiting standard disclosure is, to use the words of Part 3.1(7), to vary the order made under Part 31.6. Moreover, if there were no express power conferred within the CPR to limit standard disclosure, I do not think that the general power in Part 3.1(7) could be used for that purpose.

I do not see any reason to confine the power conferred by Part 31.5(2) to the same occasion as that on which an order for disclosure is made under Part 31.5(1). If anything, the wording suggests that separate orders are envisaged, that under paragraph (1) being a direction and that under paragraph (2) being an order dispensing with or limiting standard disclosure.

Whether, in the exercise of the power conferred by Part 31.5(2), an order should be made limiting disclosure when the Court has already ordered unlimited standard disclosure is a different question. Being the exercise of a discretion, in order to succeed on this appeal the appellants have to show that the judge erred in law or in principle or made an order that could not properly be made in the exercise of that discretion.

I can see no real difference between the circumstances in which an order may be varied under Part 3.1(7) and those in which an order may be made limiting disclosure that has previously been ordered in unlimited terms. In both cases, the Court is modifying a previous order.

In Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch), Patten J said, at paragraph 7:

“It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ.”

In Collier v Williams, giving the judgment of the Court, Dyson LJ (as he then was) said:

“We indorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under CPR 3.1(7).”

In Roult v North West Strategic Health Authority [2009] EWCA Civ 444, Hughes LJ, giving a judgment with which the other members of the Court agreed, said:

“15 There is scant authority upon r 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. Neuberger J said as much in Customs & Excise v Anchor Foods (No 3) [1999] EWHC 834 (Ch). So did Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen[2003] EWHC 1740 (Ch). His general approach was approved by this court, in the context of case management decisions, in Collier v Williams[2006] EWCA Civ 20, [2007] 1 All ER 991, [2006] 1 WLR 1945. I agree that in its terms the rule is not expressly confined to procedural orders. Like Patten J in Ager-Hanssen I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. I am however in no doubt that CPR 3.1(7) cannot bear the weight which Mr Grime's argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.”

We were also referred to the judgments in this Court in Shah v HSBC [2011] EWCA Civ 1154 and the judgment of the Divisional Court in Windsor and ors v Bristol Crown Court and the Commissioners for HM Revenue and Customs [2011] EWHC 1899 (Admin). In W.L. Gore & Associates GmbH v Geox SPA [2008] EWHC 462 (Pat), Lewison J, as he then was, refused to vary a consent order concerning the date of trial, on the basis that there had been no change of circumstances since the order had been agreed and made, and that there was no good reason to expedite the trial, which would lead to other litigants’ trials being postponed. His dictum requiring a change of circumstances was approved by the Divisional Court in Alexander Windsor and ors v Bristol Crown Court [2011] EWHC 1899 (Admin), in which the Court refused to vary a final order that had been extensively discussed.

It is, I think, important not to treat any of these judgments as if they were statutes. Patten J made clear in the Lloyds Investment case that he was not seeking to lay down a comprehensive and exclusive definition of the circumstances in which the Court may vary a previous order, and this was emphasised by Hughes LJ in Roult. In my judgment,the exercise of the discretion must depend on the type and provisions of the order it is sought to vary or revoke and the circumstances in which it was made. It is one thing to seek to vary or to revoke, at one extreme, an order for summary judgment under Part 24, made after a disputed hearing, and at the other extreme a very different thing to apply to vary an order for the service of witness statements so as to extend time for compliance, in circumstances in which the delay in their service will have no effect on the trial date or otherwise prejudice the other parties. Final substantive orders must be distinguished from case management orders. Consent orders (which are not the same as orders made without argument that are uncontroversial when made), such as that considered in W.L. Gore & Associates GmbH v Geox SPA require special consideration. There is a spectrum, and stronger grounds, indeed exceptional circumstances, will be required at one end and relatively little at the other end. Part 52.17 may be regarded as a codification of the stringent requirements at one end of the spectrum in relation to orders made by the Court of Appeal.

The essential difference, however, is between an appeal, when the material before the first instance judge is revisited, and an application for variation or revocation, when in general in relation to an order determining a controversy between the parties it is normally necessary to show at the very least a change in the circumstances assumed or found by the Court.

In the present case, there was no controversy concerning paragraph 2 of Master Leslie’s order when he made it. It did not resolve any dispute between the parties when made. It was because the order was an interlocutory case management order that it expressly permitted the parties to restore the application. The judge found that those responsible for the claim on behalf of SOCA were not aware of the problem that his order would cause, because they had not carried out their disclosure exercise. Having done so, they appreciated that it raised a problem not previously considered by the Court. Given the context, i.e., disclosure, and this background, in my judgment, subject to the contentions of the appellant in relation to CPR Part 31.19, the judge was right to consider that he had a discretion to vary Master Leslie’s order by limiting disclosure.

It is at this point that I think it necessary to address the reasons put forward by the defendants for disclosure to them of the documents in question. No such reasons were given to the judge. Before us, Mr Trollope QC has put forward four.

First, it was submitted that SOCA has been judge in its own cause in determining whether the documents in question are relevant only as adversely affecting the defendants’ case, and not otherwise impacting on the case of SOCA. That is true. However, that is the way disclosure works under our procedural rules. The assessment made by a litigant as to relevance (by which I mean in the present case whether the document is such as to be within the scope of standard disclosure) is determinative, unless and until another party puts evidence before the Court demonstrating that that assessment has been wrong or unreliable. Normally, the party seeking further disclosure will in such circumstances make an application for specific disclosure under Part 31.12.

In the present case, no evidence has been put forward by the defendants to suggest that SOCA’s evidence that the documents in question are solely relevant as adverse to the defendants’ case is unreliable or wrong. It follows that I do not think that the defendants have any right to have the Court assess whether SOCA’s determination of the relevance of the documents is or is not correct.

The second reason put forward to require disclosure in the absence of an application under Part 31.19 is that the documents if disclosed might lead to a train of inquiry that may lead to information or documents helpful to the defendants’ case. This reason too is unsustainable. Documents that are only relevant in that sense are not within the scope of standard disclosure, as is apparent from its clear words, and was pointed out by this Court in Shahv HSBC.

The third reason is that without disclosure, the defendants will not be able fully to assess the strength and weaknesses of their case. However, we are concerned with the fairness of the trial. If the documents are not to be relied upon at trial, the fairness of the trial from the point of view of the defendants will be unaffected. Their legal advisers can advise them as to the strength and weakness of their case on the basis of the evidence that will be before the trial judge. The non-disclosure of documents adversely affecting the defendants’ case is helpful to them, not prejudicial.

The fourth reason put forward is that in the absence of an order under Part 31.19 the defendants have been deprived of their right to disclosure of documents that SOCA is under a duty to disclose. However, this assumes that SOCA is under such a duty. Once the Court exercises its power under Part 31.5 to limit disclosure by excluding the obligation to disclose the documents in question, SOCA is under no such duty.

Thus the crucial question on this appeal is whether the judge could not properly have exercised his discretion as he did because there was a public interest ground for non-disclosure, and so he should have required SOCA to make its application under CPR Part 31.19. This is, I think, an important question of principle.

It is necessary to consider what interest of the defendants would be advanced by requiring an application under CPR Part 31.19. In the ordinary way, public interest immunity applications are concerned with the desire of a public authority to withhold from disclosure or inspection documents that may damage its case or assist the case of other parties. In such a case, the Court must weigh up the public interest in non-disclosure (or withholding a document from inspection) against the other party’s right to a fair trial. The more prejudicial a document to the case of the disclosing authority, the more likely it is that the Court will refuse to accede to the application. However, if the document in question is adverse to the case of the other party, and supportive of the case of the disclosing authority, there is no weighing up to do. The Court will, in such circumstances, be bound to accede to the application, provided it is properly made.

The case was argued below on the undisputed basis that an application under Part 31.19 would be burdensome in management time, legal costs and court time. In his first witness statement, Mr King said:

“(3)

The alternative for such a course would be for the Claimant to consider whether to make a claim for Public Interest Immunity in respect of this material without notice to the Defendants. The making of such a claim, however, is no small matter nor lightly to be undertaken and would put the Claimant to considerable expense, both in management time (since any PII claim must be carefully considered and authorised at the highest level of responsibility) and in legal costs. It would also, most likely, require a Judge to consider detailed evidence including the relevant material itself. A PII claim is of course a very important exercise, involving delicate assessment of competing public interests, where a Government agency or department is in possession of documents which would be helpful to a defendant or unhelpful to the agency or department; but it is, in my respectful view, pointless, or at the very least, disproportionate, where the material is unhelpful to the Defendants and is not relied upon by the Claimant in any event.

(4)

Further, if the Order for standard disclosure was not varied in relation to the material in question, the claimant would be obliged prior to making any such PII application, to conduct a risk assessment in relation to each single item of material and each single provider of that material. This is likely to involve contacting the disclosing person or organisation, consulting with them as to risks and assessing the capability of any relevant criminal organisation. In relation to material from foreign sources, this is also likely to involve contacting the foreign state’s authorities and awaiting their process of assessing risk to the providers of such information. Again, it is, in my respectful view, at the very least disproportionate to conduct such an exercise where the material is unhelpful to the Defendants.”

On this basis, I see no good reason why SOCA should be required to make its application under Part 31.19, since to do so would not promote any legitimate interest of the defendants, for reasons I have set out above. Part 31.5 is not either expressly or implicitly limited by reference to Part 31.19. It was open to SOCA to apply under either rule, and it was open to the judge to make the order he did in the exercise of his discretion, having regard to the overriding objective, and including the saving of expense and the need to not involve unnecessary court resources.

It follows that in my judgment it has not been shown that the judge was in error in exercising his discretion as he did.

If my Lords agree, this appeal will be dismissed. However, its dismissal should not be taken as diminishing the importance of applications under CPR Part 31.19, which I accept reflects an important constitutional principle. If SOCA was seeking to withhold from disclosure any document that materially adversely affects its case, or which was materially adverse to the case of one defendant against the other, I should unhesitatingly have required an application to be made under Part 31.19, and would reject an application under Part 31.5. In that event, the evidence required would in all likelihood have been more extensive, and the Court might well require the matter to have been considered at a higher level within SOCA or the Home Office. The Court might exercise the powers conferred by paragraph (6) to require production of the document or documents or sample of them to the Court for it to consider, or to invite representations. But that is not this case.

I agree.

I also agree.