Rawlinson & Hunter Trustees SA (Trustee of the Tchenguiz Discretionary Trust) v Serious Fraud Office

The main claims in these proceedings were settled in July 2014. However, there are now before the Court a number of applications which require determination, the main focus of which is a series of applications made pursuant to CPR 31.22 (and also, in part CPR 32.12) by one of the claimants, Rawlinson and Hunter Trustees SA in its capacity as trustee of the Tchenguiz Discretionary Trust (“R&H”) for permission to use certain documents disclosed and extracts of witness statements served in the main proceedings in a pending appeal against a decision of LB Chadwick delivered on 6 December 2013 in separate proceedings in Guernsey which is now due to be heard very shortly i.e. on 16 February 2015 (the “Guernsey Proceedings”). (I should mention that originally two of these applications were advanced on behalf of Mr Robert Tchenguiz (“RT”) personally and there was some confusion in that regard. However, it does not appear that anything turns on this point; and I say no more about it.)

The determination of these applications is therefore very urgent; and given the urgency, I propose to deal as succinctly as possible with the main issues which arise and to state my conclusions (and reasons) as briefly as possible.

There were (at least originally) four main applications advanced by R&H for permission to use in the Guernsey Proceedings the following categories of documents viz:

Shortly before the present hearing, R&H issued a further application (the “public domain application” or, for short, the “PD application”) for, in effect, a declaration that certain documents (including some forming part of the 78 documents application) were already in the “public domain” by virtue of the exception in CPR 31.22(1)(a) and were therefore not caught by any prohibition against collateral use. I heard this application at a separate hearing following the main hearing of the applications referred to above. I deal with that application later in this Judgment.

The 78 and 15 documents applications, the GT documents application and the GT reports application were, in essence, applications for permission pursuant to subparagraph (b) of CPR 31.22(1) which provides as follows:

“(1)

A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –

(a)

the document has been read to or by the Court, or referred to, at a hearing which has been held in public;

(b)

the Court gives permission; or

(c)

the party who disclosed the document and the person to whom the document belongs agree.”

The witness statements application was advanced under sub-paragraph (2)(b) of CPR 32.12 which is entitled “Use of witness statements for other purposes” and provides as follows:

“(1)

Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.

(2)

Paragraph (1) does not apply if and to the extent that–

(a)

the witness gives consent in writing to some other use of it;

(b)

the Court gives permission for some other use; or

(c)

the witness statement has been put in evidence at a hearing held in public.”

However, given that (i) the relevant extracts of the witness statements referred in many respects to information contained in documents which formed part of the SFO’s disclosure and (ii) it is trite law that the prohibition of collateral use in CPR 31.22 applies not only to the use of documents provided on disclosure but also to the information contained therein, it was common ground that both CPR 32.12 and 31.22 were, in effect, engaged in the context of the witness statements application. It was also common ground that the principles applicable with regard to the witness statements application are broadly similar to the other applications made solely under CPR 31.22(1)(b).

Although these applications have to be considered on their own merits, they raise similar issues to those which I had to consider in two previous applications in these proceedings. In the event, I refused both such applications for reasons which appear in my Judgments which are reported as Tchenguiz v SFO [2014] EWHC 2597 (Comm) (the “22 documents Judgment”) and Tchenguiz v SFO [2014] EWHC 4199 (Comm) (the “57 documents Judgment”). The 22 documents Judgment was upheld by the Court of Appeal: see [2014] EWCA Civ 1409 (the “CA Judgment”). An application for permission to appeal against my decision in relation to the 57 documents application was refused by the Court of Appeal on 2 February 2015.

Mr Segan, Mr Salzedo QC and Mr Brownbill QC all submitted that the applications should be struck out or rejected in whole or in part on the basis that they were an abuse of process. To the extent that such submissions were founded on grounds specific to particular applications, I deal with them in that context. However, it is convenient to address certain of their more general submissions which overlapped to some extent.

Starting with Mr Segan, he submitted that the SFO wished to put on record its concerns with regard to the manner in which these applications had been advanced on behalf of RT/R&H. In that context, he made three main points which I address briefly in a slightly different order. First, he submitted that the position concerning two opinions by Mr Lodder QC initially served and relied upon by R&H was deeply unsatisfactory. I agree. However, in the event, Mr Allcock on behalf of R&H indicated that he would not seek to rely upon them; and I propose to say no more about this at this stage.

Mr Segan also complained that the SFO had been swamped with vast quantities of material at a very late stage notwithstanding the timetable set by the Court and that the conduct of RT/R&H in connection with the listing of the present hearing had caused considerable prejudice to the SFO. In broad terms, Mr Salzedo and Mr Brownbill made similar complaints. Without going into all the detail, two points stand out. First, the present applications were not brought on previously as part of one or other of the previous applications as, in my view, they could and should have been. The result has been that the Court has had to deal with the applications on a piece-meal and fragmentary basis which, in turn, has led to additional Court time being used to the considerable detriment of other Court users. Second, although I ordered R&H to serve its evidence in the context of the applications against the SFO by 9 December 2014 and although R&H did serve some evidence by that date, it thereafter issued various additional “bolt-on” applications and served additional “evidence” and other material at a late stage both in the context of those applications and also the other applications – some of which only shortly before the commencement of the present hearing. In my view, such conduct is unacceptable in modern commercial litigation. Although Mr Segan did not, as I understood, go so far as to submit that such conduct amounted to an abuse of process so far as the applications against the SFO were concerned so as to justify striking out such applications, both Mr Salzedo and Mr Brownbill did submit that this was the appropriate course for the Court to take in relation to the GT documents application and the GT reports application (at least when taken together with other specific complaints) relying upon a number of points viz (i) the repeated number of applications brought before the Court; (ii) the delay in bringing the applications before the Court given in particular that the documents in question have been available to R&H since (at least) March 2014; (iii) the torrent of late evidence; (iv) the reliance upon evidence which was obviously irrelevant and/or inadmissible (including the opinions of Mr Lodder QC); (v) the inadequacies of the original skeletons served by R&H; (vi) the change in case advanced by R&H; and (vii) the absence of draft grounds of appeal in the Guernsey Proceedings which identify properly what R&H would be able to argue in favour of the appeal which it cannot argue without the documents now sought.

Further, both Mr Salzedo and Mr Brownbill submitted that, in truth, the present applications against them had an ulterior and improper purpose viz to enable R&H (i) to refer to the documents which they seek permission to use in open Court in the Guernsey Proceedings and thereby to bring the documents into the public domain; and/or (ii) as a basis for instituting or bolstering other proceedings against GT or the JLs – although such ulterior and improper purpose was denied by Miss Newman QC on behalf of R&H.

I do not propose to deal in any detail with each of these complaints. For present purposes, it is sufficient to say that I am very troubled by the repeated number of applications that have now been made by R&H in this Court as well as the delay in making such applications and the lateness of service of relevant material in support of the applications. On behalf of R&H, it was suggested that the explanation is that it has taken time for R&H properly to review and to consider the full potential impact of the relevant documents in the context of the Guernsey Proceedings. However, in my view, such explanation is unacceptable given the fact that (i) the decision of LB Chadwick was delivered as long ago as 6 December 2013; and (ii) the documents which are the subject of the present applications have been available to R&H or RT for a very considerable period indeed. To my mind, there is simply no satisfactory explanation as to why all the applications could not have been brought on and dealt with as a single package with any evidence or other material being served in good time to ensure that the applications are addressed in a fair and efficient manner. In such circumstances, I accept that there is a strong argument that I should dismiss the present applications as being an abuse of process or simply exclude a large amount of the material recently served on behalf of R&H. However, having regard to all the circumstances, I have concluded against taking such an extreme step based only on the points referred to above; and, subject to further consideration of the additional arguments of abuse of process in relation to specific applications, I propose to deal with the applications on their merits.

The background to the present applications is set out in my earlier Judgments and the CA Judgment. It is therefore unnecessary to repeat what is there set out. For present purposes, it is sufficient to say that as with the previous applications, the main focus of the present applications is the pending appeal in the Guernsey Proceedings and, of course, any possible retrial. In that context, R&H originally served its Notice of Appeal over a year ago i.e. on 20 January 2014. On 13 January 2015 i.e. almost a year later, R&H served a new Supplementary Notice of Appeal with amended grounds (the “Amended Grounds of Appeal” or, for short, “AGA”). This is a substantial lengthy document extending to some 42 pages with much “red” marking showing the proposed amendments.

At this stage, I would note two points of some importance with regard to the AGA. First, one of the difficulties is that R&H does not, at the moment, have leave from the Court of Appeal in Guernsey to rely on the AGA. The JLs, who are party to the Guernsey proceedings, have apparently objected to the AGA and there seems at the very least a strong possibility that such leave will be refused although that is, of course, a matter for the Court of Appeal in Guernsey. Despite this uncertainty and for present purposes only, I propose to proceed on the assumption in favour of R&H that such leave will be granted and that R&H will be permitted to advance the various points raised in the AGA. Second, it is important to note that R&H seek to advance an alternative case on the appeal for an order for a re-trial – a point which Miss Newman was keen to emphasise.

As in the case of the previous applications, the present hearing was conducted, in part, in private or subject to reporting restrictions whenever any specific reference was made to the contents of the particular documents in issue or relevant extracts of the witness statements; and in this public Judgment, I deliberately refrain from making specific reference to such material.

So far as CPR 31.22(1)(b) is concerned, the applicable principles are set out in the Judgment of Jackson LJ in the CA Judgment in particular at paragraph 66. It is unnecessary to repeat what is there set out other than to note perhaps three main points which were uncontroversial but which were emphasised by Miss Newman as being established by the CA Judgment viz:

First, the two previous applications concerned applications by R&H for permission to use documents generated by the SFO in the course of the criminal investigation conducted by the SFO. The policy arguments against permitting collateral use of such documents were obviously an important aspect of the two previous applications and, in particular, the CA Judgment. There is no doubt that those same policy arguments play an important role in relation to the 78/15 documents applications and the witness statements application. However, such policy arguments play no part in relation to the GT reports application since such documents were not created by the SFO as part of its criminal investigation but produced by GT on the instructions of the JLs. As is common ground, this is notwithstanding the fact that (i) these reports were shown to the SFO in the course of the SFO’s criminal investigation; and (ii) it is R&H’s case that the SFO relied very heavily on the contents of such reports in the course of such criminal investigation. To that extent, I fully recognise that there is a potentially sharp distinction between, on the one hand, the 78/15 documents applications and the witness statements application and, on the other hand, the GT reports application. The GT documents application raises specific issues which I consider separately below.

Second, on behalf of R&H, Miss Newman submitted that “… it is for the Court to do what is just in the circumstances and that there is no presumption against the grant of permission, once it is shown that there is a good reason for doing so”. Further, Miss Newman relied upon certain passages in the decision of the Australian Federal Court of Appeal, Re Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 472, (1992) 110 ALR 685 at [22] and [26] to support a broad submission that the applicant does not have to show that the case is exceptional compared with other cases in which a reason appears in favour of granting permission. I accept, of course, that the Court must ultimately do what is just in the circumstances but I do not accept the broad submission that there is no presumption against the grant of permission at least in the circumstances of the present case. In particular and at the risk of repetition, it is plain from the CA Judgment and the earlier authorities there referred to that (i) the burden lies firmly on the applicant to show special circumstances which constitute a cogent reason for permitting collateral use; and (ii) there is a strong public interest in preserving the integrity of criminal investigations and protecting those who provide information to prosecuting authorities from any wider dissemination of that information, other than in the resultant prosecution: see, in particular, the CA Judgment §§58, 66(iv) and 83; and the speech of Lord Hope in Taylor v Director of the SFO [1999] 2 AC 177 at 218-219 (“I do not think that it is possible to overstate the importance, in the public interest, of ensuring that material which is disclosed in criminal proceedings is not used for collateral purposes”.)

Third, Mr Salzedo on behalf of GT went further. He submitted, in effect, that the Court should not permit the use of disclosed documents for a collateral purpose if it would cause any injustice to the disclosing party. In support of that submission, he relied principally upon the passage of the speech of Lord Oliver in Crest Homes Plc v Marks & Others [1987] 1 AC 829 cited in the CA Judgment at [57]. However, I doubt that the quoted passage in Crest was intended to lay down a rigid rule to the effect submitted by Mr Salzedo. Moreover, the thrust of the CA Judgment is to the contrary. Mr Salzedo’s fallback was that the Court should not permit the use of disclosed documents for a collateral purpose if it would cause “significant” injustice to the disclosing party. In support of that submission, he relied on the passage in the Judgment of Laddie J in Cobra Golf Inc v. Rata [1996] FSR 819 at p837. Again, I doubt that Laddie J was intending to lay down a rigid rule – although I fully accept that if the grant of permission to use disclosed documents would cause “significant” injustice, that would be a very strong reason to refuse permission and, in many cases, would probably be fatal. In the event, I do not consider that it is necessary finally to determine this point. For present purposes, I propose to assume in favour of R&H that where there is any or any significant injustice to the disclosing party, such injustice is not necessarily fatal to an application under CPR 31.22(1)(b) but is a factor to be considered in the balancing exercise.

Fourth, Mr Salzedo also raised a discrete point (at least initially) so far as his clients, GT, were concerned having regard to the fact that GT was a non-party to the main proceedings and that the documents which are the subject of the GT documents application were disclosed by GT under CPR 31.17. Mr Salzedo emphasised that the general rule against the collateral use of disclosed documents (save where one of the exceptions applies) is based, in part, on the fact that, as stated by Lord Hoffmann in Taylor v Director of the SFO, the discovery obligation of a litigating party is “a very serious invasion of the privacy of a litigant’s affairs.” It follows, submitted Mr Salzedo, that there is an even more serious invasion of the privacy and confidentiality of a non-party who is required to give disclosure pursuant to CPR 31.22; that such non-party must stand in an a fortiori position; and that there is a strong policy argument that third parties should not be discouraged from co-operating with CPR 31.17 requests by the possibility that documents disclosed will subsequently be used in completely different proceedings without their consent – although I did not understand Mr Salzedo to suggest that these factors were in any sense determinative.

As to these submissions, I readily accept that the requirement imposed on a non-party to disclose documents pursuant to CPR 31.17 constitutes – or at least may constitute – a serious invasion or intrusion into that party’s privacy and confidentiality; and that such factor may constitute a relevant additional factor in the balancing exercise which the Court is require to perform under CPR 31.22. However, it would appear that there is no specific authority on this point and, in my view, it is unnecessary to determine whether, as Mr Salzedo submitted, a non-party stands in an a fortiori position. For present purposes, I am prepared to proceed on the basis, as submitted by Miss Newman, that a non-party does not have any particular better protection.

Sixth, Miss Newman submitted that it is primarily for the “target” Court (i.e. the Guernsey Court) and not the originating Court hearing the application (i.e. this Court) to judge the merits of a particular submission in the target proceedings. In support of that submission, Miss Newman referred in particular to paragraph 78(ii) of the Judgment of Jackson LJ and Halcon v Shell [1979] RPC 97 per Megaw LJ at p119. I accept, of course, that ultimately, the correctness or otherwise of a particular submission in the “target” Court is a matter for that Court. However, I do not consider that the passages cited from the Judgment of Jackson LJ or Halcon v Shell support the proposition advanced by Miss Newman. On the contrary, in deciding whether this Court should exercise its discretion to permit collateral use of documents disclosed in proceedings in this Court, it seems to me that in carrying out the balancing exercise, this Court can and should have regard to the likely “utility” or importance of the documents in the target proceedings. In my view, that is consistent with the reasoning of the Judgment of Jackson LJ – see, in particular, paragraphs 84-88 of that Judgment which refer, in turn, to the earlier paragraphs 69-78.

In essence, it is R&H’s case that a serious injustice has been done in Guernsey by the decision of LB Chadwick; that this has caused very substantial financial loss and prejudice to R&H; that all the documents the subject matter of these present applications are highly relevant to the Guernsey Proceedings; that if permission is not granted to allow the collateral use of these documents, R&H will be in the intolerable and deeply unfair position of knowing that such an injustice has been done but being prohibited from properly explaining it to the relevant Court; that there is no sufficiently powerful countervailing consideration which could justify such serious unfairness to R&H/RT’s (private) interests; and that there is a strong public interest (based on the rule of law and Article 6 ECHR) that the consequences of the SFO’s flawed investigation into RT should be examined in a Court of law with the benefit of all relevant available evidence.

The evidence served and arguments advanced on behalf of R&H in relation to each of the applications followed a similar format. In particular, R&H formulated some 26 overarching numbered “propositions of fact” which were said to be derived or capable of being inferred from some or all of the documents or extracts of witness statements. In respect of each application, R&H produced separate schedules which extended to many pages – so-called “schedules of relevance”. In each case, these four schedules were divided into a number of columns identifying (i) the relevant particular document or extract of witness statement (as the case may be) in respect of which relevant permission was sought; (ii) a “commentary”; (iii) an identification of and cross-reference to the particular proposition of fact which R&H submitted was to be derived or capable of being inferred from that particular document or extract; and (iv) an identification of and cross-reference to the relevant paragraph(s) of the AGA to which it was said the particular document or extract related.

In this public Judgment, I do not propose to refer in detail to the propositions of fact or the schedules of relevance. For present purposes, it is sufficient to note that, in my view, these were very helpful documents; that I was taken carefully through them in the course of the oral submissions made on behalf of R&H and that the points made in the schedules of relevance are broadly similar to albeit an expansion upon those considered in paragraphs 68-75 of the Judgment of Jackson LJ which I do not propose to repeat.

Further details of the case sought to be advanced in the Guernsey Proceedings appear from the AGA in particular as set out (at some length) in paragraphs 27-33 of the AGA which were heavily relied upon by R&H in support of its various applications and were the focus of much of the argument in the present hearing. For present purposes, it is probably sufficient to borrow the summary overview of the AGA from R&H’s skeleton argument and its broad submissions in relation thereto:

In broad summary, Miss Newman submitted that the key points which form the basis of the AGA and which are said to be evidenced by the documents the subject of the present applications were as follows:

Before turning to consider the specific applications, it is convenient to deal with certain further general points relied upon on behalf of R&H.

First, the point is made that the SFO is a public body and that there is a “continuing public interest that the workings of government should be open to scrutiny and criticism”: see per Lord Goff in AG v Guardian Newspapers [1990] 1 AC 109 at p283E. I agree; and it is a point which I bear very much in mind in the context of the balancing exercise which I am required to perform.

Second, it is argued that a relevant consideration is that many of the documents sought by these applications were included in the trial bundles and would, but for the settlement of the main proceedings before any trial, have been referred to in open court. I am very doubtful that this is a relevant consideration although I am prepared to assume in favour of R&H that this is a relevant consideration which I can and should take into account; and I do so.

Third, reliance is placed on the fact that the SFO gave its consent for the use of 10 documents for the purpose of certain contempt proceedings in Guernsey. The details are complicated; and it is true that the SFO did give such consent. However, in my view, the consent which the SFO gave was for a limited and specific purpose; and provides no assistance to R&H in the present context.

Fourth, emphasis is placed on what is said to be the “factual overlap” between the main proceedings and the AGA. In particular, it is said that both sets of proceedings concern (i) the same underlying transactions, relationships and parties all related to Kaupthing’s lending to Oscatello; (ii) the effects of the Guernsey Proceedings on the SFO criminal investigation; (iii) the effects of the SFO criminal investigation on the Guernsey Proceedings; and (iv) the complex narrative of interaction during the period 2008-2012 between Investec, R20, the JLs, GT and the SFO. On this basis, it was submitted that this is not a case where documents are sought to be used for some wholly extraneous purpose or collateral purpose; and that from R&H’s (and RT’s) perspective, the main proceedings and the Guernsey Proceedings are both concerned with discovering the truth about redress for the errors in the SFO criminal investigation and the consequences of those errors. In broad terms, this may be right. However, in my view, it is necessary to understand specifically the potential relevance of the particular documents which are the subject of the present applications; and to focus on what, if any, utility such documents are likely to have in the Guernsey Proceedings.

Against that background, I turn to consider the five main applications. For the avoidance of doubt, I repeat that in considering the separate applications, I bear very much in mind all the points which have been advanced in favour of R&H and referred to above.

The first point to note is that 9 of the 78 documents were the subject of the previous unsuccessful 57 documents application and 2 were the subject of the previous unsuccessful 22 documents application. As submitted by Mr Segan on behalf of the SFO, attempting to raise repeat issues in successive applications is impermissible absent a significant change in circumstances or in the applicant’s knowledge. In that context, he relied on Chanel Ltd v FW Woolworth & Co Ltd [1981] 1 WLR 485 per Buckley LJ at pp492-493; Possfund Custodian Trustee Ltd v McGrigor Donald [1996] 1 WLR 1351 per Lightman J at p1356; and Ryan v Friction Dynamics Ltd [2001] C.P. Rep. 75. Here, I do not consider that there is any or any significant change in circumstances which might justify this repeated application in respect of these particular documents. On this basis, it is my conclusion that the application in relation to those 11 documents must fail on this ground alone.

I bear very much in mind the points advanced on behalf of R&H in support of this application. However, for the following reasons, it is my conclusion that R&H has failed to show special circumstances which constitute a cogent reason for permitting collateral use of any of these 78/15 documents.

First, the starting point is that all of these 78/15 documents were generated by the SFO and formed part of its criminal investigations. As confirmed in the CA Judgment, absent special circumstances, the Court will not ordinarily permit use of such documents for a collateral purpose – see paragraphs 66(iv) and 83 of the CA Judgment. In the present context, Miss Newman drew attention to what she described as “three critical points” viz (i) the aspect of the SFO’s criminal investigation which is evidenced by the documents in question for which collateral use permission is sought is the very aspect of the investigation that was highlighted by the Divisional Court; (ii) GT/the JLs were not disinterested members of the public reluctantly performing a civic duty by assisting the SFO and, to that extent, the rationale underlying the public policy argument against collateral use of documents loses much of its force; and (iii) a significant amount of information about the investigation is already in the public domain. As to these submissions (i) the focus of the decision of the Divisional Court was, in my view, much narrower than Miss Newman suggests; (ii) the assertion that GT/the JLs were not disinterested members of the public is a matter in dispute and, in any event, I am far from convinced that such (alleged) fact would undermine the general policy against collateral use of such type of documents; and (iii) the alleged need to be able to deploy these documents in the Guernsey Proceedings would seem somewhat inconsistent with the suggestion that a significant amount of information about the investigation is already in the public domain. For these reasons, I am unpersuaded that these so-called “critical points” undermine the general policy against collateral use of documents of this kind. Moreover, whatever strength these points might have, their potential relevance would seem little, if any, different than in the previous applications.

Second, I accept Mr Segan’s submission that the claimed relevance and probative value of the 78/15 documents, as regards the Guernsey proceedings, is substantially the same or very similar both legally and factually as was relied upon in the 22 and 57 documents applications. It is right to point out that in the skeleton argument originally submitted on behalf of R&H, it was suggested (or at least it was my impression) that this was not the case; that the main thrust of the case advanced in relation to these 78/15 documents was markedly different from that previously advanced in support of the previous applications; and that this was apparent from the propositions of fact, the AGA and the schedule of relevance submitted in respect of the 78/15 documents. However, in both his further written and oral submissions, I understood Mr Allcock to accept that ultimately the suggested relevance and probative value of the 78/15 documents was, at least broadly, the same as the documents in the previous applications. In particular:

Third, the application is subject to objections and/or a lack of positive consent from Deutsche Bank, Grant Thornton UK and the Guernsey Crown Advocate and no positive consent has been forthcoming from Goldman Sachs, Logos Legal Services, the Icelandic Special Prosecutor’s office and Weil, Gotshal and Manges. Further ITGL and the JLs are not offering their consent.

Fourth, to accede to these applications would, in my view, risk substantial unfairness to the SFO in the Guernsey Proceedings. I dealt with a similar point briefly in paragraph 29 of my Judgment in relation to the 57 documents applications. Having heard further argument from Mr Segan on this point, my views in this regard have strengthened. In particular, I am persuaded that it would be very unfair on the SFO to permit R&H to use the limited documents which it has selected from the total quantity of documents disclosed by the SFO in the main proceedings for the purpose of advancing at least certain of the propositions of fact referred to above. In response, Mr Allcock submitted that the SFO could, if it wanted, in effect “release” other documents for use in the Guernsey Proceedings. However, in my view, this misses the point. The SFO do not wish to do so; it is not a party to the Guernsey Proceedings and, at the sake of repetition, there is a strong public interest in maintaining the confidentiality of these documents.

For all these reasons, I refuse to grant an order under CPR 31.22(1)(b) to permit the collateral use of the 78/15 documents in the Guernsey Proceedings.

I can deal with this application quite shortly. As already stated above, the application is made for permission to use extracts from certain witness statements served by the SFO in the main proceedings before those proceedings settled under CPR 32.12(2)(b) although, for reasons stated above, it was common ground that CPR 31.22 is also engaged.

Although there is little authority, there was broad agreement as to the principles applicable in relation to the grant of permission under CPR 32.12. In summary, the discretion on the part of the Court to give permission to allow collateral use of a witness statement is to be exercised by reference to similar, but not identical, considerations as those which apply in respect of CPR 31.22: see the unreported decision of Colman J in Hollywood Realisations Trust Ltd v Lexington Insurance Co & Ors [2003] EWHC 996 (Comm); and Langstone v Willers (25 January 2013, Mark Cawson QC).

I have already made reference to the fact that in the extracts of the witness statements that R&H now seek to use and to refer to in the Guernsey Proceedings, there are various references to the SFO disclosure documents. According to Mr Segan, there are no fewer than 194 such references. Thus, Mr Segan submitted, in truth the application is not merely an application to make collateral use of the extracts of these witness statements, but also an application to make collateral use of information derived from a considerable number of the SFO’s disclosure documents. In a sense, there is a difference between the documents disclosed by the SFO and the witness statements that they served. In particular, the documents were disclosed by the SFO pursuant to its disclosure obligations i.e. under compulsion, whereas there was no equivalent “compulsion” on the SFO to serve any witness statements. Although that distinction may be said to be somewhat unrealistic, I bear it well in mind. However, ultimately it remains necessary to consider whether or not to grant the relevant permission in the circumstances of the present case.

Again, I bear very much in mind the points advanced on behalf of R&H in support of this application. However, it is my conclusion that the balancing exercise comes down against permitting collateral use of these extracts broadly for the reasons given by Mr Segan.

First, it seems to me that the public interest in refusing to permit collateral use of information derived from disclosure documents applies with the same force in the context of the witness statements application because, as already explained, the passages of those statements which R&H seeks to obtain permission to deploy contain information from a large number of the SFO’s disclosure documents.

Second, that public interest is particularly strong in respect of information relating to a criminal investigation for reasons explained in the CA Judgment and which it is unnecessary to repeat.

Third, the extracts from these witness statements will, at best, be of limited utility in the Guernsey Proceedings for reasons similar to those given in relation to the previous applications (again as explained in the Judgment of Jackson LJ) and the 78/15 documents applications.

Fourth, all of the witnesses have been consulted concerning the present application and each has declined to consent to the use of their witness statements in the Guernsey Proceedings. As submitted by Mr Segan, a witness who volunteers to give evidence in a civil case which settles before trial is, in my judgment, generally entitled to have their wishes respected as to any future collateral use of his or her witness statement. As submitted by Mr Segan, it seems to me that a Court should be slow to grant permission for collateral use against the wishes of the witness in question. Mr Segan submitted that this was particularly relevant in the present case because of the wider public interest in ensuring that public servants and former public servants continue to be willing to give evidence voluntarily, as they frequently do, in civil proceedings which concern their duties or former duties. To allow collateral use of such evidence would, submitted Mr Segan, damage that public interest. In support of that submission, Mr Segan relied upon the evidence of Mr Emson on behalf of the SFO:

“Most of the SFO’s witnesses in the Proceedings were former employees of the SFO, including four of the Six Witnesses (only PB and EH are still members of the SFO). Some of the witnesses who were former employees of the SFO had significant reservations about becoming involved in the litigation, because of the seriousness and magnitude of the claims being levelled by the VT Claimants and RT Claimants, but they agreed to provide evidence voluntarily despite those reservations. I believe it would have been much harder, if not impossible, for the SFO to obtain the evidence of some of those individuals voluntarily if they had been aware of the risk that their witness statements would end up being used by RT in support of his position in wholly extraneous proceedings, rather than in defence of the SFO in the Proceedings brought by the RT Claimants (and VT Claimants). I also believe, therefore, that if RT (R&H) were to be given permission to make collateral use of the Six Statements it would probably be more difficult for the SFO or a similar public body to obtain voluntary cooperation from ex-employees in future cases.”

I am very doubtful, to say the least, that public servants and former public servants stand in any special position. For present purposes, I put this particular point on one side; but the general point remains.

Fifth, the present application, like the previous applications, risks substantial unfairness in Guernsey for reasons which I do not propose to repeat.

Sixth, three parties who are potentially affected by this application have not given their consent.

For all these reasons I refuse to make an order for the collateral use of the extracts from these witness statements under CPR 32.12(2)(b).

The target of this application is 14 documents consisting of GT’s notes of various meetings held between the SFO and GT in 2009 to 2011 which took place during the course of, and in relation to, the SFO investigation into RT and VT and their respective business interests between December 2009 and October 2012. Their subject matter is private conversations between GT and the SFO in relation to that SFO investigation. Although directed at GT, the present application is opposed by both GT and also the SFO.

Those 14 documents constitute some of the 22 documents disclosed by GT in the main proceedings in April and May 2014. GT was not a party to those proceedings. Instead, GT disclosed these documents under CPR 31.17 on the express and agreed basis that they were subject to the CPR 31.22 undertaking prohibiting collateral use without the Court’s permission – although, for the avoidance of doubt, Mr Salzedo did not suggest that the existence of such express undertaking affected the approach of the Court in considering the present application. I have already dealt above with Mr Salzedo’s broader propositions. I do not propose to repeat what I have already stated in relation thereto.

In considering this application, it seems to me that the relevant principles are similar to those in relation to the 22 documents application, the 57 documents application and the 78/15 documents application. In summary, the burden lies on R&H to show special circumstances constituting a cogent reason for permitting collateral use.

Once again, I bear well in mind the various matters relied on by R&H in support of the application as referred to above. However, I am not persuaded that there are special circumstances that constitute a cogent reason for permitting collateral use of these documents in the Guernsey Proceedings for the following reasons.

First, although these 14 documents were not generated by the SFO itself, they constitute confidential records of such investigation. In particular, they contain details of private conversations between the SFO and GT which was a third party co-operating with the SFO investigations and details of information provided by GT to the SFO in that context. For example, the documents contain information about (i) private communications between GT and the SFO; (ii) the SFO’s investigative methods; (iii) communications with foreign investigatory or prosecuting authorities (including the Icelandic Special Prosecutor, the Luxembourg Prosecutor and Europol); and (iv) communications with domestic prosecuting or regulatory authorities (the City of London Police and the FSA).

On behalf of R&H, it was submitted that the fact that these documents are GT’s own notes and not the SFO’s notes is a relevant distinction. However, as submitted by Mr Salzedo, I do not consider that this is a material difference – at least in the particular circumstances of the present case. The public interest in preserving the integrity of criminal investigations applies just as strongly to GT’s notes of meetings with the SFO as it does to the SFO’s own notes of those meetings. Moreover, as submitted by Mr Salzedo, the public interest exists not only to protect investigating authorities, but also to protect those, such as GT, who provide information to investigatory authorities from wider dissemination of that information.

Second, as submitted by Mr Salzedo, these 14 documents will, in my judgment, be of limited if any utility in the Guernsey Proceedings. In reaching this conclusion, I have considered carefully the schedule of relevance in relation to these documents. For present purposes, I am prepared to assume in favour of R&H that the documents arguably show a “free flow” of information between the JLs and GT; and that, contrary to Mr Salzedo’s submission, the documents arguably show that the JLs had a legal right to call for certain other documents although I should emphasise that I have considerable doubts about both these points. However, for the reasons set out in Mr Salzedo’s skeleton argument at paragraphs 36-55 (and which I refrain from summarising in this Public Judgment), I am also very doubtful as to at least some of the factual propositions which, it is said on behalf of R&H, can be derived or inferred from the particular documents; and, at the end of the day, it is my conclusion that the documents will, at best, have limited utility for reasons similar to those given by Jackson LJ in his Judgment in the Court of Appeal in relation to the 22 documents.

Third, like the SFO, GT is not a party to the Guernsey Proceedings and, as submitted by Mr Salzedo, has no means of controlling the deployment of these documents in the Guernsey Proceedings let alone responding to or addressing any allegations made in those proceedings on the basis of these documents. As further submitted by Mr Salzedo, I agree that this is particularly pertinent given the serious nature of the allegations made against GT as summarised in the relevant schedule of relevance; and that there would therefore be an inherent injustice – or at least a risk of injustice – in permitting R&H to deploy this small selection of documents in the Guernsey Proceedings.

For all these reasons, I refuse to make an order to permit the collateral use of these 14 documents in the Guernsey Proceedings.

This is an application by R&H for permission pursuant to CPR 31.22 (1) (b) to use 6 reports produced by GT but belonging to the second respondents (the “JLs”) as listed in Schedule B to the draft order which accompanied the application in the Guernsey Proceedings. As to this application, the JLs raised a threshold point viz that R&H and the other claimants and/or their lawyers and/or their agents have knowingly and repeatedly breached both CPR 31.2 and a previous order I made in the main proceedings dated 26 July 2013. On this basis, the JLs invited the Court to strike out R&H’s application as an abuse of process.

In this context, Mr Brownbill made two main points. First, he submitted that it is important to appreciate that these reports have never been disclosed to R&H in its capacity as the trustee of the TDT; nor have the parties to whom those documents were disclosed ever had the JLs’ consent or the Court’s permission to provide those documents to R&H in that capacity or to R&H’s lawyers and/or agents. Rather, Mr Brownbill submitted that these reports were disclosed to R&H in its capacity as trustee of various other trusts, as one of the parties that made the original application for third party disclosure of those documents, but R&H has never had any right to obtain or use (by itself or through its agents or lawyers) these reports in its capacity as trustee of the TDT. In particular, Mr Brownbill submitted that it is axiomatic that R&H, as a professional trustee, is not permitted to use information which it obtains in its capacity as trustee of one trust in connection with the administration of another trust of which it is also trustee. Further, Mr Brownbill submitted that this was the position accepted at previous hearings before this Court and, indeed, by lawyers acting on behalf of R&H in the Guernsey Proceedings.

This gave rise to some debate as to the general nature of a trustee’s obligations. However, in the event, I do not consider that it is necessary to engage in that interesting debate. In my view, the short answer to Mr Brownbill’s application to strike out is the one given by Mr Cunningham QC based upon an order I made by consent dated 8 December 2014 in the following terms:

“By consent, permission is granted for [R&H] to be joined in these proceedings in its capacity as trustee of the [TDT] for the purposes of making applications for collateral use of documents under CPR r.31.22 and r.32.12.”

The application which led to the making of that order by consent was supported by the witness statement of Mr Wilkinson for the specific purpose of enabling R&H in its capacity as trustee of the TDT to make applications for collateral use of documents. As such, it seems to me that the main thrust of Mr Brownbill’s application that the making of the present application by R&H for an order for permission to use these reports for a collateral purpose in the Guernsey Proceedings is an abuse of process and/or some kind of contempt is unsustainable. Mr Brownbill sought to avoid this conclusion by saying, in effect, that although the effect of this order was to permit R&H to make an application for permission for collateral use of documents, nevertheless before issuing such application and indeed before even considering whether or not to make such application, it was incumbent on R&H to apply to the Court for permission to consider these documents for that purpose. In support of that submission, Mr Brownbill relied upon my own decision in what has been referred to as the Criminal Advice Judgment which I delivered in these proceedings and which is reported at [2014] EWHC 1315 in particular at [10-15]. I do not resile from what I said in that case. However, Mr Brownbill’s submission is, in my view, both unrealistic and untenable having regard to the terms of the order which I made by consent. It was for these brief reasons, that I rejected the JLs’ application to strike out R&H’s application for permission to use these 6 reports for collateral purposes in the Guernsey Proceedings; and so I now turn to the merits of the application.

At the outset, it is important to emphasise that this application stands in a very different position from the other applications for a number of reasons.

First, as I have already stated, these 6 reports were not produced by the SFO. Nor do they contain notes of any meetings with the SFO. The JLs were not advisors to the SFO, nor were they witnesses to any matters being investigated. Nor did they have the same interests – indeed, Mr Allcock submitted that their interests conflicted with those of the SFO and that it was in pursuance of those different interests, and not the SFO investigation, that GT partners and staff (including the UK based Joint Liquidator, Steve Akers) engaged in this relationship with the SFO, attended various meetings with the SFO and created these documents. It is true that the SFO was permitted to look at the reports in the course of its investigation and, for present purposes, I am prepared to assume that they were relied on heavily in persuading the SFO to take the action which they did against RT and VT – although this was in dispute. Be all this as it may, it cannot, in my view, be said that there is any “special” public interest against collateral use (as, for example, was considered by Jackson LJ in the CA Judgment) other than the general principle that is contained in CPR 31.22.

Second, unlike the SFO or GT, the JLs are a party to the Guernsey Proceedings. If this Court were to grant permission for the collateral use of these reports in the Guernsey Proceedings, the JLs would be in a position to make appropriate representations to the Court of Appeal in Guernsey with regard to the admissibility and relevance of the reports in the pending appeal. To that extent, any risk of unfairness to the JLs is, in my view, significantly less than in the case of the SFO or GT.

Third, the absence of information barriers between the JLs and the other ‘teams’ within GT is the basis of one of the AGA (paragraph 30) and is a point which is particularly well supported by the 6 reports – primarily because they were commissioned by the JLs for the purposes of the liquidation, yet they nevertheless formed a critical part of the information sharing arrangement with the SFO. In that context, it was submitted on behalf of R&H that that ground of appeal (paragraph 30) has a different significance to those pleaded in paragraph 28 (to which the ‘22 documents’ were mostly relevant) and paragraph 29 (to which most of the ‘57 documents’ and the ‘78 documents’ were relevant); that the difference is that this paragraph 30 is an independent reason for the ordering of a retrial; that it has nothing to do with either the credibility of the witnesses at trial or the absence of evidence from Mr Rabie; that in respect of this ground of appeal, therefore, and the application for collateral use of documents which supports it, arguments based on paragraphs 78(vi) and 78(iii) of the (English) Court of Appeal decision on the 22 documents are not relevant; and that although the same point can be and is made (to some extent at least) in respect of the ‘78 documents’, some of which also support paragraph 30 of the Grounds of Appeal, the distinction is particularly important in the context of the 6 reports. (I should mention that Mr Allcock also submitted that neither GT/the JLs nor the SFO seem to have sought or obtained any assurances of confidentiality from the other in relation to the ideas, work product and opinions which GT/the JLs shared with the SFO; but, in my view, this is of little, if any, weight, in the present context.)

I bear all these points well in mind and also the points generally advanced on behalf of R&H in support of this application as referred to earlier in this Judgment which I do not repeat. However, as was common ground, the burden remains on R&H under CPR 31.22 to persuade the Court that there are special circumstances which constitute a cogent reason to justify the court making an order permitting the collateral use of documents; and, in my judgment, R&H has not met that burden and the balancing exercise is against the grant of such permission for the following reasons.

First, it seems to me important to bear in mind that R&H has already made an application in the Guernsey Proceedings for disclosure of the reports which failed before LB Chadwick for two main reasons as appears from a Judgment which he delivered on 24 September 2013 after conclusion of the main trial but before delivering his main Judgment viz (i) the application was (even then) too late – see paragraph 30; and (ii) he was not persuaded that there was any real likelihood that the reports in question would lead him to determine issues that he had to decide in those proceedings in terms which would differ from those which he had already heard in the main trial – see paragraph 31. An appeal against that Judgment was rejected by the Court of Appeal in Guernsey for reasons which appear in paragraphs 60-68 of the Judgment of that Court delivered by McNeill JA.

Against that background, Mr Brownbill submitted that the present application was, in effect, an abuse of process and should be rejected on that basis. He may be right. However, it is unnecessary to go that far. In my judgment, the foregoing indicates (at the very least) that it is highly unlikely that the reports the subject of the current application will now be admitted at this very late stage in the Guernsey Proceedings; and that this militates strongly against the grant of permission for collateral use.

Second, more generally, it is my conclusion that, at best, the reports are likely to have very limited utility in the Guernsey Proceedings. In that context, Mr Brownbill advanced a number of detailed points with regard to the schedule of relevance relied upon by R&H in this context. I do not propose to describe that exercise in this public Judgment. For present purposes, it is sufficient to say that I accept that various of the assertions made in the schedule of relevance as to what may supposedly be derived or inferred from these reports are not well founded. I have already identified the main points which R&H seeks to advance in the Guernsey Proceedings but, at the risk of repetition and as summarised by Mr Brownbill, it is, in essence, that the JLs did not make full disclosure in the Guernsey Proceedings; that the JLs and Investec intentionally prolonged the SFO investigation and, as a result: (i) undermined the credibility of R&H’s witnesses at trial and so caused LB Chadwick to favour the evidence of Investec’s witnesses; (ii) made it difficult to get hold of evidence from Kaupthing as to whether it would have consented to the novation of the intercompany loans because (in particular) Mr Gunnarson was afraid of the SFO investigation; and (iii) caused Investec’s witnesses to lie about their knowledge of accounting entries so as to avoid investigation by the SFO into alleged criminal “insolvent trading”. However, as submitted by Mr Brownbill (i) none of this can be established from these reports; (ii) there is no basis for the allegations that Investec’s witnesses changed their evidence because of a fear that the SFO might investigate them for a criminal offence of “insolvent trading” (indeed, the evidence in relation to Mr Gunnarson is to the contrary) or that the JLs intentionally prolonged the SFO investigation; (iii) what appear to be the essential facts to be gleaned from these reports and relied upon by R&H were before the Guernsey court at trial; and (iv) collateral use of material disclosed in these proceedings on the basis of the very same “narrative” has already been refused on at least three separate occasions by the Court and by the Court of Appeal. I should say that the foregoing is only a summary of the points advanced by Mr Brownbill in his skeleton argument (in particular at paragraphs 52-64) and in his oral submissions. However, it is unnecessary to expand upon them further in this Judgment.

For these reasons, I refuse to make an order permitting the collateral use of these reports in the Guernsey Proceedings.

By this application, R&H seeks an order, in effect, for a declaration that pursuant to CPR 31.22(1)(a) certain documents have “… been read to or by the Court, or referred to, at a hearing which has been held in public …”; and that therefore the restriction on the use of such documents no longer applies.

The hearings in question were all interlocutory hearings viz (i) on 10 July 2013, a hearing of an application by the SFO to extend the disclosure deadline and to amend the original trial timetable when 2 of the documents in question were allegedly referred to; (ii) on 5-6 March 2014, a hearing of certain disclosure and “keyword” applications when 23 of the documents in question were allegedly referred to; and (iii) on 7-8 April 2014, a hearing concerning various applications including (a) an application by the RT claimants to amend their pleadings to introduce a misfeasance claim; and (b) a further application by the RT claimants under CPR 31.22(1)(b) referred to as the Criminal/Guernsey Advice application.

It is common ground that these hearings were “public”. It is also common ground that CPR 31.22(1)(a) applies to interlocutory hearings; and that for that rule to be engaged, and the collateral use restriction discharged, there is no requirement that the document is actually referred to or read out loud during the course of oral argument at the hearing. As submitted by Lord Pannick QC, direct oral reference is of course sufficient to engage the exception to the rule, but is not necessary; on the contrary, the case law makes clear (by close analogy with the question of public access to documents on the Court record and CPR 5.4C) that this rule is concerned with ‘open justice’ and in particular that the modern practice of witness statements standing as evidence, and Judges reading skeleton arguments and other documents in private in advance of hearings, should not be allowed to, and so does not, limit the application of CPR 31.22(1)(a), nor indeed the rights of the public to apply for copies of documents on the court record. In that context, Lord Pannick referred, in particular, to Lilly Icos Ltd v Pfizer Ltd (No 2) [2002] EWCA Civ 2, which sets out the relevant principles with regard to CPR 31.22(1)(a) at paragraphs 6-9, building on the decisions in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 and Barings v Coopers & Lybrands [2000] 1 WLR 2353. More recent applications of these principles can be found in NAB v Serco Limited [2014] EWHC 1225 (QB) at [27] and Eurasian Natural Resources Corp Ltd v Dechert LLP [2014] EWHC 3389 (Ch) at [57]. Phipson on Evidence (18^th Edn) and Hollander on Documentary Evidence (11^th Edn) at 27-39 set out the same principles, derived from Connaught and Barings. None of the foregoing was controversial.

The applications as originally advanced concerned some 35 documents. Of those, the SFO accepted that some 22 documents had indeed been “read to or by the Court, or referred to, at a hearing which has been held in public”. As to the balance, there was initially some dispute as to whether certain of such documents had been read to or by the Court or referred to in such circumstances. In the event, such dispute was, in large part, resolved by agreement. Lord Pannick abandoned his application in relation to certain of these documents; and Mr Segan abandoned his objection in respect of others. The position was clarified with regard to one other document (i.e. SFO-031802). There remained one small issue concerning one particular document referred to as document 2 in the 57 documents schedule. For present purposes it is sufficient to say that, in my judgment, this document was not read by the Court or referred to at the relevant hearing.

The result is that in respect of this application I am concerned with a total of 26 documents which, subject to possible correction by Counsel and using the numbering referred to by Mr Segan, are documents 3, 5, 6, 21, 24, 26, 30, 44, 50 and 55 from the 57 documents schedule; documents 1, 2, 10, 13, 17, 19, 34, 40, 44 and 45 from the 78 documents schedule; and documents 11A, 11B, 38A, 53A, 53B and 78D from the additional 15 documents schedule.

It is prima facie common ground that all those documents have, in effect, lost the protection afforded by CPR 31.22(1). Notwithstanding, the SFO advanced what is, in effect, a counter-application under CPR 31.22(2) for an order re-imposing protection in respect of such documents. CPR 31.22(2) provides:

“The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.”

This provision expressly permits an order such as the SFO seeks, the effect of which would be to restore CPR 31.22 protection notwithstanding the engagement of CPR 31.22(1)(a). In effect, CPR 31.22(2) enables the operation of CPR 31.22(1)(a) to be reversed.

Lord Pannick submitted that the principle of open/public justice is of critical importance in the context of an application under CPR 31.22(2), in contrast to a permission application made under CPR 31.22(1)(b). In particular, Lord Pannick submitted that in Lilly Icos the Court of Appeal set out at [25] 6 key principles concerning the exercise of the power in CPR 31.22(2) of which the first 5 were particularly pertinent in this case:

Further, Lord Pannick emphasised that open justice is a fundamental principle of the common law, absent a compelling reason to the contrary. In that context, he relied, in particular, on the statement of general principle by Lord Reed in A v BBC [2014] 2 WLR 1243 at [23]; and also to Lord Reed’s reference with approval at [29] to the recognition by Viscount Haldane LC in Scott v Scott [1913] AC 417, 437-438 that the principle of open justice is subject to exceptions:

“While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done ... It may often be necessary, in order to attain its primary object, that the Court should exclude the public ... The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject matter, illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.”

In addition, Lord Pannick referred me to the important decision of the Court of Appeal in R (Guardian News & Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618 in particular where Toulson LJ (with whom Lord Neuberger MR and Hooper LJ agreed) stated at paragraph 1:

“Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes - who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against impropriety. It keeps the judge while trying under trial”.”

Lord Pannick also referred me to paragraphs 2-4, 76-77, 82-83 and 85 of that Judgment, in particular at paragraph 76 where Toulson LJ noted that The Guardian newspaper had “a serious journalistic purpose in seeking access to the documents”; and at paragraph 77 where Toulson LJ stated: “Unless some strong contrary argument can be made out, the courts should assist rather than impede such an exercise.” In addition, Lord Pannick emphasised that the law also recognises a general “constitutional principle” of “accountability and transparency”, absent a compelling reason to the contrary: see Kennedy v Information Commissioner [2014] 2 WLR 808 at [47] and [55-56].

Here, Lord Pannick submitted that R&H has a serious purpose in seeking to use the documents in the Guernsey Proceedings. In particular, he emphasised that the application of CPR 31.22(2) arises in the context of the right to a fair trial, recognised by Article 6 of the European Convention – a further constitutional principle recognised by the common law. To deny R&H the use in the Guernsey Proceedings of information which may vindicate its cause and which information has already been disclosed in court proceedings requires a very potent public interest justification. In that context, he referred to the decision of the European Court of Human Rights in Wierzbicki v Poland (2004) 38 EHRR 805 at paragraph 39:

“Article 6 of the Convention does not explicitly guarantee the right to have witnesses called or other evidence admitted by a court in civil proceedings. Nevertheless, any restriction imposed on the right of a party to civil proceedings to call witnesses and to adduce other evidence in support of his case must be consistent with the requirements of a fair trial within the meaning of paragraph 1 of the Article, including the principle of equality of arms. As regards litigation involving opposing private interests, equality of arms implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent ...”

In addition, he referred me to the decision in McGinley and Egan v United Kingdom (1998) 27 EHRR 1 at paragraph 86:

“The Court considers that, if it were the case that the respondent State had, without good cause, prevented the applicants from gaining access to, or falsely denied the existence of, documents in its possession which would have assisted them in establishing before the [Pensions Appeal Tribunal] that they had been exposed to dangerous levels of radiation, this would have been to deny them a fair hearing in violation of Article 6(1).”

Thus, Lord Pannick submitted that by reason of the constitutional principles of open justice and transparency (arising in this case in the context of the right to a fair trial of the Guernsey proceedings), CPR 31.22(2) does not involve the court exercising a general discretion. Rather the court should proceed on the basis that there is a strong presumption in favour of allowing disclosure which can be overridden only by a compelling public interest.

I fully accept Lord Pannick’s submissions as summarised above. In particular, I fully accept the general and very high importance of open justice in proceedings. This was also accepted by Mr Segan on behalf of the SFO. I also fully accept that the test or approach of the court under CPR 31.22(2) is different from the test or approach of the court under CPR 31.22(1)(b). In particular, whereas under CPR 31.22(1)(b) it is for the applicant seeking to obtain the permission of the court to use the documents for a collateral purpose to persuade the court that there are special circumstances which constitute a cogent reason to justify the court making such order, the position under CPR 31.22(2) is not merely that the burden is on the applicant to justify the restriction/ prohibition being imposed but also that the applicant who wishes to restrict or prohibit the use of documents which have been read out or referred to in court must show “very good reasons” for overriding the principles of open justice and transparency. The words “very good reasons” appear in the judgment of Buxton LJ in Lilly Icos. Again, this was, as I understood, uncontroversial between the parties i.e. it was, in effect, common ground between Mr Segan and Lord Pannick that this was the relevant test on these applications.

Mr Segan raised one possible caveat. In particular, he submitted that it was important to appreciate the purpose of CPR 31.22(1)(a) which was, he said, in particular to enable a member of the public to follow trials in which an increasing amount of argument and evidence was presented only in written form: see Lilly Icos at para 9 per Buxton LJ. Whilst accepting fully what is there stated, I do not think it was intended to suggest that the purpose of CPR 31.22(1)(a) is necessarily so limited. However, in exercising the discretion under CPR 31.22(2), I do accept Mr Segan’s further submission that the significance or otherwise, as regards the proceedings as a whole, of a reference to a document in open court is potentially relevant in deciding whether to make an order. In that context, Mr Segan drew my attention to a passage in the judgment of Bean J in NAB v Serco Ltd & another [2014] EWHC 1225 (QB):

“… the rule governing the present application is CPR 31.22(2), the power to restrict the use of a document referred to at a public hearing, rather than CPR 31.22(1)(b), the power to give permission to use disclosed documents not referred to in public. But it would be curious if in a case like this, where the reference to the document at the public hearing was marginal and gratuitous, there were to be any great difference between the proper approach under the two rules. There is force in Mr Johnson’s submission that the difference between the two is only one of the burden of proof and that it is unlikely that the burden of proof would be the basis of my decision in this case.” (emphasis added)

Lord Pannick submitted that this approach to CPR 31.22(2) was erroneous. In particular, he submitted that Bean J failed to recognise that there is a strong presumption that documents referred to in open court should be disclosed, and failed to recognise why there is such a presumption as Buxton LJ explained in Lilly Icos at paragraphs 7-9 and 25(i). I do not accept that submission. In my view, Bean J was merely stating the obvious in relation to circumstances where the reference to the document at the public hearing was “marginal and gratuitous”. Be that as it may, the test is as I have stated above.

Against that background and notwithstanding Lord Pannick’s forceful submissions, there are, in my judgment, very good reasons here for making an order under CPR 31.22(2) in effect restoring the protection afforded under CPR 31.22(1) in respect of the relevant documents. I reach this conclusion broadly for the reasons given by Mr Segan as set out below.

First, all the documents relate to the SFO’s criminal investigation and therefore engage the strong public interest against collateral use as referred to in my earlier Judgments and in the CA Judgment. It is unnecessary to set out again the matters there referred to.

Second, the loss of the CPR 31.22 protection in the present case occurred adventitiously, by reason of marginal (or at least fairly minimal) references in the context of the proceedings as a whole. Lord Pannick emphasised, rightly in my view, that the mere fact that the documents had been read to or referred to the Court in the course of interlocutory proceedings did not, of itself, constitute a very good reason to grant the permission sought. I agree. Nevertheless, in deciding whether or not to make an Order under CPR 31.22(2), it is, as I have already stated, relevant to look at the significance of the documents in the context of the particular proceedings in which the document in question was read or referred to and the circumstances in which the documents were produced. In particular, that would seem to be consistent with what was stated in paragraph 26 of Lilly Icos. It is unnecessary, in my view, to explain in detail the precise circumstances in which these documents came to be referred to in the course of the previous proceedings. For present purposes, it is sufficient to say that this is not a case where any of the documents were referred to in the course of a trial with live witness evidence or cross-examination. There was no trial; and the main proceedings settled some time ago. Nor do I consider, if it is relevant, that the purpose for which R&H now wishes to use these documents is to enable the public to follow evidence in the course of these proceedings. Rather, the documents were described in, and exhibited to, 3 witness statements which were given by solicitors engaged by RT and VT in the main action for the purpose of procedural applications specifically (i) the third witness statement of Miss Rickard dated 17 February 2014; (ii) the third witness statement of Mr Jeffrey dated 24 February 2014; and (iii) the fifth witness statement of Miss Rickard dated 4 April 2014.

Third, the documents will at best be of limited utility in the Guernsey Proceedings. It is fair to say that I have not gone through all of the documents in issue individually. Certain of the documents comprise part of the 57 documents application; and others form part of the 78 documents application. However, it is not suggested that the other documents are of any different character, relevance or probative value. Lord Pannick did not argue to the contrary. Rather he submitted that the potential utility or otherwise of the documents in the Guernsey proceedings was irrelevant to the question of the exercise of the discretion of the Court under CPR 31.22(2). I do not accept that submission. On the contrary, in my view, that follows from the reasoning and decision of the Court of Appeal in Lilly Icos.

Fourth, the contents of the documents have not, so far as anybody is aware, been any more widely disclosed than to the parties.

Fifth, the SFO’s overall unfairness point, which I have already considered in the context of the 78/15 documents and witness statements applications, applies equally in the present context.

For all these reasons, it is my conclusion that an order should now be made under CPR 31.22(2) prohibiting the collateral use of the 26 documents referred to above.

For all these reasons, I refuse the applications by R&H under CPR 31.22(1) and CPR 32.12; and grant the SFO’s application under CPR 31.22(2). Counsel are requested to prepare a draft order to reflect the terms of this Judgment for approval. Failing agreement, I will deal with any outstanding issues.