Barings plc v Coopers & Lybrand (Barings Futures (Singapore) Pte Ltd (In Liquidation) v Mattar)

Information received for two purposes falls within section 82 of the Banking Act 1987 where one is a significant Banking Act purpose. Dual purpose does not itself remove the statutory protection. The related criminal offence requires knowledge of the circumstances bringing the information within the restriction.

Evidence placed before and read by a judge for deciding proceedings ordinarily enters the public domain, whether read in or out of court. Once documents are put before the court to be read in evidence, the party asserting continued confidentiality must establish why they did not enter the public domain.

Deloitte & Touche appealed against Evans-Lombe J's declaration that transcripts of interviews conducted during the investigation into the collapse of the Barings Group remained subject to Part V of the Banking Act 1987. The transcripts were gathered through a single investigation serving both an inquiry by the Board of Banking Supervision and a statutory investigation under section 41.

Some transcripts were later exhibited to an affidavit and used in company-director disqualification proceedings. The appeal raised two questions: whether the information had been received under or for the purposes of the 1987 Act, and whether its use in those proceedings meant that it had been made available to the public under section 82(2).

1. The appeal was dismissed on the first issue and allowed on the second. Lord Woolf MR delivered the judgment of the court, with Robert Walker LJ and Smith J.

2. The interviews formed one investigation conducted for two overlapping purposes. The section 41 inquiry necessarily served Banking Act purposes, and the Board of Banking Supervision acted within its statutory advisory role. It followed that the transcripts were prima facie information received under or for the purposes of the Banking Act 1987 and attracted section 82(1) protection.

3. A duality of purpose removes that protection only where the non-Banking Act purpose is dominant and the Banking Act purpose is insignificant. The contrary approach in BCCI v Price Waterhouse [1998] Ch 84 could not be supported. Section 82(3) did not impose absolute criminal liability. The offence required knowledge of the circumstances which brought the information within section 82(1).

4. Open justice requires court practices adopted for efficient litigation to preserve the public's ability to know what occurs in the proceedings. Documents relied upon as evidence enter the public domain if read by the judge in or out of court as part of determining the case, subject to particular circumstances making that result contrary to the interests of justice.

5. Once documents have been put before the court to be read in evidence, the person asserting that they entered the public domain need not prove that the judge read them. The burden passes to the person contesting public availability to show, for example, that the judge did not read them or that justice required continued protection. Evans-Lombe J had therefore placed the burden on the wrong party when deciding whether the exhibited transcripts had become publicly available.

1. Court of Appeal: In [2000] EWCA Civ 148, dismissed the appeal on whether the transcripts were protected by section 82(1) of the Banking Act 1987, but allowed it on the burden and approach governing whether the transcripts had become publicly available under section 82(2).

2. High Court, Chancery Division: Evans-Lombe J declared on 15 December 1999 that the transcripts remained subject to Part V of the Banking Act 1987. He held that the transcripts were protected and that Deloitte & Touche had not proved that those exhibited in the disqualification proceedings had been made available to the public.