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

Financial Services and Markets Act 2000, section 348, regulates confidential information rather than documents as such. A secondary recipient does not obtain information from the regulator merely because the information is recorded in a document supplied by the regulator, where the recipient already knew it independently. Knowledge acquired by an employee in the course and for the purpose of employment is ordinarily attributable to the company. Documents containing both protected and known information should generally be redacted and inspected where proportionate. Inspection by parties to litigation is not publication under section 391(1), although use in open court may require protective measures.

Real Estate Opportunities Limited applied under CPR 31.19(5) for inspection of documents withheld by Aberdeen and UBS under CPR 31.19(3). The documents principally comprised transcripts and other material supplied by the Financial Services Authority and, for Aberdeen, the Jersey Financial Services Commission during investigations into the split-capital investment company market.

The defendants accepted relevance but relied on section 348 of the Financial Services and Markets Act 2000, together with disproportionate redaction under CPR 31.12. The central issue was whether section 348 prohibited inspection of transcripts recording information already known to the defendants, including information supplied to the regulator by their employees. A further issue concerned warning notices under section 391(1).

1. The application was granted. Aberdeen and UBS were ordered to permit inspection, subject to redaction of information protected by section 348, with prior notice to the individual interviewees.

2. Section 348 applies to information, not documents as such. Its prohibition concerns confidential information obtained directly or indirectly from the FSA. Information already independently known to a secondary recipient is not obtained from the FSA merely because it appears in a transcript or other document supplied by the FSA. This includes a person's own interview transcript and transcripts of interviews with present or former employees.

3. The ordinary rules of attribution apply to a corporate recipient. Knowledge acquired by an employee in the course and for the purpose of employment is ordinarily attributable to the employer. Knowledge acquired in performing an investment trust directorship is generally attributable to the trust, whereas knowledge acquired in performing the employer's contractual fund-management functions is attributable to the employer.

4. Information put by the FSA to an interviewee, and information known to an employee but not attributable to the employer, remains protected and must be redacted. Under CPR 31.12, the likely value of the material outweighed the burden and risks of redaction.

5. The defendants' solicitors could inspect the transcripts to advise on redaction. Possible misleading effects or trial difficulties were matters for the trial judge. Inspection by parties pursuant to court rules is not publication within section 391(1), although use in open court may require reporting restrictions or a private hearing.