Faisaltex Ltd & Ors v Lancashire Constabulary & Anor

Interim relief should not ordinarily be used to supervise or manage an ongoing criminal investigation. The court should intervene only where intervention is necessary and proportionate to protect a legal right. Relevance of seized material is ordinarily provisional during an investigation and may involve a broader assessment than relevance at trial. A court should not transfer investigators’ statutory decision-making responsibility to independent counsel where the statutory framework assigns that responsibility to investigators. Where excessive seizure is ultimately established, damages may provide an adequate remedy. Applications seeking to extend a review protocol or impose a court-ordered timetable were therefore refused.

The claimants sought declarations, delivery up and damages concerning alleged excessive seizures made during the execution of search warrants. A protocol already protected material potentially subject to legal professional privilege. The claimants sought to extend it so that independent counsel would also identify material allegedly irrelevant to the defendants’ criminal investigations, and sought more time to comply with the protocol.

The Divisional Court had upheld the legality of issuing the warrants but left questions concerning their execution to private law proceedings. An earlier injunction application in the present proceedings had been refused. The central issues were whether the High Court should restrain the defendants’ examination or retention of potentially irrelevant material and whether it should impose the requested extension of time.

1. Applications refused. The requested order was not genuine case management. It sought judicial supervision of ongoing criminal investigations, which went beyond the legitimate function of the private law proceedings.
2. The relevance of material could not finally be determined at this stage. Relevance during an investigation was likely to be assessed by a broader and different test from relevance at a later criminal trial, when the issues and possible defences had been defined. Any assessment before that stage would necessarily be provisional.
3. The statutory framework required investigators to pursue all reasonable lines of enquiry, retain material that might become disclosable, and make the relevant judgments. The CPIA Code of Practice defined relevance by reference to how material appeared to an investigator, the officer in charge, or the disclosure officer. Requiring independent counsel to decide relevance would undermine that framework and could impede the investigation.
4. Applying the principles governing interlocutory injunctions, there was no triable issue requiring protection by injunctive relief on relevance. In any event, the balance of convenience favoured allowing the defendants to inspect the seized material in discharge of their statutory duties. The public interest in thorough, effective and expeditious investigation outweighed the claimants’ private interest.
5. Damages would not be an inadequate remedy if seizure beyond the authority of the warrants were ultimately established. The existing protocol and the statutory Crown Court mechanism provided sufficient protection for the claimants’ rights.
6. The request for an extension of time was also refused. The established procedure of correspondence and agreement between the parties was preferable to a court-imposed arbitrary deadline, particularly because further delay would correspondingly delay the defendants’ statutory duties.

Not an appeal. The judgment records earlier proceedings concerning the search warrants and an earlier injunction application in the same litigation.