Serious Organised Crime Agency v Namli & Anor

Standard disclosure under rule 31.6(b)(ii) of the Civil Procedure Rules 1998 includes documents which adversely affect another party’s case, even in two-party proceedings and although the disclosing party does not intend to rely on them.

The court may nevertheless limit an existing order for standard disclosure under rules 31.5(2) and 3.1(7). The circumstances required depend on the nature of the order. Final substantive and consent orders demand stronger grounds than interlocutory case-management orders which resolved no controversy.

Where documents solely damage an opponent’s case, are not to be relied upon, and their non-disclosure causes no unfairness, the court may limit disclosure under rule 31.5. A public-interest application under rule 31.19 is not invariably required. It ordinarily is required where withheld material materially damages the public authority’s own case or assists another party.

The Serious Organised Crime Agency sought a recovery order under sections 243 and 266 of the Proceeds of Crime Act 2002 concerning money held by Topinvest Holdings International Ltd. Following an order for standard disclosure, the Agency identified confidential intelligence material which it said was relevant only because it adversely affected the defendants’ case and on which it did not intend to rely.

Openshaw J, in [2011] EWHC 1829 (QB), varied the disclosure order under rules 31.5 and 3.1(7) of the Civil Procedure Rules 1998. The defendants appealed. The principal issues were the scope of rule 31.6(b)(ii), the power to limit an existing disclosure order, and whether the Agency had to proceed instead by a public-interest application under rule 31.19.

1. Appeal dismissed unanimously. Rule 31.6(b)(ii) is unqualified. Standard disclosure includes documents which adversely affect another party’s case, even in two-party proceedings and although the disclosing party does not propose to rely on them. Reading into the rule a limitation concerning another party’s case against a third party would add words which are absent. The power to limit disclosure under rule 31.5 makes a strained purposive construction unnecessary (paras 18–19).
2. Rule 31.21 prevents a party, without permission, from relying on a document which it failed duly to disclose. Disclosure for the first time at trial would not satisfy the rule (para 20).
3. The power under rule 31.5(2) is not confined to the occasion on which standard disclosure is first ordered. Its exercise after an earlier order is analogous to varying that order under rule 3.1(7). Whether variation is justified is a discretionary question (paras 21–24).
4. Authorities concerning rule 3.1(7) must not be treated as statutes. The applicable threshold depends on the character and terms of the order and the circumstances in which it was made. Final substantive orders, consent orders and interlocutory case-management orders occupy different points on a spectrum. An application to vary an order determining a controversy normally requires at least a change in the circumstances assumed or found by the court (paras 25–30).
5. The original disclosure direction was an interlocutory case-management order which resolved no dispute and expressly permitted restoration. The confidential-material problem emerged only during the disclosure exercise. The judge therefore had power to reconsider and limit the order (para 31).
6. A party’s assessment of a document’s relevance is ordinarily determinative unless evidence demonstrates that it is wrong or unreliable. A document which may merely lead to a train of inquiry is outside standard disclosure. Withholding documents which solely damage the opponent’s case and will not be relied upon does not impair trial fairness (paras 33–37).
7. Rule 31.5 is not limited by rule 31.19. Where the documents solely harmed the defendants’ case, a rule 31.19 application would advance no legitimate interest and impose disproportionate expense and demands on court resources. The judge could therefore limit disclosure under rule 31.5 (paras 38–43).
8. Applications under rule 31.19 remain constitutionally important. That procedure should be required where a public authority seeks to withhold material which materially damages its own case or is materially adverse to one defendant’s case against another (para 43).

• Court of Appeal (Civil Division): The defendants’ appeal was dismissed unanimously. The High Court’s variation of the disclosure order was upheld: [2011] EWCA Civ 1411.
• High Court, Queen’s Bench Division: Openshaw J varied the earlier case-management order so as to exclude documents relevant only because they adversely affected the defendants’ case: [2011] EWHC 1829 (QB).
• Master: Master Leslie initially ordered the parties to give standard disclosure. The order expressly permitted the parties to restore the application.