JSC BTA Bank v Solodchenko & Ors

On an application to use documents disclosed under compulsion for proposed committal proceedings, the court has discretion over who should be joined or notified. There are no hard and fast rules. The court must balance the applicant’s proposed use of the documents against the privacy interests of those who disclosed them, while considering the interests of the person facing committal proceedings. A person against whom the documents are to be used may have a sufficiently direct interest to justify notice, particularly where the documents may belong to that person or the proposed use engages liberty and human rights. A practical course may be to make the order, direct service, and give that person liberty to apply within a specified period.

The claimant sought permission, without notice, to use documents disclosed under compulsion for proposed committal proceedings against Mr Ablyazov in separate Commercial Court proceedings. The original respondents were the parties who had disclosed the documents. The court had previously granted limited permission to issue the committal application and adjourned further consideration on notice.

The issue was whether Mr Ablyazov should be joined or otherwise given notice before the order was made. The claimant argued that he was not a proper respondent and that any objection should be dealt with in the Commercial Court. The court considered the relevance of his possible beneficial ownership of some documents, the proposed committal proceedings, and the practical advantages of dealing with the issue there.

1. Order and procedural protection. The court made the order sought, which was not opposed by the named respondents. It directed service of the application, supporting papers and hearing transcripts on Mr Ablyazov, and gave him liberty to apply within 14 days to contend that the order should not have been granted or that the issue should instead be determined in the Commercial Court.
2. Joinder and notice. The basic issue ordinarily lies between the parties who disclosed the documents and the claimant. It concerns the proposed use of the documents and the privacy interests of those who disclosed them. The person against whom committal proceedings are proposed is not necessarily a necessary respondent. However, the court has a discretion as to who should be joined or notified. There are no hard and fast rules; the interests of justice and fairness must be followed in each case.
3. Mr Ablyazov might have a closer and more direct interest if some documents belonged to him. Independently, his obvious interest as the person against whom the documents were to be used was relevant. The proposed use for committal required particular care because it engaged liberty and human rights and was to be treated as criminal for the purposes of the European Convention on Human Rights.
4. The court accepted that the Commercial Court was better placed to address related issues, given its familiarity with the allegations and evidence and the possibility that restricted material would otherwise need to be considered. The combination of service and liberty to apply provided proper and adequate protection for Mr Ablyazov’s interests.