Milsom & Ors v Ablyazov

The privilege against self-incrimination does not generally prevent receivers from using information to pursue proper investigations with third parties where safeguards exist and the enquiries are not themselves part of committal proceedings. It does not extend to pre-existing documents having an existence independent of the compelled response. Disclosure by receivers to solicitors acting for a party pursuing committal proceedings may also be permitted, provided the information is used for the receivership and cannot be deployed as evidence in the committal proceedings without the permission of the court. The privilege is not absolute. Its application depends on the nature and degree of compulsion, the safeguards available, and the use made of the material.

The receivers appointed over Mukhtar Ablyazov’s assets sought answers to requests for information concerning property within the receivership. Mr Ablyazov did not object to providing the information but sought restrictions on its use because the Bank had commenced committal proceedings alleging breaches of worldwide freezing orders.

The proposed restrictions concerned follow-up enquiries to third parties, the use of pre-existing documents, and disclosure to the Bank’s solicitors. The Bank and its solicitors undertook that information derived solely from the receivers’ enquiries would not be deployed as evidence in the committal proceedings without permission from the court hearing those proceedings. The central issue was the extent to which the privilege against self-incrimination and Article 6 of the ECHR required additional restrictions.

1. Third-party enquiries. The receivers were permitted to use information supplied by Mr Ablyazov to frame and pursue consequential enquiries with third parties. Such enquiries served the proper purposes of the receivership, were not part of the committal proceedings, and in the circumstances did not infringe the privilege against self-incrimination. The receivers were not permitted simply to hand over Mr Ablyazov’s answers to those third parties.
2. Pre-existing documents. The privilege did not extend to documents which existed independently of, and before, the receivers’ requests. The court relied on the distinction recognised in Saunders v United Kingdom, the English authorities including C plc v P and R v S, and the corresponding approach in Commission v STL Carbon. No restriction was imposed on the receivers’ use of such documents.
3. Disclosure to the Bank’s solicitors. The restriction in paragraph 27 of the Receivership Order did not itself provide adequate protection because the Bank conducted the committal proceedings through its legal advisers. Nevertheless, the undertaking that information derived solely from the receivers would not be used as evidence without permission provided substantial protection.
4. The privilege under Article 6(2) is not absolute. Its application required consideration of the nature and degree of compulsion, the safeguards in place, and the use to which the material was put. The receivers, as officers of the court, were directed to consider carefully whether disclosure to the Bank’s solicitors was expedient for the receivership and whether disclosure of each part of the information was justified, particularly where enquiries overlapped with the committal application.
5. Subject to that direction and the undertaking, no further restriction was imposed on disclosure to the Bank’s solicitors.

First-instance decision. The judgment refers to earlier decisions concerning the receivership and freezing orders, but those decisions formed part of the same litigation and were not decisions under appeal in this application.