Shlaimoun & Anor v Mining Technologies International Inc

Documents obtained under a Bankers Trust/Norwich Pharmacal order may be used in later foreign proceedings where the application was made to investigate a possible wrong and the court was alerted to the likelihood of further litigation. Such use is not abusive merely because the eventual forum is foreign or the claims include both proprietary and related personal relief.

The documents are disclosed for the purposes of Civil Procedure Rules 1998 Part 31, so rule 31.22 applies. The original order carries implied permission under rule 31.22(1)(b) for use within its purpose. The court need not enumerate hypothetical future uses. Orders already complied with will not be set aside. Retrospective permission would, in any event, be available where any breach was inadvertent, permission would have been granted, and no prejudice resulted.

The applicants sought to set aside Bankers Trust/Norwich Pharmacal orders made against NatWest and Barclays after the banks supplied documents concerning a transferred US$2 million. The respondent later commenced proceedings in Ontario against 18 defendants, including the applicants, alleging fraudulent misrepresentation, breach of fiduciary duty, conversion and related claims. The applicants sought injunctions preventing use of the documents in the Ontario proceedings and related proceedings in California.

The central issues were whether obtaining the documents was abusive because foreign proceedings followed, whether their later use breached the collateral undertaking in Civil Procedure Rules 1998 rule 31.22, and whether retrospective permission could be granted.

The application was dismissed. The orders were not set aside and no injunction restraining use of the documents was granted.

1. Orders made against third parties which had been fully complied with, and the proceedings giving rise to them had ended, should not be set aside. The court applied WEA Records Limited v Visions Channel 4 Limited [1983] 1 WLR 721. Any remaining remedy would have to address subsequent use of the documents.
2. The Bankers Trust/Norwich Pharmacal jurisdiction permits a person innocently mixed up in tortious acts to be required to provide information and identify wrongdoers. Its availability was preserved by Civil Procedure Rules 1998 rule 31.18. An application was not abusive merely because later proceedings might be brought abroad, particularly where the applicant did not yet know what claims were viable or where proceedings would be commenced.
3. Following and applying Omar v Omar [1995] 1 WLR 1429, documents obtained under the procedure could be used in foreign proceedings. No artificial distinction arose between tracing or other proprietary claims and intimately related personal claims arising from the same facts.
4. The court distinguished Rio Tinto Zinc Corporation & Others v Westinghouse [1978] AC 547. Its statutory discussion principally concerned evidence for foreign proceedings already under way. It did not prevent use of the stand-alone Bankers Trust/Norwich Pharmacal remedy before foreign proceedings had commenced.
5. Documents supplied by a bank or other third party pursuant to such an order were disclosed documents for the purposes of Civil Procedure Rules 1998 Part 31. Rule 31.22 therefore applied. Where the original application made the possibility of subsequent proceedings clear, the court had implicitly given permission under rule 31.22(1)(b) to use the documents in those proceedings within the purpose of the original order.
6. Retrospective permission was considered only as an alternative and was therefore obiter. Applying the approach discussed in Miller and Another v Scorey and Others [1996] 1 WLR 1123 and accepting the analogy with Brinks Mat Limited v Elcombe [1988] 1 WLR 1350, permission would have been granted because any breach was inadvertent, permission would have been granted if sought, the applicants suffered no relevant prejudice, and prohibiting use would have been disproportionate.

This was a first-instance application following orders made by Deputy Master Bard on 9 February 2011 and Master Kay QC on 4 April 2011. No appeal is stated.