Metropolitan Housing Trust Ltd v Tominey

The court may release or modify an undertaking restricting the use of documents obtained under compulsion where there are special circumstances, the release will not cause injustice, and the decision is assessed on the particular facts. The principle is not confined to obligations arising under foreign law. It may apply where a regulated organisation must provide full, frank, timely and relevant information to its regulator. Permission may also be given to disclose material to the police where the material is not protected by privilege against self-incrimination and its use would not be oppressive, unfair or otherwise inappropriate.

The claimant, a publicly funded housing association, alleged that a former employee and others had received bribes connected with the placement of contracts. Following disclosure orders and freezing orders, the claimant sought permission to use information obtained under compulsion for purposes beyond the proceedings.

It wished to report the alleged wrongdoing to the police and to provide information to the Homes and Communities Agency under the regulatory framework for social housing. The central issue was whether the claimant should be released from the relevant undertaking so that it could disclose the material to the regulator and the police.

1. Application granted. The claimant was permitted to disclose the material obtained under the earlier orders to the Homes and Communities Agency and the police, subject to the order being drawn up with reference to the undertaking.
2. The governing approach was that stated in Bank of Crete v Koskotas [1992] 1 W.L.R. 919: release or modification of an implied undertaking requires special circumstances, must not occasion injustice to the person giving discovery, and each case turns on its individual facts. The approach was not limited to obligations imposed by a foreign legal system.
3. The claimant had legitimate regulatory obligations. The regulatory framework required registered providers to be open and transparent and to provide timely and relevant information about significant events and fraudulent activity. The regulator’s interest extended beyond quantifying losses to the quality of governance and the protection of public funds. Full information could therefore be relevant in assessing loss, recoverability and governance.
4. The court should not inhibit the claimant from giving full and frank information to its regulator. It was appropriate to leave the claimant to judge what information needed to be disclosed for the regulator to perform its functions.
5. As to disclosure to the police, information obtained from banks was not a statement made by a defendant in compliance with an order and was not protected by privilege against self-incrimination. Information obtained directly from defendants was subject to the protections identified under s.13 of the Fraud Act 2006. In the circumstances, permitting disclosure would not be oppressive, unfair or otherwise inappropriate.
6. Costs were awarded to the claimant against the first, fifth and tenth defendants in any event. Costs relating to the fourth, eighth and ninth defendants were reserved until the determination of their substantive application.