Tchenguiz v Director of the Serious Fraud Office & Anor

Permission for collateral use of disclosed documents under Civil Procedure Rules 1998, r 31.22(1)(b), requires special circumstances amounting to a cogent reason. The court must weigh the public interest in the just resolution of civil litigation against the confidentiality underpinning disclosure and criminal investigations.

Documents recording liaison between a prosecuting authority and a foreign authority concerning a criminal investigation attract a strong public interest in confidentiality. That interest remains material even where the absolute restriction in section 9(2) of the Crime (International Co-operation) Act 2003 is assumed not to apply. An appellate court will not disturb the discretionary balance unless the judge erred in law or failed properly to take account of the competing interests.

Following civil proceedings between Robert Tchenguiz and the Serious Fraud Office, the Serious Fraud Office disclosed 22 documents recording its liaison with the Guernsey authorities during an investigation into suspected fraud. Tchenguiz sought permission to give the documents, unredacted, to the trustee of a family trust for use in an appeal in related Guernsey litigation.

Eder J granted permission for two limited purposes but refused permission for use in the Guernsey proceedings: Tchenguiz v Serious Fraud Office [2014] EWHC 2597 (Comm). The Serious Fraud Office and HM Procureur for Guernsey opposed the proposed unredacted use.

The appeal concerned whether the judge had applied the correct approach under CPR r 31.22 and properly balanced the utility of the documents in the Guernsey proceedings against the public interest in preserving the confidentiality of international criminal-investigation liaison.

1. Appeal dismissed. The judge correctly identified and balanced the relevant public interests when refusing permission under CPR r 31.22(1)(b) for unredacted use of the 22 documents in the Guernsey proceedings.

2. The collateral-purpose rule is supported by long-established policy. A party seeking release from it must show special circumstances amounting to a cogent reason. The exercise is fact-sensitive. It requires a balance between the interests of justice in the other civil proceedings and the interests protected by the rule.

3. Section 9(2) of the Crime (International Co-operation) Act 2003 imposes an absolute restriction on collateral use of evidence obtained under section 7 without the overseas authority's consent. The court did not decide whether the 22 documents were such evidence and assumed that they were not. Even on that assumption, the documents arose from confidential liaison between the Serious Fraud Office and a foreign authority concerning a criminal investigation. There was a strong public interest in maintaining the confidence necessary for international co-operation.

4. The documents had only limited utility in the Guernsey appeal. The proposed arguments could substantially be advanced from material already available, including the letter of request and the Serious Fraud Office's pleaded explanation. The documents principally went to witness credit and did not materially affect the legal conclusion reached in the Guernsey proceedings.

5. The judge had not imposed a requirement that the documents be crucial or decisive. Nor was there a workable middle course between the appellant's request for full unredacted use and the respondents' proposed redactions. The judge was also entitled to give limited weight to the procedural unfairness that would arise because other parties to the Guernsey action had not had the same access to the disclosed material.

6. It remained for the English court to decide permission under CPR r 31.22. Any application in Guernsey to adduce further evidence, and whether it should be heard privately, was for the Guernsey Court of Appeal.

• Court of Appeal (Civil Division): Dismissed the appeal and upheld the refusal of permission for unredacted collateral use of the 22 documents.

• High Court, Commercial Court: Eder J granted permission for limited purposes but refused permission to use the documents in the Guernsey action: Tchenguiz v Serious Fraud Office [2014] EWHC 2597 (Comm).

• Divisional Court: In the earlier judicial review proceedings, quashed search warrants relating to Robert Tchenguiz and R20, declared the resulting searches and seizures unlawful, and transferred the remaining claims to the ordinary list of the Queen's Bench Division.