Tchenguiz & Anor v Director of the Serious Fraud Office

Disclosure documents may be used only for the proceedings in which they were disclosed unless an exception under CPR 31.22 applies. Providing disclosed documents to independent counsel specifically to obtain advice about possible criminal offences is collateral use and requires permission.

The applicant bears the burden of showing cogent and persuasive reasons amounting to special circumstances. Relevant considerations include the limited nature of the proposed use, the seriousness of any possible criminality, whether the documents could be obtained elsewhere, the public interest, and the ordinary right to obtain legal advice. Permission may be granted even where the proposed advice concerns possible criminal proceedings involving witnesses in the civil trial.

The claimants sought permission concerning documents disclosed by the Serious Fraud Office in the underlying proceedings. They wished to provide approximately 198 documents to independent counsel for advice on whether Grant Thornton, its personnel, or SFO personnel might have committed criminal offences, and on possible prosecution procedures.

The application raised two questions: whether the proposed use was within the purpose for which the documents had been disclosed under CPR 31.22, and, if not, whether permission should be granted. The court had already indicated that permission was required and would be granted.

1. Permission was required. The proposed disclosure to independent counsel for the specific purpose of obtaining criminal advice could not properly be characterised as use for the proceedings in which the documents had been disclosed. It was collateral use within CPR 31.22.
2. The court accepted that existing solicitors might incidentally advise on possible criminality while reviewing documents for the current proceedings. That did not determine whether a deliberate transfer of documents to specialist external counsel for criminal advice was permitted. The purpose of the proposed use was decisive.
3. The burden lay on the claimants to show cogent and persuasive reasons amounting to special circumstances. The court treated that threshold as important and declined to water it down.
4. Permission was nevertheless justified. The proposed use was limited to obtaining legal advice and did not authorise deployment of the documents in criminal proceedings. Preventing access to legal advice would be a drastic restriction on ordinary rights, and the documents could not have been obtained through third-party disclosure under CPR 31.17.
5. The possible investigation of perjury-type or bribery offences arising in the context of a serious fraud investigation engaged substantial public interest considerations. A civil witness could not be insulated from investigation or prosecution merely by being a witness. If necessary, the trial judge could address privilege against self-incrimination, recognised in the common law and Article 6 ECHR.
6. Any risk of a vexatious private prosecution was sufficiently addressed by the power of a public prosecutor to take over and terminate such a prosecution: R (Gujra) v DPP [2013] 1 AC 484. Permission was granted for the limited proposed course of action.