Tchenguiz & Ors v Director of the Serious Fraud Office

Permission to review documents disclosed in one set of proceedings for the limited purpose of obtaining legal advice and deciding whether to make a further permission application may be granted under CPR r.31.22. The court must respect the strong public interest in preserving the confidentiality of disclosed material, especially material obtained during a criminal investigation. The applicant must ordinarily show cogent and persuasive reasons amounting to special circumstances. A preparatory review does not itself amount to deployment of documents in foreign proceedings. The existence of the statutory procedure for obtaining evidence abroad is highly relevant, but does not automatically bar the court’s discretion under CPR r.31.22. Permission may be conditional on confidentiality protections and arrangements for the disclosing party’s reasonable future costs.

The claimants were involved in proceedings against the Serious Fraud Office, which had disclosed approximately 45,000 documents obtained or created during a criminal investigation. The first claimant sought permission under CPR r.31.22 to instruct a separate legal review team to identify documents potentially relevant to a pending appeal in Guernsey.

The proposed team would initially review documents only to advise whether a focused application for permission to use particular documents in the Guernsey proceedings should be made. The SFO opposed the application, relying on confidentiality, possible unfairness to other Guernsey litigants, the statutory evidence-gathering procedure, and the practical burden of future applications. The central issue was whether permission should be granted for this preparatory review.

1. Permission granted in principle. The proposed course was limited to preliminary steps enabling the claimant to obtain legal advice and, if appropriate, make a further application under CPR r.31.22. It did not at that stage involve using any document in the Guernsey proceedings.
2. The court accepted that the prohibition on collateral use protects important private and public interests. Discovery is a serious invasion of confidentiality, and the public interest in confidentiality is particularly strong where documents arise from criminal investigations. The applicant nevertheless had to show cogent and persuasive reasons amounting to special circumstances.
3. Preventing the claimant from obtaining advice necessary to decide whether to make an application in the present proceedings would deny him the opportunity to pursue that application. That constituted a cogent and persuasive reason and a special circumstance. The court expressed no view on the prospects of any later application to use documents in Guernsey.
4. The Evidence (Proceedings in Other Jurisdictions) Act 1975 and the related Convention procedure were potentially highly relevant. They did not, however, create an absolute bar to the exercise of the discretion under CPR r.31.22. The need for a focused foreign request could itself depend on the proposed preparatory review.
5. Concerns about unfairness to other Guernsey parties and the burden of consulting third parties were premature at this stage. Such matters might justify refusing a later document-specific application. They did not justify refusing the limited review, for which third-party consultation was not presently required.
6. Permission was subject to suitable confidentiality agreements and protection of the SFO’s reasonable future costs. The court indicated that those costs should in principle be borne by the claimant, and reserved the final form of order and any unresolved costs issue.