Tchenguiz & Ors v The Serious Fraud Office

An application under CPR r.31.22(1)(b) requires the court to balance the interests of the party seeking collateral use of disclosed documents against the interests protected by the confidentiality restriction.

The applicant must show cogent and persuasive reasons amounting to special circumstances. Relevant considerations include the likely probative value of the documents, the interests of justice, potential unfairness, and any wider public interest in preserving confidentiality. Information generated through mutual legal assistance in criminal investigations attracts particularly weighty protection because collateral use may undermine international co-operation. The court must exercise its own discretion and should not leave the decision to the court in the proposed satellite proceedings.

The claimants sought permission to use 22 documents disclosed by the Serious Fraud Office for three purposes: advice concerning possible criminal offences, advice and representation in Guernsey, and deployment as fresh evidence in related Guernsey proceedings.

The documents arose from Guernsey’s response to a mutual legal assistance request made under sections 7 and 9 of the Crime (International Co-operation) Act 2003. The Guernsey Procureur intervened and argued that section 9 created an absolute bar. The court assumed, without deciding, that the documents were not evidence within section 9. The central issue was whether permission for collateral use in the Guernsey appeal should nevertheless be granted under CPR r.31.22(1)(b).

1. Permission granted in part. Permission was granted to provide the documents to Guernsey lawyers for legal consideration and to criminal counsel. Permission to deploy the documents as evidence in the Guernsey proceedings was refused.
2. Under CPR r.31.22(1)(b), the court must conduct a balancing exercise between the interests of the party seeking collateral use and the interests protected by the disclosure restriction. The applicant must establish cogent and persuasive reasons amounting to special circumstances.
3. The likely contribution of the documents to justice in the second proceedings is relevant. Documents that are crucial or decisive may provide a stronger case for release, but that factor is not necessarily determinative. Here, the available evidence suggested only that the documents might have filled an evidential gap or led to a different conclusion.
4. The court gave substantial weight to the fact that the documents concerned the SFO’s criminal investigation and its interaction with Guernsey authorities pursuant to a mutual legal assistance request. Even if section 9 of the Crime (International Co-operation) Act 2003 did not apply, the public interest in protecting the confidentiality and effectiveness of mutual legal assistance strongly militated against collateral use.
5. Potential unfairness to parties in the Guernsey proceedings was also relevant because the documents had been selected from the SFO’s disclosure without equivalent access or oversight by the Guernsey court. The possibility of redaction or a narrower application did not justify granting the application in its broad form.
6. The court rejected the submission that the application was premature and held that it was for this court to exercise its own discretion. It was not appropriate simply to release the documents so that the Guernsey Court of Appeal could decide whether and how they should be used.

The application for permission to deploy the documents in the Guernsey proceedings was dismissed.