Tchenguiz & Ors v Director of the Serious Fraud Office

Permission for collateral use of documents under CPR Part 31.22 requires the applicant to identify the specific factual propositions sought from the documents and explain their relevance and probative value. The applicant bears the burden of demonstrating cogent reasons for permission. The court must balance those reasons against the strong, though not absolute, public interest in preserving the integrity of criminal investigations and protecting information supplied to prosecuting authorities. The abandonment of a threatened prosecution does not remove that public interest, although it may be relevant to the balance. The exercise must be conducted on the merits of the particular documents and proposed use. Permission may be refused where the documents add little to material already available, their utility is limited, or their selective use risks unfairness.

The claimants sought permission under CPR 31.22(1)(b) to make collateral use in pending Guernsey proceedings of 57 documents disclosed by the Serious Fraud Office in the English proceedings. The proposed use was to support amended grounds of appeal challenging the outcome of a Guernsey trial and alleging that the continuing SFO investigation affected evidence, disclosure and the fairness of the trial.

The documents comprised material supplied to the SFO, correspondence, internal notes of discussions with third parties, and internal assessments of the criminal investigation. The court considered the alleged factual propositions derived from them, their relevance and probative value, the availability of public material, the integrity of the criminal investigation, and the risk of unfairness from selective disclosure.

1. Application refused. The applicant bears the burden under CPR Part 31.22 of demonstrating cogent reasons for collateral use.
2. The court must identify the specific factual propositions said to arise from the documents and their relevance, or potential relevance, to the proposed proceedings. General assertions that the documents are necessary are insufficient.
3. The balancing exercise is fact-specific and must be conducted in respect of the particular documents and proposed use. The result of the earlier application concerning 22 documents did not determine the present application.
4. There is a strong public interest in preserving the integrity of criminal investigations and protecting information given to prosecuting authorities from wider dissemination, as recognised in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177. That interest is not absolute, but must receive proper weight. Abandonment of a threatened prosecution does not destroy it, although it is a relevant factor in the overall balance.
5. The asserted relevance and probative value of the 57 documents did not outweigh that public interest. Much of the proposed factual case could be advanced from public documents and material already available. The documents were, at best, likely to have limited utility. Their selective use also created a risk of unfairness, including to the SFO, particularly because they formed a small selection from approximately 45,000 disclosed documents.
6. The court therefore rejected the application under CPR 31.22 and directed counsel to agree a draft order, with outstanding issues to be dealt with by the court if necessary.

This was a first-instance application. The judgment records that an earlier application concerning 22 documents was determined by the High Court in [2014] EWHC 2597 (Comm) and upheld by the Court of Appeal in [2014] EWCA Civ 1409. Those decisions did not determine the present application, which was assessed on its own merits.