Joint Stock Company "Aeroflot- Russian Airlines" & Anor v Berezovskaya & Anor

Confidential information may be used in substantive proceedings where it is necessary for their fair disposal and no adequate alternative exists. The court may impose proportionate restrictions to preserve third-party confidentiality, prevent collateral misuse and ensure compliance with the Civil Procedure Rules 1998, provided that the restrictions do not impair natural justice. A party cannot ordinarily be denied access to evidence relied upon at a substantive hearing, even where its lawyers have access to it. Restrictions may instead limit disclosure within the party organisation, require undertakings and regulate copying and subsequent use.

The application arose in proceedings concerning the administration of the estate of Boris Berezovsky. Ms Berezovskaya wished to rely on confidential information concerning a settlement between the estate and the AP Family when addressing the estate’s solvency. The AP Family opposed disclosure to Aeroflot and Samara, while accepting disclosure to their lawyers under an earlier order.

The central issues were whether the information was necessary for the fair disposal of the substantive applications, whether it could be considered while withheld from the parties themselves, and whether the court could impose a restricted disclosure regime.

1. Application of the necessity test. The court applied the approach in Science Research Council v Nasse [1980] AC 1028. It asked whether disclosure was necessary for fair disposal, whether the information could be supplied by another means, whether restrictions were available, and whether they should be imposed. The AP Confidential Information was likely to be highly material, and its availability was necessary because the settlement payments might determine the solvency issue.
2. No closed substantive hearing of this kind. In light of Al Rawi v Security Service [2012] 1 AC 531 and McKillen v Misland (Cyprus) Investments Ltd [2012] EWHC 1158 (Ch), the court could not rely on the confidential information at the substantive hearing while withholding it from Aeroflot, even though Aeroflot’s lawyers could see it. If such a power existed, the case lacked the exceptional features required for its exercise.
3. Power to impose restrictions. The court distinguished the denial of access considered in Al Rawi from restrictions which preserve confidentiality or prevent abuse without conflicting with natural justice. Following Church of Scientology v DHSS [1979] 1 WLR 723, the court had inherent power to restrict inspection and dissemination where there was a real risk of collateral misuse. That power could operate at a substantive hearing, subject to the requirements of natural justice.
4. The court therefore permitted reliance on the confidential information, but restricted disclosure to named persons reasonably needed to instruct Aeroflot and Samara, required single hard copies which could not be copied or electronically converted, and required written undertakings concerning confidentiality and use. The parties were given permission to apply concerning the conduct of the substantive hearing, privacy, and return or destruction of the information.
5. The court deferred the question whether the substantive hearing should be wholly or partly private until the hearing itself, when the information to be used would be known. The same restrictions were imposed on Samara, whose case for unrestricted disclosure was no stronger.