Rio Tinto Plc v Vale S.A. & Ors

In an application for assistance in obtaining evidence for foreign proceedings, the English court must give effect to a foreign request only so far as proper, practicable and permissible under English law. Confidentiality is not automatically decisive. The court must balance the public interest in preserving confidentiality against the public interest in assisting the foreign court and securing a fair trial.

Where disclosure would seriously threaten confidential sources, the court should ask whether the information is necessary or of central importance to the foreign proceedings. If the objective can fairly be achieved through anonymised descriptions and redaction, disclosure of identities should be refused as disproportionate.

Vale obtained orders under CPR Part 34 following a Letter of Request from the United States District Court for the Southern District of New York. The orders required three corporate investigation firms to produce documents and provide witness evidence concerning reports prepared for Rio Tinto.

The underlying United States proceedings concerned alleged corruption and conspiracy relating to iron ore concessions in Guinea. Vale relied on the requested material in relation to limitation, equitable tolling, due diligence and the merits of the conspiracy claim.

The respondents accepted disclosure of relevant documents and information in principle, but applied to vary the orders so that confidential sources would not be identified. The central issue was whether the identities of those sources should be disclosed, or whether anonymised and redacted evidence would adequately assist the foreign court.

1. Application allowed in part. The orders made under CPR Part 34 were varied so that the respondents were not required to reveal information identifying confidential sources. Documents could be redacted to remove identifying references, and relevant witnesses could refuse to identify sources or provide information leading to their identification.
2. Under the Evidence (Proceedings in Other Jurisdictions) Act 1975, the court generally gives effect to a foreign request so far as proper, practicable and permissible under English law. It must not permit the request to become pre-trial discovery under United States procedure. Documents must be particular documents specified in the order. An overbroad request may be edited using the blue-pencil approach, but the court cannot substitute a different request.
3. Confidentiality requires a balancing exercise. The court must assess the strength and value of the interest in confidentiality, the harm caused by disclosure, whether the fair disposal of the foreign proceedings can be achieved without disclosure, and whether protective measures are sufficient. Confidentiality alone will rarely determine the application, but serious risks to informants carry substantial weight.
4. The identities of the sources were, at most, marginally relevant. The underlying information could assist arguments about Rio Tinto’s knowledge, red flags, due diligence and equitable tolling, but identifying the sources would not materially advance those issues. The foreign court could fairly determine the proceedings without that information, and the Protective Order did not justify disclosure where disclosure was unnecessary in principle.
5. Livingstone and ARC were directed to attribute information to anonymised sources and provide descriptions sufficient to permit a fair assessment of reliability. The ruling did not extend to Livingstone’s Associates who were not themselves sources, because equivalent risks had not been established. Examination of BTG’s witness was confined to searches and the alleged destruction of documents.

Not stated in the judgment. The decision was a first-instance determination of applications to vary orders made under CPR Part 34.