Rawlinson & Hunter Trustees SA (Trustee of the Tchenguiz Discretionary Trust) v Serious Fraud Office

Permission for collateral use of disclosed documents under CPR 31.22(1)(b) requires the applicant to show special circumstances constituting a cogent reason. The court must balance the interests in the just resolution of litigation against the strong public interest in protecting criminal investigations and those who assist them. The likely utility of the documents and the risk of unfairness are relevant. For documents referred to in public proceedings, CPR 31.22(2) requires very good reasons to displace open justice and restore protection. Similar considerations apply to collateral use of witness statements containing information derived from disclosure documents.

The main civil proceedings had settled. The claimant sought permission to use disclosed documents, extracts from witness statements, third-party documents and reports in an imminent Guernsey appeal concerning separate proceedings. The applications engaged CPR 31.22 and, for the witness statements, CPR 32.12.

The claimant also sought a declaration that some documents had entered the public domain because they had been read or referred to at public interlocutory hearings. The defendant sought an order under CPR 31.22(2) restoring protection. The central issues were whether the threshold for collateral use was met and whether very good reasons justified restricting documents that had been referred to publicly.

1. Collateral use under CPR 31.22(1)(b). The burden lay firmly on the applicant to establish special circumstances constituting a cogent reason for permission. The court had to conduct a fact-sensitive balancing exercise. Relevant considerations included the public interest in the just resolution of civil litigation, the integrity of criminal investigations, protection of informants, the documents’ likely utility in the target proceedings, consent or objection by affected persons, and potential unfairness.
2. The 78/15 documents and extracts from the SFO witness statements concerned the criminal investigation, substantially repeated earlier unsuccessful applications, had at best limited utility, risked unfairness, and lacked the necessary cogent justification. Permission was refused. The same conclusion applied to the GT meeting notes, which were confidential records of the investigation and information supplied to the SFO, notwithstanding that GT rather than the SFO created them.
3. The GT reports stood differently because they were produced for the liquidators, not the SFO, and the liquidators were parties to the Guernsey proceedings. Nevertheless, their late proposed use, the earlier refusal of disclosure, their very limited utility, and the absence of a sufficient cogent reason led to refusal. The liquidators’ abuse-of-process application was rejected because a consent order had expressly permitted the claimant to make collateral-use applications in its trustee capacity.
4. Public-domain application. CPR 31.22(1)(a) could apply to interlocutory hearings and did not require oral reference if the court had read or considered the document. However, CPR 31.22(2) permitted protection to be restored. The party seeking restriction had to show very good reasons, having regard to open justice, transparency, the role and centrality of the document, confidentiality, third-party chilling effects and the circumstances of the reference.
5. The 26 documents had been referred to only marginally in interlocutory proceedings, concerned the SFO investigation, had limited utility in the Guernsey proceedings, and had not been widely disclosed. Very good reasons therefore existed to prohibit collateral use. The claimant’s applications under CPR 31.22(1) and CPR 32.12 were refused, and the SFO’s application under CPR 31.22(2) was granted.