Property Alliance Group Ltd v The Royal Bank of Scotland Plc

Orders for disclosure and inspection are governed by the law of the forum. The possibility that compliance may expose a party to prosecution under foreign law is no defence to the order, although it is a relevant discretionary consideration. Confidentiality alone does not justify withholding inspection. The court may defer inspection and restrict reference to the document in open court while preserving the ability to review that restriction as the case develops.

The claimant sought inspection of Attachment C to a deferred prosecution agreement between the defendant and the US Department of Justice. The attachment identified benchmark rates under investigation and was potentially relevant to claims concerning LIBOR-related misrepresentations and implied terms.

The defendant argued that disclosure could breach confidentiality obligations and a US sealing order, exposing it to criminal contempt proceedings. The court had to decide whether to require inspection and what restrictions should govern use of the document in the English proceedings.

1. Inspection ordered. RBS was ordered to provide inspection of Attachment C, with the order taking effect four weeks after 11 February 2015.
2. The governing principles were those stated in Health Secretary v Servier Laboratories [2013] EWCA 1234 (Civ). Disclosure and inspection orders are procedural matters governed by the lex fori. Foreign-law exposure does not provide a defence, but the court may take the risk of prosecution into account. The same approach was recognised in Morris v Banque Arab et Internationale d’Investissement [2000] C.P. Rep. 65.
3. Confidentiality was not by itself a sufficient reason to withhold inspection, consistently with Science Research Council v Nassé [1980] AC 1028. The court found the risk of criminal contempt low and considered the opinion that production of RBS’s own copy would not breach the US sealing order more persuasive.
4. The order included safeguards under CPR r31.22 and a further restriction preventing either party from referring to Attachment C in open court without prior permission.
5. The restriction regulated the case-management stage and did not make the document public. The position could be reviewed nearer trial, when the balance might favour publicity more strongly.