Rawlinson and Hunter Trustees SA v Tchenguiz & Ors

Civil Procedure Rules 1998, r 31.22(2) gives the court a broad power to restrict or prohibit the use of disclosed documents. The applicant need not establish that the documents have been read to or by the court, or referred to at a public hearing. The power may be exercised prospectively, including by requiring advance notice of proposed collateral use, even where no specific use is presently intended and the documents’ status under the public-hearing exception remains uncertain. The court should consider proportionality, the overriding objective and the public interest in preventing collateral use. A limited notice requirement may be appropriate where it avoids disproportionate investigation and costs.

The substantive proceedings had settled. The Serious Fraud Office applied under Civil Procedure Rules 1998, r 31.22(2), for an order restricting or prohibiting collateral use of documents disclosed in the proceedings by the claimants in 2013 Folios 1450 and 1451.

Earlier interlocutory proceedings had resulted in 26 documents losing the protection in r 31.22(1), followed by an order re-attaching that protection: [2015] EWHC 266 (Comm). The SFO identified approximately 550 further documents which might have been read to or by the court or referred to at a public hearing, but had not undertaken a document-by-document analysis. The central issues were whether the proposed order was within r 31.22(2), whether it impermissibly reversed the burden of proof, and whether a notice requirement was proportionate.

1. Application granted. The court made the requested order, subject to a proviso protecting the claimants’ confidentiality interests, and gave the parties liberty to apply.
2. Civil Procedure Rules 1998, r 31.22(2), is expressed in wide terms. The only precondition to an order restricting or prohibiting use is that the document has been disclosed. The applicant need not show that the document has been read to or by the court, or referred to at a public hearing. The reference to those events in r 31.22(2) confirms that the power remains available even where the exception in r 31.22(1)(a) has been engaged.
3. The order did not reverse the burden applicable to a future application under r 31.22(2). The exception in r 31.22(1)(a) operates automatically. If the claimants wished to rely on it, they would themselves need to identify the documents falling within it. The notice requirement therefore gave the SFO limited additional protection without transferring the substantive burden of a future application.
4. The circumstances justified a prospective notice requirement. The material included documents relating substantially to a criminal investigation, engaging a strong public interest against collateral use. Requiring the SFO immediately to analyse approximately 550 documents could incur substantial and potentially unnecessary costs. A 14-day notice requirement was a modest and proportionate means of allowing the SFO to make a specific application under r 31.22(2) if collateral use was proposed.
5. Because the nature of any future use and the documents involved remained uncertain, the order should include a temporary confidentiality proviso. Any dispute could be resolved by agreement or, if necessary, by the court, with unreasonable conduct potentially carrying costs consequences.

The substantive proceedings were settled in July 2014. The judgment records an earlier interlocutory decision concerning the public-domain applications, reported at [2015] EWHC 266 (Comm), in respect of which the RT claimants had applied for permission to appeal. The present judgment determined the SFO’s further application under Civil Procedure Rules 1998, r 31.22(2), at first instance.