Rawlinson & Hunter Trustees SA v The Director of the Serious Fraud Office & Ors

Permission to use disclosed material for a collateral purpose under the Civil Procedure Rules 1998, r 31.22, requires special circumstances amounting to a cogent reason. The court must balance the competing interests, including the public interest in resolving civil litigation and preserving the integrity and confidentiality of criminal investigations. That protection extends beyond witness-related material. Relevance and utility, potential unfairness to a non-party discloser, and any prior foreign disclosure decision may also be considered. An appellate court should not substitute its own evaluation for that of the first-instance judge. Permission was refused for most orders but granted in relation to an order requiring advance notice before using documents referred to in open court.

This was a renewed oral application by Rawlinson & Hunter Trustees SA for permission to appeal orders made by Eder J in the Commercial Court on 10 February and 1 April 2015.

The first orders refused permission under the Civil Procedure Rules 1998, rr 31.22(1)(b) and 32.12(2)(b), to use documents and witness-statement extracts disclosed in English proceedings for proceedings in Guernsey. They also restricted use of documents referred to in open court under r 31.22(2). The later order required 14 clear days’ notice before using approximately 550 documents or information derived from them. The central issues were whether the refusals disclosed an arguable error and whether the notice order should be subject to an appeal.

1. The court, in the judgment of David Richards LJ, with Lloyd Jones LJ agreeing, refused permission to appeal against the orders of 10 February 2015. It granted permission to appeal against the order of 1 April 2015.
2. Under r 31.22 of the Civil Procedure Rules 1998, collateral-use applications require a balancing exercise between the interests of the disclosing party and those of the proposed collateral user. Permission requires special circumstances amounting to a cogent and persuasive reason. The relevant public interests include the just resolution of civil litigation and the integrity and confidentiality of criminal investigations.
3. The public interest in criminal-investigation confidentiality extends beyond documents concerned with actual or potential witnesses. The class may include documents generated by the Serious Fraud Office and forming part of its investigation. The first-instance judge was entitled to evaluate the documents as falling within that class, referring to Taylor v Serious Fraud Office [1999] 2 AC 177.
4. Potential unfairness to the SFO, which was not a party to the Guernsey proceedings and could not present its account there, was a relevant but non-determinative factor. The English court could also assess the relevance and utility of the documents for the Guernsey proceedings without usurping the function of the Guernsey court.
5. Although the GT documents had been prepared by a private person, their subject matter—records of meetings with the SFO—properly engaged the public interest in criminal-investigation confidentiality.
6. As to the six liquidators’ reports, the Guernsey court had already refused specific disclosure. That fact was itself a sufficient discretionary basis for the English court to refuse permission, while leaving any renewed application based on changed circumstances to the Guernsey court.
7. In relation to documents referred to in open court, the first-instance judge was entitled to consider their connection with the criminal investigation, limited utility, potential unfairness, and the marginal nature or significance of the references. The Court of Appeal nevertheless considered that the issues concerning the 1 April order should be examined on an appeal.

1. Court of Appeal (Civil Division) — On 2 March 2016, permission to appeal was refused against the orders made on 10 February 2015 and granted against the order made on 1 April 2015.
2. High Court of Justice, Queen’s Bench Division, Commercial Court — Eder J refused collateral-use applications and made the relevant restriction and notice orders on 10 February and 1 April 2015.