Blue Holdings & Ors v National Crime Agency

Where a document is directly alluded to in a witness statement, it is “mentioned” for the purposes of CPR r.31.14. The usual consequence is a qualified right to inspect it. The court retains a discretion to refuse inspection, but the party resisting inspection bears the burden of displacing that general rule.

There is no separate threshold requiring inspection to be necessary for the fair disposal of the case. Necessity may instead be relevant to proportionality and to the balance between procedural fairness and confidentiality. Mutual legal assistance requests are ordinarily confidential. However, where a request invokes the court’s jurisdiction to make an asset prohibition order, fairness may require redacted disclosure of material establishing the order’s jurisdictional basis.

The National Crime Agency obtained and continued a prohibition order over assets in England and Wales at the request of the United States Department of Justice. The request supported United States civil forfeiture proceedings concerning assets said to derive from corruption during the Abacha regime.

The appellants sought inspection of the mutual legal assistance request under CPR rr.31.14 and 31.15 because it had been referred to in the NCA officer’s witness statement. Laing J refused inspection, holding that it was unnecessary for the fair disposal of the proceedings and that the request was confidential state-to-state correspondence: [2015] EWHC 357 (Admin).

The appeal concerned whether the request was mentioned for CPR purposes, the scope of the resulting right of inspection, and the balance between procedural fairness and the confidentiality of mutual legal assistance communications.

1. Appeal allowed in part. Gross LJ, with whom Hamblen LJ and Sir Colin Rimer agreed, held that the request was plainly mentioned in the witness statement. The direct references to an external request identifying the relevant property satisfied CPR r.31.14. The request was also in writing. Article 4 of the Treaty contemplated written requests save in urgency, and the NCA’s evidence referred to letters of request.

2. A document mentioned under CPR r.31.14 is ordinarily open to inspection. That right is not automatic or absolute. The court retains a discretion to refuse inspection, and the party resisting it must justify departure from the general rule. Proportionality, privilege and confidentiality may qualify the right.

3. The judge erred by treating necessity for the fair disposal of the application as a free-standing hurdle before inspection could be ordered. Under the Civil Procedure Rules, necessity is instead a relevant consideration within proportionality or the balancing exercise required where confidentiality is asserted.

4. Mutual legal assistance requests attract a strong and legitimate expectation of confidentiality under the Treaty and the applicable guidance. That interest must nevertheless be balanced against the overriding objective and procedural fairness where the request is used to invoke the court’s jurisdiction for a prohibition order.

5. Fairness required disclosure and inspection of a redacted version of the request insofar as it identified the restrained property. Identification of the assets was no longer confidential, and the appellants and the court should not be left solely to the NCA’s account of the jurisdictional document. If the NCA or DOJ wished to maintain the request, it had to provide that redacted disclosure.

6. Confidentiality prevailed as to whether the identified property was “relevant property”. The appellants had sufficient information to challenge that issue, had effectively not done so, and further inspection would not materially assist them in light of the low statutory threshold. The court therefore upheld the refusal of disclosure on that issue.

• Court of Appeal (Civil Division): Allowed the appeal in part and required disclosure and inspection of a redacted request identifying the property if the request was pursued: [2016] EWCA Civ 760.
• High Court (Administrative Court): Laing J continued the prohibition order and refused inspection of the mutual legal assistance request: [2015] EWHC 357 (Admin).