The Libyan Investment Authority v Societe Generale SA & Ors

Where disclosure creates a risk to life or limb, the court may restrict ordinary access to disclosed material. The applicant must establish a real and immediate risk, meaning a substantial or significant risk that is present and continuing. Where a pre-existing risk exists, the court asks whether disclosure materially increases it and, if so, whether the increased risk meets that threshold. The protective measures must be reasonable and proportionate, but a measure reasonably necessary to protect against a real risk to life or limb is not outweighed by litigation inconvenience. A confidentiality regime may therefore be retained while amended to provide a fair procedure for admitting additional persons to the regime.

The Libyan Investment Authority brought proceedings alleging that trades involving Societe Generale SA and others formed part of a fraudulent and corrupt scheme. Disclosure by the fifth defendant identified individuals said to have received proceeds of the alleged payments. Their identities were protected by a confidentiality club because disclosure was said to expose them and their families in Libya to violence.

The claimant applied to replace the club with a less restrictive restricted information regime, principally so that it could approach potential witnesses. The court considered whether the application was open despite an earlier interlocutory decision, whether disclosure created a real and immediate risk to life or limb, and what protective measures were reasonable and proportionate.

1. The application was competent. The earlier decision had determined only discrete issues concerning particular individuals. The question whether a confidentiality club was required in principle, and whether its terms were reasonable and proportionate, had been reserved. The liberty to apply extended to those reserved issues. In any event, the claimant could challenge the regime because that issue had not previously been determined.
2. Risk threshold. The relevant test under Articles 2 and 3 of the European Convention on Human Rights, and at common law, was whether disclosure created a real and immediate risk to life or limb. The risk had to be substantial or significant, objectively verified where the Convention was relied upon, and present and continuing. Where a pre-existing risk existed, the court first asked whether disclosure materially increased it and then whether the resulting risk met the required threshold.
3. Application to the evidence. The court accepted that persons in Libya reported as having received sizeable sums from a source associated with the former Gaddafi regime remained at a real and immediate, albeit low, risk from criminal and politically linked militias. The risk profile was not confined to money shown to be proceeds of the alleged trades. The relevant individuals were identified by reference to their characteristics and the sums received.
4. Protective duty. The State’s operational duty was to take appropriate and reasonable steps, without imposing an impossible or disproportionate burden. However, once a restriction was reasonably necessary to protect against a real risk to life and limb, that necessity was not outweighed by the restriction’s effect on trial preparation.
5. Order. The confidentiality club was retained, including its secure storage, transmission and handling provisions. It was amended to include a negative resolution procedure for proposed disclosure to non-members. The procedure applied to all non-relevant persons, with the burden remaining on those opposing admission to establish the risk. The amended order was reasonable and proportionate. The parties were directed to draw up a revised order.