The Libyan Investment Authority v Société Générale S.A. & Ors

A receiver’s authority under a receivership order is construed by reference to the order’s purpose and context. A power concerning property used to prosecute and enforce existing claims does not ordinarily extend to reviewing disclosed documents to investigate possible claims against other parties. Nor does a general power to do things incidental to the receiver’s powers extend to applications directed to a different object. Permission to review documents subject to the collateral-use prohibition may nevertheless be justified where special circumstances exist and no injustice would result. The public interest in facilitating the just resolution of civil litigation may constitute such a circumstance, although the absence of an existing claim or prima facie case weakens the application.

The Libyan Investment Authority sought permission to review documents disclosed in concluded proceedings against Société Générale and others. The proposed review was intended to investigate possible claims concerning transactions with other financial institutions. Société Générale consented, but Mr Giahmi and Person B opposed the application.

The application was made by a receiver appointed to manage the LIA’s claims in the Société Générale action. The principal issue was whether the July 2015 receivership order authorised the receiver to seek release from the collateral-use prohibition for this purpose. The court also considered challenges concerning representation, subject-matter jurisdiction, privacy and discretion.

1. The application was dismissed. The July 2015 receivership order empowered the receiver to exercise the LIA’s rights concerning choses in action in the Société Générale action and to prosecute and enforce those claims. The expression “with regard to the Property” was not broad enough to cover a review aimed at investigating possible claims against other financial institutions. The fact that the application arose in the Société Générale action was insufficient: its purpose was materially different. [2017] EWHC 2631 (Comm) [8]-[16].
2. The incidental-powers provision did not alter that conclusion. An application to assist enforcement of the Société Générale claims could have been incidental to the receiver’s powers. An application directed to identifying documents for use in separate proceedings had a different aim and object and was outside the order. [2017] EWHC 2631 (Comm) [15]-[16].
3. The court rejected the further jurisdictional objections. The Libyan provisions relied upon concerned representation rather than the LIA’s capacity to bring proceedings. Representation before the English court was governed by the court’s own order, under which the receiver was entitled to act for the LIA. The order sought did not require a foreign defendant to do anything, so the subject-matter jurisdiction objection failed. Article 8 of the ECHR would not prevent relief because the proposed reviewers had already accessed the documents and controlled review would cause no additional invasion of privacy. [2017] EWHC 2631 (Comm) [18]-[29].
4. Obiter, if the receiver had possessed the necessary power, the court would have granted permission. Under Crest Homes v Marks and Marlwood v Kozeny, release from the collateral-use prohibition requires special circumstances and no injustice. The public interest in facilitating the just resolution of civil litigation, recognised in Tchenguiz v Director of the SFO, could constitute special circumstances. The absence of an existing claim or prima facie case weakened the application but was not decisive. The controlled review would cause no justifiable prejudice. [2017] EWHC 2631 (Comm) [30]-[52].
5. The court noted a dispute, revealed after circulation of the draft judgment, about whether the application should be dismissed or adjourned to allow a lacuna in the receivership order to be cured. Further argument was required on that issue. [2017] EWHC 2631 (Comm) [53].

First-instance decision. The judgment records no appeal or earlier decision determining the present application.