Tchenguiz & Ors v The Director of the Serious Fraud Office

An order made to preserve the position pending a later determination does not decide the substantive rights of the parties. A court should not retrospectively convert such case-management arrangements into a final determination based on an incomplete understanding of the facts or law. Permission to use documents in one set of proceedings does not, without more, determine whether the documents may be used in another. Any loss of legal professional privilege should be confined to what is necessary to protect the competing interest. Permission to use disclosed documents may be granted subject to procedural safeguards, while a disputed application concerning other documents may be held over for further evidence and argument.

The judgment concerned interim applications arising from complex litigation involving documents disclosed in earlier proceedings brought against the Serious Fraud Office. The claimants sought declarations concerning 17 documents, including declarations that they had been entitled, or remained entitled, to use them and that they should be excluded from a list of inadvertently disclosed documents.

They also sought permission under CPR 31.22(1)(b) to use 97 documents in the present claim. The court had not read the documents. The central issues were the effect of an earlier case-management order, the significance of a Court of Appeal decision concerning disclosure, privilege, public domain arguments and permission to use documents in different proceedings.

1. The declarations concerning the 17 documents were refused. The declaration concerning past entitlement served no useful purpose. The declaration concerning present entitlement was unfounded because the order of 3 May 2016 had preserved a process for later determination; it had not preserved an existing right to use the documents. The declaration excluding the documents from the list was inappropriate because they had remained on that list for a substantial period.
2. The order of 3 May 2016 was intended to hold the ring. The judge had deliberately avoided reaching a substantive conclusion on the 17 documents because he did not have a full understanding of the facts and law. Any error in that order was a matter for the Court of Appeal, while any later decision under the liberty to apply would be a new order made on the circumstances then existing.
3. The earlier Court of Appeal decision, [2014] EWCA Civ 1129; [2015] 1 WLR 797, concerned whether it was obvious to a reasonable solicitor that documents had been disclosed inadvertently. It did not decide whether the documents had in fact been inadvertently disclosed. The latter issue therefore remained open.
4. Permission to use documents in the SFO proceedings under CPR 31.20 was not conclusive of whether the claimants should be permitted to use them in the present claim. If the documents had not entered the public domain, loss of privilege in one claim would not necessarily prevent privilege being maintained in another. The court adopted the principle that loss of legal professional privilege should be limited to what was necessary to protect other interests, as stated in Eurasian Natural Resources Corporation Ltd v Dechert LLP [2016] EWCA Civ 375; [2016] 1 WLR 5027 and B v Auckland District Law Society [2003] 2 AC 736.
5. Permission was granted under CPR 31.22(1)(b) for the 97 documents, less three documents, subject to agreed procedural safeguards. The application concerning the 17 documents was held over pending further argument, including the privilege application by GT(UK), and directions were given for evidence and a further hearing.

The judgment records earlier procedural steps in the same litigation, including a Court of Appeal order granting permission to appeal on 12 July 2016 and an order by Gloster LJ dated 21 July 2016 staying the return of the 17 documents while prohibiting their review. It also records a Court of Appeal judgment concerning disclosure: [2014] EWCA Civ 1129; [2015] 1 WLR 797. The present court made interim directions and did not determine the pending appellate issues.