Omers Administration Corporation & Ors v Tesco Plc

In a party-to-party disclosure application, relevance is the prima facie test, but confidentiality owed to third parties must also be assessed. Confidentiality alone does not justify withholding relevant documents. The court must consider whether the overriding objective can be achieved without production, including whether the information is available elsewhere and whether protective measures will suffice.

Where documents were obtained under compulsory criminal-investigation powers, the public interest in preserving confidentiality and encouraging cooperation carries particular weight. It may nevertheless yield where the documents are likely to confer a litigious advantage or their withholding would cause a litigious disadvantage, especially where the material is contemporaneous and central to a fair trial. Disclosure should then be accompanied by proportionate safeguards.

The claimants sought compensation under the Financial Services and Markets Act 2000 for alleged false and misleading statements by Tesco concerning its commercial income and trading profits.

Tesco held documents obtained by the Serious Fraud Office during its criminal investigation, principally under section 2 of the Criminal Justice Act 1987. The documents had been supplied to Tesco for the purposes of negotiating and concluding a deferred prosecution agreement, subject to confidentiality restrictions. Third-party providers objected to onward disclosure in the civil proceedings.

The issue was whether Tesco should disclose the relevant documents to the claimants and, if so, what restrictions should govern their retention and use.

1. Disclosure ordered in principle. The objections did not justify preventing production of documents in Tesco’s possession and control. The documents were likely to confer a substantial litigious advantage on the claimants, while withholding them would create an unfair disadvantage because Tesco already possessed them.
2. Applicable approach. CPR Part 31 distinguishes party-to-party disclosure, non-party disclosure and collateral use. CPR 31.22 was not directly engaged because the application concerned disclosure, not later collateral use. CPR 31.17 was also not strictly applicable because the documents were sought from a party. The question was whether the case could be dealt with justly and at proportionate cost without production.
3. Balancing confidentiality and fair trial. Confidentiality is not, by itself, a ground for protection. The court must consider the strength and value of the interest in preserving confidentiality, the damage caused by disclosure, whether the fair disposal of the proceedings can be achieved without disclosure, and whether restricted disclosure will suffice. The assessment is an exercise of judicial judgment rather than a mechanical balancing of commensurable interests.
4. Compulsory criminal-investigation material. Public interest confidentiality is particularly important where documents were obtained under compulsory powers and confidentiality was promised or implicit. It protects the integrity of criminal investigations and encourages cooperation with prosecuting authorities. That interest nevertheless yielded here. The documents included contemporaneous material, interview transcripts and evidence likely to bear directly on alleged fraud, deleted or fabricated records, knowledge within Tesco and the issues in the criminal and civil proceedings.
5. Necessity and safeguards. The court could consider whether equivalent information was available elsewhere, but “necessity” was not a free-standing hurdle. Relevant material should ordinarily be produced where its non-disclosure would cause litigious disadvantage, subject to suitable safeguards. Specific private material capable of being redacted without undermining the evidential value of the documents could be removed. Further restrictions concerning confidentiality clubs, use at trial and possible CPR 31.22(2) orders were left for further consideration.