PJSC National Bank Trust & Anor v Boris Mints & Ors

The court may release or modify an undertaking restricting collateral use of disclosed documents where there are special circumstances providing cogent and persuasive reasons, and the release will not cause injustice to the person who disclosed them. Compulsion under foreign law is a powerful factor, particularly where refusal may expose a party or its officers to criminal sanctions, but it is not automatically decisive. The court must balance the public interest in preserving confidentiality against the public interest in investigating and prosecuting fraud and promoting international judicial co-operation. Material already read or referred to at a public hearing may be in the public domain, substantially reducing the justification for continued confidentiality.

The claimants sought urgent permission to use asset disclosure schedules and affidavits obtained under worldwide freezing orders in English proceedings. A Russian criminal investigator had obtained an order authorising seizure of those documents from Bank Otkritie in connection with an investigation into the same underlying transactions. The claimants relied on evidence that non-compliance could expose the bank and its officers to serious Russian criminal and financial sanctions. The defendants opposed release, disputing the effect of the Russian order and contending that the seizure was directed to advancing a civil claim. The central issue was whether the express undertaking should be varied to permit disclosure to the Russian criminal authorities.

1. Application granted. The claimants were released from the relevant undertaking so that the asset disclosure documents concerning the first to third defendants could be provided to the Russian Investigator. Appropriate redactions were to be made in relation to material concerning the fourth defendant.
2. The governing approach was that stated in Crest Homes plc v Marks [1987] AC 829: release or modification requires special circumstances amounting to cogent and persuasive reasons, and must not occasion injustice to the person giving disclosure. The same principles applied to an express undertaking.
3. Compulsion under foreign law was not by itself conclusive. It was, however, a powerful factor. On the evidence, the claimants had obtained professional advice that refusal to co-operate could expose the bank and its officers to imprisonment, forced or compulsory labour, fines and other sanctions. It was unrealistic to require them to second-guess that advice by relying on contrary expert evidence.
4. The court was not required finally to resolve the dispute between the Russian-law experts. The relevant question was whether the claimants faced a genuine and serious risk if they complied with the Russian order.
5. The material had largely entered the public domain. The asset schedules and affidavits had been included in the return-date hearing bundles, referred to in argument, and read by Jacobs J, who relied on them in his reserved judgment. Under CPR 31.22, that was significant, and the same principle applied to the express undertaking.
6. Release furthered the investigation of alleged fraud and international judicial co-operation. The Russian order was directed to legitimate criminal purposes, including possible penalties, financial charges and confiscation, and the documents were expressly treated as relevant to the criminal case. The defendants had not shown material prejudice or established that the Russian proceedings were being used merely as a device to advance the English civil claim.
7. The case was distinguishable from ACL Netherlands v Michael Richard Lynch (No. 2) [2019] EWHC 249 (Ch), because the foreign order here was addressed to the claimant bank and contained no relevant carve-out.