THE FINANCIAL CONDUCT AUTHORITY v KONSTANTINOS PAPADIMITRAKOPOULOS & Anor.

Section 9(2) of the Crime (International Co-Operation) Act 2003 prohibits any use of evidence obtained through mutual legal assistance for a purpose other than that specified in the request, unless the appropriate overseas authority consents. The prohibition extends beyond deployment of the material as evidence. It includes using the material to inform investigations, interviews, further requests or decisions to bring civil proceedings.

Impermissible collateral use may constitute an abuse of process, but a finding of abuse does not automatically require strike out. The court must apply the overriding objective and assess proportionality, including whether a fair trial remains possible and whether less severe protective measures are available.

The FCA brought civil proceedings against the defendants, former officers of Globo Plc, alleging market abuse and knowing involvement in statutory contraventions. The FCA had conducted a dual-track criminal and civil investigation and obtained material from overseas authorities through mutual legal assistance requests under the Crime (International Co-Operation) Act 2003.

The first defendant applied to strike out the claim under CPR 3.4(2)(b), alleging that the FCA had used mutual legal assistance material for collateral civil purposes without the required consent. The issues concerned the meaning of use, whether prohibited use had occurred, whether consent existed, and whether the proceedings should be struck out.

1. The application was refused. The court found impermissible collateral use of material obtained from the Greek and SVG authorities, but concluded that strike out was not a proportionate sanction.

2. The word use in section 9(2) of the Crime (International Co-Operation) Act 2003 bears its natural and wide meaning. It includes using information to inform further investigations, interview questions, additional requests for evidence, or the decision to bring civil proceedings. The statutory scheme in sections 7 to 9 operates coherently and does not support a narrower meaning limited to deployment in evidence.

3. The broad construction is reinforced by section 51, which defines evidence to include information in any form, and by the statutory purpose of maintaining effective international mutual assistance. The reasoning in Gohil v Gohil was not authority for restricting use to evidential deployment. Its reference to a springboard arose from the special circumstance that the material had already entered the public domain through open court proceedings.

4. The FCA’s dual-track investigation used mutual legal assistance material to inform criminal and civil investigations. No information barrier existed. That use breached section 9(2), subject to the separate question of consent.

5. The standard wording in the FCA’s requests, referring to proceedings connected with the investigation and including restraint or confiscation proceedings, did not clearly extend to civil proceedings. In context, it referred to criminal proceedings connected with the criminal investigation. The Greek authorities had not consented to general civil use. Consent from the SVG authorities was obtained only retrospectively and could not cure earlier use. Consent from the Swiss authorities raised a triable issue.

6. The FCA’s conduct amounted to an abuse of process because it used court procedures in a manner significantly different from their ordinary and proper use and created potential unfairness. However, abuse does not automatically entail strike out. The court had to balance international comity, the public interest in the FCA’s claim, the FCA’s good faith, the limited evidential deployment, and the possibility of a fair trial.

7. The court ordered, or was minded to order, that material obtained from the Greek and SVG authorities should not be admissible in the civil proceedings, should be segregated from the civil case team, and should be retained only for any future criminal proceedings or returned. The parties were invited to address consequential issues, including retrospective permission from the Greek authorities and costs.