The Public Institution for Social Security v Muna Al-Rajaan Al Wazzan & Ors

Foreign criminal or secrecy rules do not automatically excuse a party from English disclosure. The court must assess whether compliance creates a real risk of prosecution or other serious prejudice, and balance that risk against the importance of the documents to a fair trial. Comity is relevant, but does not ordinarily require the court to use a slow or uncertain letter-of-request procedure instead of direct party disclosure. A standard English disclosure order backed only by procedural consequences is not ordinarily an official act performed on foreign territory for the purposes of a foreign sovereignty offence. Applications may nevertheless be granted in part or controlled by safeguards to prevent onward transmission to a foreign state.

The claimant, a Kuwaiti public institution, brought claims totalling about US$874 million arising from alleged corruption by its former director general. The First and Second Defendants applied to resist disclosure and inspection of a substantial file held by the Swiss Federal Prosecutor’s Office and other documents held in, or obtained from, Switzerland.

They relied on alleged breaches of Swiss law, risks of prosecution or other prejudice, comity, criminal mutual legal assistance proceedings and the possible use of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. The central issues were whether the documents were within the defendants’ control, whether disclosure created a real risk of Swiss liability or prejudice, and whether the court should exercise its procedural discretion to withhold or restrict disclosure.

1. Disposition. The applications were dismissed, subject to further argument about safeguards to reduce the risk that documents disclosed to the claimant would be transmitted onward to Kuwait.
2. Control and privilege. Under the disclosure definition in the Civil Procedure Rules 1998, documents were within the defendants’ control where they had a right to inspect or copy them. Copies held by Swiss or English lawyers acting as agents remained within the defendants’ control. Instructions limiting use or seeking return of copies did not remove that control. An unprivileged document did not become privileged merely because it was attached to a privileged communication, applying Sports Direct International Plc v Financial Reporting Council [2020] EWCA Civ 177.
3. English procedural law. Disclosure and inspection were matters of procedure governed by the lex fori. Foreign criminal law could be relevant to the court’s discretion, but could not automatically override English procedure. The applicants had to establish a real risk of prosecution or other serious prejudice. Expert disagreement did not itself establish that risk.
4. Balancing exercise. Following the principles in Bank Mellat v HM Treasury [2019] EWCA Civ 449, the court weighed the risk against the importance of the documents to the fair disposal of the English proceedings. The documents were essential to the claimant’s pleaded case. A civil letter-of-request route would be slow, cumbersome and inadequate, as recognised in Morris v Banque Arabe et Internationale d’Investissement SA [2001] ILPr 37 and Secretary of State for Health v Servier Laboratories Ltd [2013] EWCA Civ 1234.
5. Swiss law. The court preferred the evidence that the non-public nature of Swiss preliminary proceedings did not impose a general secrecy obligation on defendants under the Swiss Criminal Procedure Code. It considered it much more likely than not that ordinary disclosure would not breach SCC Article 271, which concerned official activities on Swiss territory rather than ordinary documentary production backed only by procedural sanctions. Copies already held in England were outside the territorial scope of that provision. The alleged breaches of SCC Articles 273 and 293, and of the other confidentiality provisions relied on, were not established.
6. Comity and safeguards. Comity could play a freestanding role in the discretion. Respect was due to the Swiss courts’ concern about onward transmission to Kuwait, but that concern could be addressed by tailored restrictions. It did not justify withholding documents that the defendants themselves could access and had used to prepare their defences. Disclosure also promoted the CPR 1.1 objective that the parties should be on an equal footing.