Thomas John Joshua & Ors v Renault SA & Ors

When disclosure ordered by an English court may expose a party to foreign criminal liability, the English court retains jurisdiction to order disclosure. The court must assess whether there is a real, rather than fanciful, risk of prosecution and then balance that risk against the fairness and convenience of the available disclosure routes.

Relevant considerations include the importance of the evidence, delay, expense, the parties’ conduct, comity, confidentiality and any available foreign-law defences. Administrative guidance from a foreign authority is evidence but is not itself the law. A foreign blocking statute may apply to inter partes disclosure as well as non-party disclosure, but its application does not automatically require use of the Hague Convention.

The judgment concerned applications by Renault and the Peugeot/Citroën/DS defendants in the Pan-NOx emissions group litigation. They sought orders appointing a commissioner under Chapter II of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970, so that disclosure ordered in England could be provided without exposing French companies or employees to prosecution under the French Blocking Statute.

The applications followed earlier disclosure orders in the related litigation and recent correspondence, opinions and summonses involving the French SISSE and Public Prosecutor. The central issues were whether Article 1 bis applied to the documents sought, whether there was a real risk of prosecution, and, if so, whether the Hague Convention route should be adopted.

1. Applications rejected. The applications by the Renault and PCD defendants for orders appointing a commissioner to process disclosure were refused. The court declared that there was no real risk of prosecution and that, even if such a risk existed, the balancing exercise would not justify the orders sought.
2. Application of the French Blocking Statute. Article 1 bis applied to disclosure between parties, not merely to intrusive requests made against non-parties. The information sought was industrial, technical or commercial in nature and fell within the broad wording of the provision. The statute’s substance and purpose had not materially changed as a result of the 2016 or 2022 administrative reforms.
3. Risk of prosecution. The party relying on foreign criminal law had to prove a real risk of prosecution. The absence of previous prosecutions was not an absolute rule, but the evidence did not establish that the 2022 reforms had produced a shift from administrative encouragement of Hague Convention use to a real prosecutorial risk. SISSE opinions under Article 1 bis were non-binding and could be wrong as to the law. The summonses showed an investigation into a possible future offence, but did not establish a real risk of prosecution for disclosure which had not yet occurred.
4. Balancing exercise. If a real risk had existed, the court would have balanced it against the fairness and convenience of the Hague route. Relevant matters included prejudice to fair disposal, delay, expense, the parties’ conduct, possible defences, comity and confidentiality. The Hague process was workable but added procedural uncertainty, cost and potential delay, especially for the wider disclosure exercise.
5. Comity and confidentiality. Comity operated in both directions. The English court would not lightly expose a party to foreign prosecution, but it was entitled to expect respect for orders made within its accepted jurisdiction. A confidentiality ring could materially reduce the concern. On the hypothetical balancing exercise, comity and confidentiality would have justified direct disclosure despite a real risk of prosecution.
6. The court declined to determine the wider geographical scope of Article 1 bis because the issue did not arise for the current Disclosure Order.