JSC Commercial Bank Privatbank v Igor Valeryevich Kolomoisky & Ors

Permission to use compulsorily disclosed material for a foreign criminal investigation requires special circumstances and persuasive reasons, without injustice to the person who disclosed it. A foreign court order compelling, or potentially requiring, production is a powerful factor, but it is not conclusive. The public interest in investigating serious fraud may outweigh the policy protecting collateral use, especially where the material has substantially lost its confidentiality through use at a concluded public trial. The court must still weigh prejudice, the nature and scope of the request, available mutual-assistance procedures, and applicable data-protection requirements.

The claimant sought permission to disclose schedules 4 and 5 to its particulars of claim to the Ukrainian Bureau of Economic Security. The request followed an order of a Ukrainian investigating judge granting temporary access to documents relevant to a criminal investigation into alleged fraud by the first defendant. The schedules contained allegations concerning ownership and control of companies and information derived partly from asset disclosure protected by a collateral-use undertaking.

The application was opposed by the first and second defendants. The issues included the effect of the Ukrainian order, the public-domain status of information used at the English trial, possible circumvention of mutual legal assistance arrangements, prejudice to the defendants, and restrictions under chapter V of the GDPR.

1. Application granted. The claimant established special circumstances justifying release from the collateral-use undertaking, and disclosure would not cause prejudice amounting to injustice.
2. The prohibition on collateral use protects privacy and encourages full and frank disclosure. It extends to information obtained from disclosed documents. Under Crest Homes plc v Marks, the applicant must show cogent and persuasive reasons, special circumstances, and absence of injustice.
3. The Ukrainian order carried considerable weight. The evidence was divided on whether it imposed an immediately enforceable obligation, but there was a strong possibility of execution, a search order, or foreign sanction. A double risk of breach of the English undertaking and foreign sanction was a sufficient special circumstance capable of justifying release.
4. The public interest in investigating serious fraud strongly favoured disclosure. The safeguards associated with mutual legal assistance were relevant in Marlwood Commercial v Kozeny, but were not a necessary precondition. No legal impediment required Ukraine to use that procedure.
5. The information had been extensively used in submissions and evidence at the concluded trial. Although orders preserved the technical operation of the collateral-use rules, the material had substantially lost confidentiality. That was a powerful factor in favour of permission.
6. The GDPR was potentially engaged because transferring the schedules to Ukraine would involve processing personal data. Article 49(1)(e) applied: compliance with the Ukrainian order was a targeted and proportionate means of assisting the establishment, exercise or defence of legal claims. The court did not decide Article 49(1)(d).
7. The court permitted disclosure of schedules 4 and 5 to the Ukrainian authorities.