NMC Health PLC v Ernst & Young LLP

In disclosure disputes, a party may rely on informed advice about the broad nature of documents to conclude that they fail the relevance test, without reviewing every document where further review would impose disproportionate cost.

Criminal Procedures Law, Article 67, protects the confidentiality of investigation procedures and results through the specific categories identified in its second sentence. That provision does not impose the same confidentiality bar on an entity assisting prosecution authorities with their inquiries where that entity does not fall within those categories.

NMC Health PLC, in administration, sought disclosure in proceedings against Ernst & Young LLP. Two issues concerned documents relating to UAE regulatory matters and communications with the Public Prosecutor for Abu Dhabi.

The court considered whether NMC could properly decide, on the basis of information supplied by those familiar with the documents, that the UAE regulatory documents were irrelevant and need not be reviewed. It also considered whether Article 67 of the Criminal Procedures Law prevented disclosure of communications supplied by NMC entities to the Abu Dhabi prosecution authorities.

1. The court accepted that a disclosure review need not extend to every potentially identifiable document. It was open to NMC, through Mr O’Rourke, to obtain information about the broad nature of the UAE regulatory documents and conclude that they did not meet the relevance test. A further review would have incurred cost without sufficient justification. The defendant’s contrary submission was rejected (paras 1–5).
2. Article 67 of the Criminal Procedures Law was construed by reading its first sentence together with its second sentence. The second sentence specifies the persons subject to the confidentiality duty, including members of the Public Prosecution and others involved in or attending the investigation ex officio.
3. The use of “consequently” in the second sentence supported the conclusion that the identified categories defined the scope of the confidentiality bar. The absence of the words “in particular” also weighed against treating the first sentence as imposing a wider and unrestricted obligation.
4. An entity assisting prosecution authorities with their inquiries, in the position of NMC Limited, was not within the specified categories. Article 67 therefore did not prevent disclosure of the relevant communications to the English court (paras 6–17).
5. The claimant’s approach succeeded on relevance. The defendant prevailed on the Article 67 issue (para 18).