Barclays Bank PLC v Citibank NA

An order for non-party disclosure is exceptional and must be exercised with caution. The applicant must show, for each document or class of documents sought, that the documents may well support its case or adversely affect another party’s case, and that disclosure is necessary to dispose fairly of the claim or save costs. Satisfaction of those thresholds does not remove the court’s discretion. Speculative or excessively broad requests should be refused, while targeted requests may be ordered where the evidence shows that the material is unlikely to be obtained otherwise.

Barclays brought two conspiracy claims arising from alleged unauthorised payments totalling approximately £13.7 million and a subsequent transfer of group assets. It applied under Civil Procedure Rules 1998, rule 31.17, for non-party disclosure from Citibank concerning accounts and transactions of Global Investment Management Holdings Inc, which was said to have been involved in the later restructuring.

Citibank did not object. GIMH opposed the applications, alleging lack of service, fishing, privacy, commercial sensitivity and privilege. The court considered whether the rule’s relevance and necessity thresholds were met and, if so, whether disclosure should be ordered in the exercise of its discretion.

1. Outcome. The applications were allowed in part. Disclosure was ordered from Citibank of account-opening and know-your-customer material, relevant correspondence subject to privilege, statements for GIMH’s identified account for the whole period of operation, and documents recording or referring to payments made by or to GIMH.
2. GIMH had no entitlement to formal service on the evidence. It knew of the applications, participated in the listing process, had access to the hearing bundle and had filed evidence addressing the merits. There was therefore no unfairness in determining the applications.
3. Under rule 31.17, documents are likely to assist if they may well do so; the test is lower than proof that assistance is more probable than not. Where a class is sought, the test must be satisfied for every document within it, and the court must be satisfied that the documents exist. Necessity is flexible and asks whether disclosure is needed for fair disposal or to save costs.
4. Relevance and necessity are threshold requirements, followed by a discretionary stage. Non-party disclosure remains exceptional. The non-party’s consent is relevant but not determinative.
5. The evidence established the threshold and justified disclosure for categories concerning GIMH’s relationship, account operation and payments. It did not establish that GIMH had more than the identified Citibank account. Existing statements were nevertheless ordered because they contained unexplained redactions and did not confirm closure.
6. The request for documents concerning other payment beneficiaries was refused. It was speculative and too broad, and the evidence did not establish that such documents existed. Citibank could not be left to determine the proper scope of disclosure.
7. Any potentially privileged correspondence had to be identified, with GIMH given an opportunity to apply to prevent inspection. No equivalent protection was justified for alleged commercial sensitivity because there was no evidential foundation or cited authority for excluding such documents.