Persons Identified in Schedule 1 to the Re-Re-Amended Particulars of Claim v Standard Chartered PLC

Disclosure remains a procedural default in English civil litigation. Where a party relies on foreign-law confidentiality, the court must assess the real or actual risk of prosecution or other sanction, the documents’ materiality to fair disposal, comity, and protective measures such as a confidentiality ring. The withholding party bears a substantial burden, but the court must exercise judgment rather than apply a mechanical relevance or balancing-scales test. Prior prosecutions are relevant, not a threshold requirement. Confidentiality owed to a foreign regulator can matter, but its regulatory origin does not inherently give it enhanced weight. The approach in Bank Mellat [2019] EWCA Civ 449 and Science Research Council v Nassé [1980] AC 1028 was applied.

The claimants, investors in Standard Chartered PLC, brought claims under sections 90 and 90A of the Financial Services and Markets Act 2000 concerning alleged misstatements and omissions in published information and prospectuses.

Standard Chartered applied to withhold documents concerning US suspicious activity reports and confidential supervisory information. It relied on foreign-law confidentiality obligations and alleged risks of prosecution or regulatory sanction. The High Court, in [2025] EWHC 2136 (Ch), refused the withholding order and directed disclosure into a confidentiality ring.

The appeal challenged the assessment of foreign-law risk, the significance of the documents, and the exercise of discretion, including the weight to be given to regulatory confidentiality and comity.

Appeal dismissed. Miles LJ gave the judgment, with which Snowden LJ and Newey LJ agreed.

1. Applicable principles. English procedural law governs disclosure in English litigation, even where compliance may breach foreign law. The court retains a discretion, informed by the real or actual risk of foreign prosecution or sanction, the importance of the documents to fair disposal, comity, and protective measures. This followed Bank Mellat [2019] EWCA Civ 449. Confidentiality alone does not create immunity from disclosure, and the ultimate question is whether the proceedings can be disposed of fairly: Science Research Council v Nassé [1980] AC 1028.
2. Risk assessment. The judge’s reference to likelihood in one paragraph was infelicitous, but his judgment read as a whole applied the real or actual risk test. Previous prosecutions are not a threshold requirement. Their absence is relevant and may be influential, but the evidence must be assessed as a whole. Criminal and civil or regulatory risks must be considered separately, although a lesser sanction will ordinarily carry less weight.
3. Materiality and burden. Disclosure is the default rule and the withholding party bears a substantial burden of persuasion. The court must assess materiality and significance, not merely binary relevance. The judge had addressed the potential importance of the US SAR Documents and his evaluation was not rationally insupportable. The appellate court therefore applied the restrained approach to discretionary case-management decisions stated in Piglowska v Piglowski [1999] 1 WLR 1360.
4. Regulatory confidentiality. Confidentiality owed to a foreign regulator may be relevant, but regulatory origin does not inherently require enhanced weight. National Crime Agency v Abacha [2016] EWCA Civ 760 concerned state-to-state communications under a mutual-assistance treaty and did not establish a general rule for communications between regulated entities and foreign regulators. The confidentiality ring was a rationally supportable protective measure.
5. Application. The evidence did not establish a real risk of prosecution or other action. Relevant considerations included the historic nature of the documents, the absence of evidence of ongoing investigations, Standard Chartered’s cooperation, the compulsory nature of disclosure, and the confidentiality ring. The judge made no error of law or principle. Grounds 1, 2 and 3 were dismissed. Although the parties later settled the action, the judgment was handed down in accordance with Barclays Bank v Nylon Capital [2011] EWCA Civ 926.

1. Court of Appeal (Civil Division): In [2025] EWCA Civ 1581, the court dismissed Standard Chartered PLC’s appeal.
2. High Court of Justice, Business and Property Courts, Financial List (ChD): Mr Justice Michael Green, in [2025] EWHC 2136 (Ch), refused the application to withhold documents and ordered disclosure into a confidentiality ring.