The Bank Of England v Treasury Solicitor

An English court may give effect to a foreign request for evidence only where the statutory jurisdictional conditions are met and the requested steps are permissible under English law. Section 2(3) of the Evidence (Proceedings in Other Jurisdictions) Act 1975 prevents an order requiring disclosure which could not be compelled in domestic civil proceedings. Confidential information held by the Bank of England under its statutory banking functions remains protected unless a statutory exception applies. Disclosure for use in private foreign litigation does not fall within the relevant public-function or proceedings exceptions where the Bank is not a party. A request may also be refused where execution would prejudice United Kingdom sovereignty by undermining confidential regulatory cooperation.

The Bank of England applied to set aside an order made on 16 January 2025 giving effect to a letter of request from the Commercial Court of Kyiv under the Hague Convention of 18 March 1970. The request sought documents supplied to the Bank in connection with the National Bank of Ukraine’s recognition of a bail-in affecting loans made by UK SPV Credit Finance plc to PrivatBank.

The Bank relied on confidentiality restrictions under the Financial Services and Markets Act 2000, as extended by the Banking Act 2009, and on United Kingdom sovereignty. The Treasury Solicitor did not oppose the application. PrivatBank also opposed disclosure.

1. The application was granted and the order of 16 January 2025 was set aside.
2. The court applied the established two-stage approach to foreign requests for evidence. It first considered jurisdiction and then whether, in its discretion, the order should be made. The jurisdictional conditions in section 1 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 were addressed. Section 2(3) nevertheless prevented an order requiring steps which could not be required for evidence in English civil proceedings.
3. The requested documents were confidential information within section 348(2) of the Financial Services and Markets Act 2000, read with section 89L of the Banking Act 2009. They related to the affairs of the National Bank of Ukraine and PrivatBank and had been received by the Bank of England in discharging functions under Part 1 of the Banking Act. The Bank was a primary recipient under section 348.
4. Neither person whose consent was required had consented to disclosure. The exceptions in section 349 and regulation 5 of the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001 did not apply. Disclosure to a claimant for use in private litigation was not for facilitating the Bank’s public functions, and the Ukrainian proceedings did not fall within the specified categories. The Bank was not, and was not proposed to be, a party.
5. That conclusion was sufficient. Independently, execution of the request would risk prejudicing United Kingdom sovereignty. The Bank’s confidential information-sharing relationships with foreign regulators were important to its supervisory and regulatory functions. The request could therefore also be refused under Article 12 of the Hague Convention.