Regulatory & Investigations
English court refuses permission to provide disclosed documents pursuant to a subpoena from the US courts.
The parent company of one of the parties to this case was served with a subpoena by the US courts. That subpoena required it to produce documents which had been disclosed, and witness statements which had been served, in the English proceedings. The subpoena also required all group companies (including the parties to these proceedings) to produce those documents.
Accordingly, those parties sought permission from the English court to provide those documents to the FBI. Hildyard J noted that prior caselaw has established that the permission of the court will be granted to allow collateral use of documents if: (a) there are special circumstances which constitute "cogent and persuasive reasons"; and (b) such collateral use will not occasion injustice to the person giving disclosure (see Crest Homes Plc v Marks ). He also said that a more restrictive approach should be adopted for collateral use of witness statements prior to trial (especially where trial is imminent).
His conclusion was that "the burden is such that, in reality, it will usually be difficult, if not impossible, to obtain permission for collateral use (especially in the case of witness statements) except where the Court is persuaded of some public interest in favour of, or even apparently mandating, such use which is stronger than the public interest and policy underlying the restrictions that the rules reflect". The fact of compulsion (in light of the subpoena) did not in itself establish "a cogent and persuasive reason".
Applying those principles to the fact of the case, the judge concluded that it had not been shown that disclosure of the documents and witness statements was necessary for the purpose of the US process: "However, in this case the fact is that the justification can only be that the documents in question are really needed to enable the Grand Jury to perfect a course already set (by amending or replacing an indictment they have already caused to be issued) or to investigate whether other persons than those thus far identified as (in its view) the main culprits should also be brought to trial".
Nor had it been shown that the parties had legal control of the requested documents (because permission from the English court was required) and so the judge was not persuaded that they were "truly under compulsion" (even accepting that the subpoena was entirely regular).
COMMENT: Recent caselaw on CPR r31.22 and collateral use of disclosed documents has focussed on the issue of whether a party who wants to use documents for another purpose should be allowed to do so. The issue in this case, though, was different: the group companies faced a difficult choice between (arguably) breaching their duties to the US courts or breaching their duties to the English courts. This judgment makes it clear that the English court will not allow such considerations (in themselves) to override the underlying public policy that a litigant's right to privacy and confidentiality should be preserved.