Rawlinson & Hunter Trustees SA (Trustee of the Tchenguiz Discretionary Trust) v Serious Fraud Office

Factual and Procedural Background

The main claims in these proceedings were settled in July 2014. However, the Court is now addressing several urgent applications made by a claimant, Company A in its capacity as trustee of a discretionary trust ("Company A"), seeking permission under CPR 31.22 and CPR 32.12 to use certain disclosed documents and extracts from witness statements from the main proceedings in a pending appeal before a court in another jurisdiction ("the Foreign Proceedings"). The appeal arises from a decision delivered on 6 December 2013 and is scheduled for hearing on 16 February 2015.

Originally, some applications were advanced personally by an individual ("Appellant"), but this distinction was found not to be material. The applications include requests to use disclosed documents by the Serious Fraud Office ("SFO"), documents obtained from a third party, Company B, and reports prepared by Company B on instructions from joint liquidators ("JLs"). There was also a separate application seeking a declaration that certain documents are already in the public domain under an exception to the collateral use prohibition.

The Court previously refused similar applications concerning disclosed documents, with those refusals upheld on appeal. The current applications raise similar issues but involve additional documents and parties.

Legal Issues Presented

1. Whether permission should be granted under CPR 31.22(1)(b) and CPR 32.12(2)(b) to use disclosed documents and witness statement extracts for collateral purposes in the Foreign Proceedings.
2. Whether the applications constitute an abuse of process given the history of multiple applications and late service of evidence.
3. Whether certain documents have entered the public domain under CPR 31.22(1)(a), thereby removing restrictions on their use.
4. Whether an order should be made under CPR 31.22(2) to restrict or prohibit use of documents despite their having been referred to in public hearings.

Arguments of the Parties

Appellant's Arguments

• A serious injustice was done in the Foreign Proceedings, causing substantial financial loss and prejudice to Company A.
• The documents sought to be used are highly relevant to the Foreign Proceedings and necessary to properly explain the injustice to the Foreign Court.
• There are no sufficiently powerful countervailing considerations to justify denying permission, and there is a strong public interest based on the rule of law and Article 6 ECHR that the flawed investigation by the SFO should be examined with all relevant evidence.
• The underlying transactions and parties in the main proceedings and Foreign Proceedings overlap significantly, so the documents are not being used for a wholly extraneous or collateral purpose.
• Some documents were included in trial bundles and would have been referred to in open court but for the settlement.
• Consent was given by the SFO for limited use of some documents in contempt proceedings in the Foreign Proceedings.
• The amended grounds of appeal ("AGA") provide detailed points supported by the documents, including alleged breaches of disclosure obligations and information-sharing arrangements between the SFO, Company B, and the JLs.
• There is a constitutional principle of open justice and transparency supporting disclosure where documents have been referred to in public hearings.

Respondents' Arguments

• The applications should be struck out or rejected as an abuse of process due to repeated applications, delay, late evidence, irrelevant or inadmissible evidence, and absence of proper grounds of appeal.
• The applications have an ulterior improper purpose to bring documents into the public domain or to bolster other proceedings against Company B or the JLs.
• The documents disclosed by the SFO relate to a criminal investigation; there is a strong public interest in preserving the integrity of such investigations and protecting confidentiality.
• There is no significant change in circumstances justifying repeated applications concerning the same documents.
• The claimed relevance and probative value of the documents are substantially the same as in previous unsuccessful applications.
• Some parties affected by the applications have not consented to the collateral use of the documents.
• The documents from Company B are confidential records of private conversations with the SFO and reveal investigative methods and communications with prosecuting authorities.
• The JLs argue that Company A is not entitled to use certain reports in its capacity as trustee of the discretionary trust without consent or court permission, and that the application is an abuse of process.
• The documents and reports have limited utility in the Foreign Proceedings and admitting them risks unfairness to the SFO, Company B, and other parties.
• An order under CPR 31.22(2) should be made to restrict use of documents already referred to in public hearings, to preserve confidentiality and fairness.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tchenguiz v SFO [2014] EWHC 2597 (Comm)	Refusal of collateral use of disclosed documents; principles governing CPR 31.22 applications.	Previous refusal of similar applications; court relied on reasoning in this judgment to refuse current applications.
Tchenguiz v SFO [2014] EWHC 4199 (Comm)	Further refusal of collateral use applications; upheld by Court of Appeal.	Reinforced the approach to collateral use; current applications found to raise similar issues.
[2014] EWCA Civ 1409	Court of Appeal judgment upholding refusal of collateral use; emphasis on special circumstances and balancing exercise.	Confirmed burden on applicant to show special circumstances; strong public interest in protecting criminal investigations.
Taylor v Director of the SFO [1999] 2 AC 177	Importance of preserving confidentiality of material disclosed in criminal proceedings.	Cited for public interest protecting integrity of criminal investigations against collateral use.
Chanel Ltd v FW Woolworth & Co Ltd [1981] 1 WLR 485	Principle against raising repeat issues without significant change in circumstances.	Applied to refuse repeated applications concerning same documents absent new circumstances.
Possfund Custodian Trustee Ltd v McGrigor Donald [1996] 1 WLR 1351	Similar principle on abuse of process and repeated applications.	Supported refusal of repeated applications.
Ryan v Friction Dynamics Ltd [2001] C.P. Rep. 75	Abuse of process in repeated litigation applications.	Supported refusal of repeated applications.
Re Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 472	Australian authority on collateral use; no presumption against permission once good reason shown.	Cited by Appellant but court rejected broad submission that no presumption against permission exists.
Crest Homes Plc v Marks & Others [1987] 1 AC 829	Consideration of injustice to disclosing party in collateral use applications.	Court doubted rigid rule; injustice is a factor in balancing exercise.
Cobra Golf Inc v. Rata [1996] FSR 819	Significant injustice as strong reason to refuse permission.	Considered as part of balancing exercise.
Halcon v Shell [1979] RPC 97	Role of originating court in assessing collateral use applications.	Court held it can consider likely utility of documents in target proceedings.
AG v Guardian Newspapers [1990] 1 AC 109	Public interest in open scrutiny and criticism of government workings.	Considered in balancing public interest in disclosure.
Lilly Icos Ltd v Pfizer Ltd (No 2) [2002] EWCA Civ 2	Principles governing CPR 31.22(1)(a) and (2); open justice and public access to documents.	Applied in considering public domain application and re-imposition of protection.
SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498	Public access to court documents and open justice principles.	Supported principles applied under CPR 31.22(1)(a).
Barings v Coopers & Lybrands [2000] 1 WLR 2353	Similar principles of open justice and document disclosure.	Referenced with Lilly Icos and Connaught.
NAB v Serco Limited [2014] EWHC 1225 (QB)	Application of CPR 31.22(1)(a) and (2) concerning public hearings.	Considered in relation to marginal references to documents in public hearings.
Eurasian Natural Resources Corp Ltd v Dechert LLP [2014] EWHC 3389 (Ch)	Application of open justice principles to document disclosure.	Referenced in public domain application.
Home Office v Harman [1983] 1 AC 280	Role of documents in trial scrutiny and public interest.	Considered in balancing confidentiality against open justice.
A v BBC [2014] 2 WLR 1243	General principle of open justice subject to exceptions.	Supported principle of transparency and accountability.
Scott v Scott [1913] AC 417	Open justice as a fundamental principle subject to necessity exceptions.	Quoted for the primacy of open justice and burden on parties seeking exceptions.
R (Guardian News & Media Ltd) v City of Westminster Magistrates' Court [2013] QB 618	Open justice and rule of law; transparency of legal process.	Emphasized importance of publicity as the "soul of justice".
Kennedy v Information Commissioner [2014] 2 WLR 808	Constitutional principle of accountability and transparency.	Supported presumption in favour of disclosure absent compelling reasons.
Wierzbicki v Poland (2004) 38 EHRR 805	Article 6 ECHR and right to fair trial including adducing evidence.	Supported argument that restrictions on evidence must be consistent with fair trial.
McGinley and Egan v United Kingdom (1998) 27 EHRR 1	Denial of access to documents in possession of State can violate fair hearing rights.	Referenced to support fair trial rights in disclosure context.

Court's Reasoning and Analysis

The Court approached the applications by first recognizing the urgent nature of the requests and the procedural history of previous refusals upheld on appeal. It acknowledged the general legal framework under CPR 31.22 and CPR 32.12, emphasizing that collateral use of disclosed documents is generally prohibited unless special circumstances justify an exception.

The Court identified key principles from the Court of Appeal and other authorities establishing that the burden lies on the applicant to show special circumstances constituting a cogent reason for collateral use, and that strong public interests exist in preserving the integrity of criminal investigations and protecting confidentiality.

The Court critically examined the applications individually:

• 78/15 Documents Applications: The Court found no significant change in circumstances from previous applications and noted the documents were generated by the SFO as part of a criminal investigation. The claimed relevance and probative value were substantially the same as in prior unsuccessful applications. The Court emphasized the risk of unfairness to the SFO and refused permission.
• Witness Statements Application: The extracts sought contained references to numerous SFO disclosure documents. The Court noted witnesses had declined consent for collateral use and emphasized the public interest in encouraging voluntary cooperation by public servants. The application was refused due to limited utility and risk of unfairness.
• Company B Documents Application: Although not generated by the SFO, these documents contained confidential records of private communications with the SFO and investigative methods. The Court found limited utility and risk of injustice to the non-party Company B, refusing permission.
• Company B Reports Application: These reports were produced by Company B for the JLs and not by the SFO. The JLs are parties to the Foreign Proceedings and can respond to allegations. However, the Court found that the reports had limited utility, the application was late, and the reports had been previously refused for disclosure. The Court rejected the strike-out application and refused permission on the merits.
• Public Domain Application: The Court accepted that certain documents had been referred to in public hearings, thereby engaging CPR 31.22(1)(a). However, the SFO sought to re-impose restrictions under CPR 31.22(2). The Court applied principles emphasizing the fundamental importance of open justice but balanced this against the strong public interest in preserving confidentiality of criminal investigations. Given the marginal nature of the references and limited utility of the documents in the Foreign Proceedings, the Court granted the SFO's application to prohibit collateral use of these documents despite their public reference.

The Court also addressed submissions regarding abuse of process, late service of evidence, and the multiplicity of applications. While expressing concern about these procedural issues, the Court declined to dismiss the applications on that basis alone, preferring to decide on the merits.

Throughout, the Court emphasized the balancing exercise required, weighing the public interest in open justice and fair trial rights against the need to protect the integrity of criminal investigations and confidentiality of disclosed material.

Holding and Implications

The Court REFUSED the applications by Company A under CPR 31.22(1)(b) and CPR 32.12(2)(b) for permission to use disclosed documents and witness statement extracts for collateral purposes in the Foreign Proceedings.

The Court GRANTED the SFO's application under CPR 31.22(2) to prohibit the collateral use of certain documents that had been referred to in public hearings, thereby restoring their protection.

This decision means that Company A is not permitted to use the disclosed documents or witness statements for the collateral purpose of the Foreign Proceedings, maintaining the confidentiality protections typically afforded to materials from criminal investigations and third-party disclosures. The ruling does not establish new precedent but applies established principles emphasizing the need for special circumstances to overcome the strong public interest in confidentiality and the integrity of criminal investigations. The Court requested the parties to prepare a draft order reflecting these determinations.