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

Factual and Procedural Background

This is an appeal by the Defendant (Company A) from an order and judgment of Judge Green dated 4 August 2025 dismissing the Defendant's application to withhold certain categories of documents from disclosure unless and until foreign regulators authorised disclosure.

The proceedings were brought by 216 Plaintiffs said to represent about 1,410 funds. The Plaintiffs allege losses of about £1.5 billion arising from published information by Company A between 2007 and 2019 and rely in part on alleged misconduct disclosed in two sets of prior settlement agreements with US and UK authorities (the 2012 Settlements and the 2019 Settlements) and on allegations advanced in a qui tam action brought in the United States by a relator company (Company C). The consolidated claims include causes of action under sections 90 and 90A of the Financial Services and Markets Act 2000 (FSMA) relating to compensatory liability for misleading statements, omissions and dishonest conduct by persons discharging managerial responsibilities.

Company A is a public company listed on two exchanges (Exchange A and Exchange B) and is the parent of a global banking group whose US operations were carried on through a New York branch of Company B (the Bank's New York branch). The Bank previously entered into the 2012 Settlements (involving a substantial monetary forfeiture and admissions of past violations of US sanctions law for the period up to 2007) and the 2019 Settlements (involving further penalties and findings about breaches between 2008 and 2014). A separate relator action in the US (brought by Company C) alleged additional failures of disclosure to US authorities; that relator action was dismissed at the instance of the US Government and an appeal was later dismissed.

Company A sought an order dispensing with disclosure or permitting withholding of approximately 250 unique documents (out of an expected overall disclosure of some 50,000 documents), on the basis that disclosure would breach duties of confidentiality owed to foreign regulators and expose Company A or its Bank to criminal prosecution or civil/regulatory enforcement in foreign jurisdictions (principally the United States, and previously Singapore). After a contested two-day hearing, Judge Green refused the withholding relief and ordered disclosure of the disputed categories of documents into a confidentiality ring (with certain documents authorised for disclosure by one regulator subject to redaction and confidentiality protections). Company A appealed. The appeal was heard and dismissed; the parties thereafter settled the overall litigation but the appellate judgment was handed down.

Legal Issues Presented

1. Whether the first-instance judge erred in finding that Company A had not demonstrated a "real" or "actual" risk of criminal prosecution or regulatory/civil sanction in foreign jurisdictions if it disclosed certain regulator-related documents (including US Suspicious Activity Reports ("US SARs") or information revealing the existence/content of US SARs) pursuant to an English court order.
2. Whether the judge erred in concluding that the disputed categories of documents (the CSI Documents and the US SAR Documents) were not merely tangentially relevant or of limited probative value to the Plaintiffs' claims.
3. Whether the judge mis-exercised his discretion by failing to grant a withholding order (or otherwise restrict disclosure) on comity grounds or to give significant weight to foreign regulatory confidentiality obligations, even in the absence of an established risk of prosecution.

Arguments of the Parties

Defendant's Arguments (Company A)

• Company A argued that it owed duties of confidentiality to foreign regulators in respect of specified categories of documents and that those regulators had refused consent to disclosure; unauthorised disclosure would expose Company A and the Bank to criminal prosecution and civil/regulatory sanctions abroad.
• Company A relied on the public interest in maintaining regulatory confidentiality and on principles of comity; it submitted that, where disclosure would involve breaching foreign confidentiality duties with evident public purposes, the English court should be reluctant to order disclosure or should withhold inspection until foreign regulators consented (relying on authorities such as Abacha and Bank Mellat).
• Company A emphasised particular categories: (a) US SAR Documents (reports filed with Regulator D) and related information said to be protected by US statute and practice; and (b) other confidential supervisory information ("CSI Documents") held by Regulator B and Regulator C.
• Company A relied on expert and practitioner letters to support the asserted risks of civil or criminal penalties and argued that the judge gave insufficient weight to those risks and to the need to protect regulator–regulated communications.

Plaintiffs' Arguments

• The Plaintiffs submitted that the judge had applied the correct legal principles and that the burden lay on Company A to show a real risk of prosecution or compelling public-interest reasons to depart from the ordinary rule of disclosure.
• The Plaintiffs argued that the disputed documents were potentially highly relevant to core issues (including knowledge of senior managers, oversight and compliance failings, and what was communicated to regulators) and that relevance and probative value militated strongly in favour of disclosure subject to protective measures.
• The Plaintiffs supported the use of a lawyers-only confidentiality ring and other protective measures to protect regulator interests while allowing the court to receive the material necessary for a fair trial.

Table of Precedents Cited

Court's Reasoning and Analysis

The appellate court analysed the judge's reasoning in detail and upheld the first-instance judge's conclusions. The main elements of the court's reasoning are set out below.

1. Applicable legal framework: The court affirmed that the applicable test is that articulated in Precedent 1: the resisting party bears the burden of showing a real (actual) risk of foreign prosecution or other adverse enforcement if disclosure is ordered; the court must balance that risk against the importance of the documents to the fair disposal of the proceedings and may tailor protective measures (for example, confidentiality rings) if inspection is ordered. The court also noted established principles from Nassé that confidentiality is a relevant factor but does not automatically defeat disclosure.
2. Assessment of relevance and materiality: The judge considered the disputed categories and sub-categories of documents (communications between the Bank's New York branch and Regulator B/Regulator C; responses and drafts; compliance-monitor reports; correspondence and presentations) and concluded they were potentially of central relevance to the Plaintiffs' case on knowledge, oversight and what was said to regulators. Although Company A's lawyers described some categories as tangential, the judge (and the appellate court) considered that relevance is an evaluative exercise and that the court could not simply accept one party's assessment without seeing the documents. The appellate court found no error in the judge's evaluation that the documents were not merely peripheral.
3. Evaluation of the risk of prosecution or regulatory action: The judge analysed competing expert evidence. Company A relied on letters from its longstanding external counsel (Attorney Bourtin) and an expert who had served in the regulator that oversees SARs (Attorney Das). The Plaintiffs relied on an independent former regulator/prosecutor (Attorney Rimon). The judge preferred the independent expert's view that the prospect of criminal prosecution in circumstances where disclosure would occur pursuant to a foreign court order was remote. The judge found that the evidence relied upon by Company A concentrated more on possible civil/regulatory enforcement than on a real risk of criminal prosecution and that there was insufficient analysis of the impact of disclosure being compelled by an English court.
4. On US SARs (regulated SAR material): The judge accepted that unauthorised disclosure of US SARs or SAR information is prohibited by US law and that sanctions exist; however, the judge found that the Defendant had not demonstrated a real risk of prosecution or meaningful sanctions in the particular circumstances (historic SARs, lack of evidence of ongoing investigations, prior engagement with regulators, and the fact that disclosure would be compelled by an English court and limited to a confidentiality ring). The appellate court held that this evaluative conclusion was open to the judge and not irrational.
5. On CSI Documents more generally and comity: While Company A sought to rely on comity and alleged special weight should be given to regulatory confidentiality, the court found no legal basis for giving regulatory confidentiality inherently greater weight than other forms of confidentiality. The court observed there was little or no direct evidence from the foreign regulators explaining why disclosure would cause irreparable harm; indeed Regulator A (Singapore) had subsequently authorised disclosure of some categories subject to redaction and a confidentiality ring. The letters from Regulator B and Regulator C evidenced a nuanced approach and showed willingness to permit disclosure of some internal documents into a confidentiality ring. The judge rationally concluded that a confidentiality ring would provide sufficient protection and that withholding was not justified.
6. Approach to appellate review: The appellate court emphasised that first-instance judges perform evaluative, case-management exercises and that an appellate court should not lightly substitute its own judgment unless there is an error of law, principle or a wholly untenable factual conclusion. The appellate court read the judge's reasons as a whole and found no such error.

Holding and Implications

APPEAL DISMISSED.

Implications:

• The appellate court upheld the first-instance judge's order requiring disclosure of the disputed categories of documents (including the US SAR Documents and the CSI Documents) into a confidentiality ring tailored to protect sensitive material.
• The court confirmed the governing approach: the party seeking to withhold disclosure on the ground of foreign-law/confidentiality risks bears the burden of showing a real and substantial risk of foreign prosecution or enforcement; even where such a risk is asserted, the court must balance that risk against the importance of the documents to a fair trial and may use protective measures rather than wholesale withholding.
• The court rejected the submission that regulatory confidentiality should automatically attract special or enhanced weight as a matter of comity absent evidential support showing real and significant harm; it noted the importance of case-specific evidence from regulators where heightened weight is sought.
• The direct effect on the parties was that Company A's application to withhold the specified documents unless and until foreign regulators authorised disclosure was refused and disclosure into a confidentiality ring was ordered; there was no new binding precedent displacing the established Bank Mellat framework, but the judgment affirms its application in circumstances involving SAR material and CSI.
• After a draft of the appellate judgment was circulated, the parties settled the litigation in full; nonetheless the court handed down the judgment pursuant to settled practice for reporting of appellate decisions.