Robert Tchenguiz v Serious Fraud Office & Ors (Dec 2014)
The strong public interest in preserving the integrity of criminal investigations and in protecting those who provided information to prosecuting authorities from any wider dissemination of that information outweighed the interests of a party bringing a claim for damages against the Serious Fraud Office in their disclosure, where that claimant had failed to advance a cogent or comprehensible case as to the relevance and probative value of those documents in unrelated proceedings.
The applicant (R) applied for permission under CPR r.31.22(1)(b) to make collateral use of 57 documents disclosed to him by the respondent SFO so as to enable him to adduce those documents in a pending appeal in unrelated proceedings.
R had brought proceedings against the SFO after being the subject of a criminal investigation which had been abandoned without charges being brought against him. He sought to recover losses arising from unlawful search warrants issued by the SFO. Unrelated proceedings had been commenced in Guernsey. The parties to those proceedings included certain entities in which R had an interest as beneficiary. The SFO had disclosed documents to R in the instant action which it had previously obtained from third parties as part of its original criminal investigation as well as other documents created by the SFO. Permission had been granted for R's lawyers to give 22 documents which had been disclosed by the SFO to the lawyers instructed in the Guernsey action. The 57 documents which were the subject of the instant application included correspondence between the SFO and third parties, a large number of detailed internal notes prepared by the SFO recording discussions with third parties, and internal assessments of the criminal investigation. According to R, the documents were necessary for the third applicant trustees to be able to substantiate their intended submissions in the Guernsey action. In particular, R submitted that they showed such matters as the source and nature of the SFO's original suspicions against him and the latter's reliance on misleading information given to it by a third party which had encouraged it to continue the criminal investigation against him.
(1) There was a strong public interest in preserving the integrity of criminal investigations and in protecting those who provided information to prosecuting authorities from any wider dissemination of that information other than in the resultant prosecution. In the instant case, that public interest outweighed R's interests in disclosure, notwithstanding the continuing public interest in the workings of public authorities such as the SFO being open to scrutiny (see paras 3, 16, 18 of judgment). (2) The SFO had an independent interest in its capacity as a public prosecuting authority and was entitled to protection of all materials created in the criminal process, subject to countervailing considerations. That public interest was not removed by the abandonment of the threatened prosecution, although that was a relevant factor in the context of the overall balancing exercise (paras 19-20). (3) Many of the points which R sought to derive from the documents in issue were very similar to propositions which were said to be supported by documents in the public domain. Although such public documents might be of lesser probative value than the underlying primary documents, there did not appear to be any reason why R could not refer to any of those public documents so as to advance his case for the purposes of the intended appeal in Guernsey (para.22). (4) Under CPR r.31.22, the burden lay firmly on an applicant to demonstrate cogent reasons why the collateral use of documents should be permitted. R had failed to advance a cogent or comprehensible case as to the alleged relevance and probative value of the 57 documents in Guernsey which outweighed the strong public interest in preserving the integrity of criminal investigations. Although it was important to consider the instant application on its own merits and carry out the necessary balancing exercise specifically in that context, significant comments had been made in the Guernsey appeal proceedings relating to the limited utility of the 22 documents (paras 6, 22-24, 28). (5) There was a risk of unfairness in Guernsey, including to the SFO itself, arising from selection of the 57 documents from the 45,000 or so which had been disclosed by the SFO in the proceedings (para.29).
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11 Dec 2014
Queen's Bench Division
LTL 18/12/2014 :  EWHC 4199 (Comm)
Catherine Newman QC