Summary

A court order requiring the destruction of hard-copy and electronic confidential documents held by relevant persons in a confidentiality club was amended to allow compliance with regulatory obligations to retain certain information. An undertaking given by each relevant person was sufficient to protect the information held on their personal mobile devices, apart from a code document which revealed the real names of people or companies referred to in the documents.

Facts

The court was required to consider applications to amend the terms of a confidentiality club order.

The claimant had settled its proceedings against Societe Generale SA and its affiliates, the first to fourth defendants, in respect of an alleged fraudulent and corrupt scheme involving the payment of US$58.4 million by those defendants to the fifth defendant. The fifth defendant had disclosed the names of over 50 individuals who had received part of those sums, including person B, to those within a confidentiality club on the grounds that wider disclosure would expose them, and their families and property in Libya to violence. Confidential material could only be communicated between relevant persons, such as the parties' solicitors, by means of a secure system. The court ordered that after the proceedings concluded the parties receiving confidential information had to ensure that all hard and electronic copies be destroyed. All relevant persons had undertaken not to disclose confidential information unless the disclosing party consented. When the order had been made it had been expected that there would be 20 relevant persons and that the documentation would be about 124 pages. Since then person B had given his disclosure of 1100 pages of documents through the confidentiality club and there were over 300 relevant persons. Amendments were sought to the order to ensure compliance with regulatory obligations, particularly in the light of a notice from the Serious Fraud Office requiring production of some of the confidential information, failure to comply with which constituted a criminal offence in the absence of a reasonable excuse. The parties agreed amendments relating to retention of documents, but disagreed about how to deal with documents stored by relevant persons on ordinary devices such as mobile phones and laptops.

The claimant argued that the undertaking was sufficient to protect the confidential information stored on ordinary devices and that to identify the confidential information would be a burdensome and lengthy exercise. The fifth defendant and person B argued that portable devices were susceptible to loss or being disposed of and suggested that a relevant person make reasonable endeavours to identify documents relevant to the case, create a back-up copy to be retained by a relevant solicitor and that the documents on devices be deleted.

Held

The increase in the number of documents covered by the confidentiality club beyond that envisaged when the order had been made justified looking again at the simple and clear obligation that confidential documents be destroyed. Although attempts had initially been made not to refer to confidential information in emails, once person B had given his disclosure it had become impossible not to refer to confidential documents. As back-up copies of the documents were to be retained, the proposals by the fifth defendant and person B would not eliminate the risk of material escaping, although the risk would be reduced if the material was retained on a more limited number of devices. The relevant people who had given an undertaking were all professional people who could be relied on to take special care of their devices in the light of the confidentiality club. Not all of them were within the jurisdiction, but by giving the undertaking they had submitted to the jurisdiction. The undertaking would be sufficient protection given a proposed amendment to the order which drew specific attention to the need to ensure that portable devices were not left where there was a risk of them being taken by unauthorised persons. Further, the exercise of identifying documents would be sufficiently difficult and burdensome that it was not appropriate to require that to be done. The exception was a code document, which revealed the real names of people or companies referred to in the documents. It was reasonable to expect a relevant person to search for copies of the code document, forward it to the receiving party's solicitors and delete any copies on their devices.

Applications granted