Eurasian Natural Resources Corporation Ltd v The Director of the Serious Fraud Office
| Jurisdiction | England & Wales |
| Judge | Dame Clare Moulder DBE |
| Judgment Date | 09 October 2023 |
| Neutral Citation | [2023] EWHC 2488 (Comm) |
| Court | King's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2021-000035 |
[2023] EWHC 2488 (Comm)
Dame Clare Moulder DBE
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CL-2021-000035
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Anna Boase KC, David Glen and Helen Morton (instructed by Hogan Lovells) for the Claimant
Tom Richards K.C. and Celia Rooney (instructed by Eversheds Sutherland (International) LLP) for the First and Second Defendants
Hearing dates: 19 September 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 09 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
There were three applications before the Court: the application by Eurasian Natural Resources Corporation Limited (“ENRC” or the “Claimant”) to challenge the redactions made by the First Defendant to the Byrne Report dated 11 October 2021 (the “Byrne Report”), a confidential application and a security for costs related application. The security for costs application however was resolved and does not require a determination by the Court.
The confidential application was heard in private. CPR 39.2(3)(c) permits the Court to sit in private if the hearing involves confidential information and publicity would damage that confidentiality. That application and evidence in support of it contained information which, if made public, would contravene the reporting restrictions orders made by the High Court and the Court of Appeal [redacted text]. Accordingly, the Claimant filed a redacted skeleton and the written submissions for the First and Second Defendants were contained in a confidential appendix to its skeleton argument.
In addition to this public judgment, there is a confidential judgment which refers to matters related to the reporting restrictions arising from the confidential application. Where necessary to amend parts of this judgment the redacted sections have been indicated as such.
Background
In April 2013 the SFO announced that it had launched a criminal investigation into ENRC (the “ENRC Investigation”). ENRC alleges that since then sensitive information about the ENRC Investigation has been leaked by SFO officers and staff to journalists and other third parties.
The First Defendant is the Director of the Serious Fraud Office (the “SFO”). The Second Defendant, Mr Gibson, is a former employee of the SFO and for a period from 2014 to 2018 was the Case Controller in respect of the ENRC Investigation.
The Third Defendant, Mr Puddick, is a Senior Investigator within the SFO. He was the subject of an internal misconduct investigation as to whether he had leaked confidential case information to investigative journalists. The Byrne Report is the report by Mr Byrne setting out the conclusions of his investigation, which found that there was a “case to answer” on the part of Mr Puddick in respect of suspected leaking of confidential case information in respect of the Rolls-Royce investigation carried out by the SFO.
On 24 August 2023 the SFO announced that it would not prosecute ENRC and that the ENRC Investigation had been closed.
Proceedings in this case were issued in January 2021. Cockerill J heard two case management conferences in November 2022 and February 2023.
The SFO and Mr Gibson are jointly represented and submissions on the applications now before the Court were made by Mr Richards KC on behalf of both the First and Second defendant. Reference to “the SFO's submissions” is used only for convenience in this judgment. Mr Puddick is separately represented.
Byrne Report application
On the Byrne Report application, the application by the Claimant to challenge the redactions are advanced in relation to 3 categories:
a. Public Interest Immunity (“PII”);
b. Privilege;
c. Irrelevant and confidential.
Cockerill J by her order of 11 January 2023 following the CMC directed that to the extent that the First Defendant sought to redact any part(s) of the Byrne Report by reason of public interest immunity (the “PII Redactions”), the Director of the SFO shall certify that she believes that those parts of the Byrne Report should be protected by PII. A certificate dated 19 December 2022 (the “PII Certificate”) was issued by the then Director of the SFO, Ms Osofsky.
Cockerill J further directed that to the extent the Court is required to determine whether any PII Redactions should be upheld, an order recording the Court's decision shall be served on all parties (but any confidential reasons given by the Court for its decision shall be contained in a confidential schedule that shall only be served on the First Defendant and shall not be placed on the Court file). Having considered the PII Redactions, it has not been necessary for this Court to provide confidential reasons for the decision to the SFO in addition to the reasons set out below.
The SFO has provided the Court separately with two documents which have not been provided to the Claimant: the confidential schedule to the SFO's PII certificate showing how the competing public interests have been assessed and compared (the “Confidential Schedule”) and also a version of the Byrne Report which reveals the material redacted by reason of PII but not the material redacted on other grounds.
PII Redactions
The preliminary point to note is that since the PII Certificate was filed the SFO has announced its decision not to pursue the ENRC Investigation. In its written submissions the SFO stated that the analysis will be revisited and that this exercise has begun, but the ultimate decision as to whether or not to maintain the claim for PII is properly one for the SFO's new director who is due to take up the role on 25 September 2023.
It was submitted for the SFO orally that it may be that the Claimant's challenge is rendered academic by a future decision, but that does not mean that there is not a matter which can usefully be decided at this hearing; namely, is the claim to PII, as set out in the PII Certificate, a good one.
The impact of the announcement on the PII Redactions and whether the SFO will take a different view going forward is therefore unknown. As the Court indicated at the hearing it is an unsatisfactory state of affairs for the Court to rule on an analysis which may well change. However no application was made by either party for an adjournment and the Court was of the view that it would not have been in furtherance of the Overriding Objective to adjourn the hearing, given the time that had already elapsed on this application.
Legal principles
These were said to be common ground: the test for whether PII can legitimately be asserted in respect of a document remains the 3-stage test explained by the House of Lords in R v Chief Constable of West Midlands Police, ex parte Wiley [1995] 1 AC 274:
a. Firstly, is the information in question relevant and material to an issue in the proceedings?
b. Secondly, if it is relevant and material, is there a real risk that disclosure of the information in question will cause ‘substantial harm’ to a public interest?
c. Thirdly, even where a real risk of substantial harm can legitimately be said to arise, is the public interest in withholding inspection nonetheless outweighed by the public interest in the fair administration of justice?
The correct approach when the Court is asked to rule upon an asserted claim of PII was summarised by Lord Clarke in Al Rawi v Security Service [2012] 1 AC 531, at [145]:
“ …(i) A claim for PII must be supported by a certificate signed by the appropriate minister relating to the individual documents in question… (ii) Disclosure of documents which ought otherwise to be disclosed under CPR Pt 31 may only be refused if the court concludes that the public interest which demands that the evidence be withheld outweighs the public interest in the administration of justice. (iii) In making that decision, the court may inspect the documents…This must necessarily be done in an ex parte process from which the party seeking disclosure may properly be excluded…
(iv) In making its decision, the court should consider what safeguards may be imposed to permit the disclosure of the material…”.
I also accept the submissions for the SFO that claiming PII is a duty and not a matter of discretion and that whilst the balancing of competing interests is for the Court to assess, the views set out in the PII Certificate will be given substantial weight ( R (Charles & Dunn) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 3010).
Submissions
It was submitted for the Claimant that:
a. Ms Osofsky's views about the probative value of the information are doubtful: it is not clear whether Ms Osofsky has understood the fundamental importance of this document to these proceedings.
b. Ms Osofsky's assessment of the risk of substantial harm (paragraph 11 of the PII Certificate) is dubious. There are two separate points: one is the public interest in not deterring potential human sources in future by naming sources now and, secondly, the SFO's duty to protect actual human sources from potential harm. The language of the certificate and the SFO's submissions give the impression that the SFO has made a blanket decision to redact all human source names on these grounds. What the Wiley test requires is a proportionate evaluation of each time a source is named or otherwise identified and to ask which of those two points applies? Is the risk a real one? Is the potential harm substantial? The Claimant queries whether the risks on...
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Redactions For Privilege, Irrelevance And Public Interest Immunity, And Waiver Of Privilege: High Court Provides Guidance
...and/or in a party's statements of case: Eurasian Natural Resources Corporation Ltd v the Director of the Serious Fraud Office & Ors [2023] EWHC 2488. Points of interest from the decision The court will generally take a cautious approach to exercising its discretion to inspect documents to d......