Persons Identified in Schedule 1 v Standard Chartered Plc

Hearing dates: 30 – 31 July 2025

Approved Judgment

Monday, 04 August 2025

Introduction

This is my oral judgment being delivered at 2 p.m. on Monday, 4 August 2025, following the fifth CMC in these proceedings held on 30 and 31 July 2025, which was last Wednesday and Thursday. I thought it better that the parties had my judgment sooner rather than later, given the start of the summer vacation.

I am the assigned judge for these proceedings. The CMC was dominated by argument on two applications brought by the Defendant, Standard Chartered PLC, this time represented by Mr Richard Handyside KC, Mr Rupert Allen KC and Mr Dominic Kennelly. The two applications are:

(1) Dispensation Application dated 13 June 2025, seeking a variation of the Court's disclosure orders to permit the Defendant to withhold certain documents from inspection because it says that it is subject to strict duties of confidence owed by the Defendant to foreign regulators in the US and Singapore and, if it was ordered to disclose such documents, would be at real risk of criminal prosecution or other serious regulatory sanction;

(2) Confidentiality Ring Application, seeking to disclose certain documents into a specific confidentiality ring.

There are also some further case management directions that the parties were seeking from the Court but which I am pleased to say were agreed between the parties, and so I need to say nothing more about them.

The Claimants, who are 217 in number and are said to represent some 1,410 funds, were investors in the Defendant, and they bring their claims against the Defendant pursuant to ss.90 and 90A of and Sch.10A to the Financial Services and Markets Act 2000. The claim is worth approximately £1.5 billion. I have set out the background in numerous previous judgments, including most recently a strikeout application in respect of what are called the “Common Reliance Claims” and my judgment on that is reported at [2025] EWHC 698 (Ch), although that judgment is now going to the Court of Appeal pursuant to permission granted by Zacaroli LJ on the 9 July 2025. I will not, therefore, set out in this judgment any of the background to the substantive case.

Mr Shail Patel KC, with Mr William Harman, represented the Claimants at the CMC. The Claimants opposed both applications, although they proposed an alternative solution to the Dispensation Application, which is to order disclosure but into a confidentiality ring. They say that the risk of criminal prosecution or civil enforcement action, if this happens, is remote in the extreme and this provides a fair balance that will ensure that all relevant material is available to the Claimants and the Court so that the issues can fairly be tried next year.

A very extensive disclosure exercise has been carried out by the Defendant and its lawyers. This is described in the witness statements of Mr Rupert Lewis of Herbert Smith Freehills Kramer LLP, the Defendant's solicitors. They have collected many millions of documents, but they anticipate, after having conducted several layers of review, that those documents will be whittled down to about 50,000 relevant documents, including duplicates, that will be disclosed. They have spent well over £40 million so far on disclosure.

It was always anticipated that there may be issues with foreign law restrictions on disclosure, in particular in relation to the Defendant's regulators and customers throughout the world. Accordingly, those documents that might be subject to such restrictions were left to the last tranche of disclosure in order to give the Defendant more time to work out its position in relation to them and, if possible, to get the consent of the regulatory authorities to their disclosure in these proceedings. It has managed to resolve quite a few such issues, including by making an application to the UAE Courts, but there remain issues with the US and Singapore regulators as I will explain.

In fact, there have been serious developments in the last two or three weeks, well after the application was issued, and unfortunately only notified to the Claimants quite late in the day, through the reply evidence that was served on behalf of the Defendant on Wednesday 23 July, shortly before skeleton arguments were due to be exchanged. The core point is that the majority of the documents in respect of which dispensation was being asked for can now be disclosed into a confidentiality ring. There is a dispute about who should be in the confidentiality ring but at least the principle as to disclosure of certain such documents has been resolved. There still remains, however, documents in some of the original categories that the Defendant considers cannot be disclosed without real risk of serious action being taken by its foreign regulators, so the principle does need to be considered. But at least the Claimants will get to see the majority of the documents, albeit within the restrictions of the confidentiality ring.

Mr Patel complained about the lateness of all of this and that the Defendant and its lawyers should have been progressing their negotiations with the respective regulators far earlier. But we are where we are and I need to decide whether there is any real justification for the remaining documents, which have been deemed relevant by the Defendant's lawyers, to remain undisclosed, which would, of course, be an exceptional order to make.

Categories of Documents

The Dispensation Application concerns three categories of documents:

(1) Documents containing Confidential Supervisory Information, (“ CSI”) and I will call these “the CSI Documents”, of the Board of Governors of the Federal Reserve Bank and the Federal Reserve Bank of New York (“ FRB”), and/or the New York Department of Financial Services (“ NYDFS”).

(2) US Suspicious Activity Reports (“ US SARs”), or communications or other documents containing information that may reveal the existence and content of US SARs (“ US SAR Information”), filed with the US Department of the Treasury's Financial Crimes Enforcement Network (“ FinCEN”). It is agreed that the US SARs and the US SAR Information also constitutes CSI.

(3) Regulatory communications between Standard Chartered Bank, Singapore Branch (“ SCBSG”), and the Monetary Authority of Singapore (“ MAS”) (together “ MAS Communications”), and written inspection reports provided by MAS to SCBSG, including other documents referring to or summarising such reports (“ MAS Reports”) (together with the MAS Communications, the “ MAS Documents”).

The Defendant wants to withhold these categories of documents from disclosure unless and until it receives authorisation from the relevant regulators to allow disclosure and inspection of them. The Defendant says the following in broad outline:

(1) It owes strict duties of confidence under foreign law to the relevant regulators in relation to the content of these categories of documents (and, in the case of the CSI Documents, such documents are the property of the US regulators as a matter of US law);

(2) In each case, the relevant regulators have refused its request for permission to disclose these documents in these proceedings;

(3) The Defendant would thus be exposed to the real risk of criminal prosecution and other serious regulatory sanctions if it were to disclose them in these proceedings, particularly given that such disclosure would be made in the face of an instruction from the relevant regulators that they cannot be disclosed. This risk would arise even if disclosure was made into a “lawyers only” confidentiality ring;

(4) The number of affected documents is now fewer than 250, excluding duplicates or near duplicates, which the Defendant says is a small number both in absolute terms and relative to the total number that the Defendant has disclosed or will disclose in these proceedings; and

(5) The affected documents are, by their nature, of limited relevance to the key issues in dispute in these proceedings; and, in any case, they are likely to be of little additional probative value over and above other documents contained in the Defendant's disclosure.

The Claimants say that they potentially could not get a fair trial without access to these documents. They say that the burden is on the Defendant to justify non-disclosure and, in the balancing between the risk of an unfair trial and the risk of criminal prosecution and/or civil enforcement action if the documents are disclosed, the Court should come down on the side of disclosure. This is consistent, they say, with the recent authorities in this area. They also complain about the way the Defendant has gone about this whole process and more particularly as to the lack of explanation as to the contents of the documents, considered relevant by the Defendant, otherwise there would be no need for disclosure at all. But that makes it difficult to assess how useful or probative they might be to the Claimants' case. The Defendant seeks to suggest that the documents are just about relevant or “tangentially relevant”, as it prefers to say.

The Defendant is, of course, under a duty to protect the confidentiality of its regulator's documentation and processes and to act in accordance with the law and the authorisations granted...