Property Alliance Group Ltd v The Royal Bank of Scotland Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Birss |
| Judgment Date | 19 February 2015 |
| Neutral Citation | [2015] EWHC 322 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC 2013 000459 |
| Date | 19 February 2015 |
[2015] EWHC 322 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Birss
Case No: HC 2013 000459
Tim Lord QC, Adam Cloherty and Kyle Lawson (instructed by Cooke Young & Keidan) for the Claimant
David Railton QC and Adam Sher (instructed by Dentons) for the Defendant
Hearing dates: 11th February 2015
Until 11 th March 2015 or further order this judgment is PRIVATE
In this judgment I give the reasons for making an order at a case management hearing on 11 th February 2015 about documents which are reports produced by the defendant to the Japanese Financial Services Agency (JFSA). These proceedings and the background relevant to the making of this order are explained in another parallel judgment arising from the same hearing on 11 th February 2015, [2015] EWHC 321 (Ch). That other judgment concerned Attachment C to the Deferred Prosecution Agreement ( DPA) between the defendant bank (RBS) and the US Department of Justice. I will not repeat that background and context here.
The issues in this case involve allegations of manipulation of LIBOR by RBS. As explained in the parallel judgment, RBS was ordered to produce documents which disclose internal reports, reviews and summaries relating to the allegations of LIBOR manipulation. RBS produced a disclosure list signed by Paul de Gruchy, Senior Legal Counsel of RBS on 12 January 2015. Appendix B of the disclosure list relates to documents which RBS objects to inspection of on various grounds.
Section 4 of Appendix B of the disclosure list relates to five reports produced by the defendant to the JFSA. Necessarily neither the court nor PAG has seen these documents. However from the circumstances and their presence in the list I infer that they are reports which at least to some extent address manipulation or alleged manipulation of LIBOR by RBS staff. They may relate only to manipulation of Japanese Yen (JPY) or they may not. They may only traverse the same misconduct as that admitted by RBS in these proceedings and to the US DoJ in Attachment A to the DPA, relating to JPY and Swiss Franc (CHF) LIBOR or they may not. What is clear however is that subject to the objection to inspection, the order made by this court on 24 th November 2014 obliges RBS to disclose them because they are relevant to the issues in this case.
RBS objects to inspection of the reports by PAG or the court on the following ground: "because the Japanese Financial Services Agency has objected to inspection of these documents on the grounds that to do so would be detrimental to the regulation of financial services in Japan." By an application made on 5 th February 2015 RBS seeks an order permitting it not to provide copies for inspection or alternatively an order preventing any party referring to the documents in open court and, insofar as it is necessary to make reference to the documents, providing that the court will sit in private.
RBS' application is supported by a witness statement of its solicitor, Samuel Coulthard. Mr Coulthard's statement exhibits a copy of a letter from the JFSA dated 4 th February 2015. The letter itself asks that the letter be kept confidential save to the extent necessary for RBS to put the JFSA's objections to the English court and in a separate one page annex marked "confidential" explains the JFSA's reasons why it wishes the reports to be kept confidential. Mr Coulthard also describes the provisions in Japanese law (an act called the Act on Access to Information Held by Administrative Organs) which he submits covers these reports and indicates why, given the JFSA object to inspection of the reports, RBS would then be in conflict with Japanese law if it was ordered to produce the documents for inspection. Mr Coulthard asks on his client's behalf that the hearing of the application itself should be in private, given the JFSA's request.
PAG submits that RBS should be ordered to produce the document for inspection without restriction and does not accept that the hearing should be in private. I decided to hear the application in private at least at this stage. It was simply not practical to deal with the application in any other way given the request of the JFSA.
The legal principles applicable to this application are the same as the ones referred to in the parallel judgment dated 11 th February 2015. In brief summary:
i) Confidentiality itself is no bar to disclosure or inspection: Science Research Council v Nassé [1980] AC 1028.
ii) In relation to a document which is or ought to be disclosed, when disclosure or...
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