Rawlinson & Hunter Trustees SA in its capacity as trustee of the Tchenguiz Discretionary Trust (Claimant) Director of the Serious Fraud Office (Defendant) Grant Thornton UK LLP and Others (Respondents)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eder |
| Judgment Date | 10 February 2015 |
| Neutral Citation | [2015] EWHC 266 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2013 Folio 1450 |
| Date | 10 February 2015 |
[2015] EWHC 266 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Eder
Case No: 2013 Folio 1450
Lord Pannick QC, Miss Catherine NewmanQC, Mr Mark CunninghamQC andMr Jonathan Allcock (instructed by Stephenson Harwood) for the Claimant
Mr James Segan (instructed by Treasury Solicitor) for the Defendant
Mr Simon Salzedo QC and Mr James MacDonald (instructed by Simmons & Simmons LLP) for the First Respondent
Mr David Brownbill QC and Mr Daniel Warents (instructed by Chadbourne & Parke (London) LLP) for the Second Respondent
Hearing dates: 22–23, 26–27 January and 6 February 2015
Introduction
The main claims in these proceedings were settled in July 2014. However, there are now before the Court a number of applications which require determination, the main focus of which is a series of applications made pursuant to CPR 31.22 (and also, in part CPR 32.12) by one of the claimants, Rawlinson and Hunter Trustees SA in its capacity as trustee of the Tchenguiz Discretionary Trust ("R&H") for permission to use certain documents disclosed and extracts of witness statements served in the main proceedings in a pending appeal against a decision of LB Chadwick delivered on 6 December 2013 in separate proceedings in Guernsey which is now due to be heard very shortly i.e. on 16 February 2015 (the "Guernsey Proceedings"). (I should mention that originally two of these applications were advanced on behalf of Mr Robert Tchenguiz ("RT") personally and there was some confusion in that regard. However, it does not appear that anything turns on this point; and I say no more about it.)
The determination of these applications is therefore very urgent; and given the urgency, I propose to deal as succinctly as possible with the main issues which arise and to state my conclusions (and reasons) as briefly as possible.
The applications
There were (at least originally) four main applications advanced by R&H for permission to use in the Guernsey Proceedings the following categories of documents viz:
i) 78 documents disclosed by the SFO in the main proceedings. At a late stage and shortly before the present hearing, R&H sought to widen the application to bolt on a further 15 documents. However, at the request of the SFO, I adjourned R&H's application for permission to do so for reasons which I gave in a separate judgment and which I do not repeat. In the event, I heard that application subsequently. I deal with this below. I shall refer to these applications as the "78 documents application" and the "15 documents application" respectively or, as the case may be, the "78/15 documents applications".
ii) Certain extracts from 6 witness statements served by the SFO in the main proceedings from Mr Randall, Mr Rogers, Mr Brinkworth, Mr Harvey, Mr Middleton and Mr Thorpe (the "witness statements application").
iii) 14 documents obtained from Grant Thornton (UK) LLP ("GT") by way of third party disclosure pursuant to CPR 31.17 in the main proceedings (the "GT documents application").
iv) 6 reports prepared by GT on the instructions of Mr Stephen Akers and Mr Mark MacDonald (the "JLs") in their capacities as joint liquidators to Glenella Properties Ltd, Thorson Investments Ltd, Eliza Ltd and Oscatello Ltd (the "GT reports application"). I should mention that at the beginning of the present hearing, Mr Brownbill QC on behalf of the JLs applied to strike out this application on the basis of abuse of process. However, after hearing argument, I informed the parties of my decision viz that I rejected such strike out application. My reasons for such conclusion are set out briefly below.
Shortly before the present hearing, R&H issued a further application (the "public domain application" or, for short, the "PD application") for, in effect, a declaration that certain documents (including some forming part of the 78 documents application) were already in the "public domain" by virtue of the exception in CPR 31.22(1)(a) and were therefore not caught by any prohibition against collateral use. I heard this application at a separate hearing following the main hearing of the applications referred to above. I deal with that application later in this Judgment.
The 78 and 15 documents applications, the GT documents application and the GT reports application were, in essence, applications for permission pursuant to subparagraph (b) of CPR 31.22(1) which provides as follows:
"(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –
(a) the document has been read to or by the Court, or referred to, at a hearing which has been held in public;
(b) the Court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree."
The witness statements application was advanced under sub-paragraph (2)(b) of CPR 32.12 which is entitled "Use of witness statements for other purposes" and provides as follows:
"(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.
(2) Paragraph (1) does not apply if and to the extent that–
(a) the witness gives consent in writing to some other use of it;
(b) the Court gives permission for some other use; or
(c) the witness statement has been put in evidence at a hearing held in public."
However, given that (i) the relevant extracts of the witness statements referred in many respects to information contained in documents which formed part of the SFO's disclosure and (ii) it is trite law that the prohibition of collateral use in CPR 31.22 applies not only to the use of documents provided on disclosure but also to the information contained therein, it was common ground that both CPR 32.12 and 31.22 were, in effect, engaged in the context of the witness statements application. It was also common ground that the principles applicable with regard to the witness statements application are broadly similar to the other applications made solely under CPR 31.22(1)(b).
Although these applications have to be considered on their own merits, they raise similar issues to those which I had to consider in two previous applications in these proceedings. In the event, I refused both such applications for reasons which appear in my Judgments which are reported as Tchenguiz v SFO [2014] EWHC 2597 (Comm) (the "22 documents Judgment") and Tchenguiz v SFO [2014] EWHC 4199 (Comm) (the "57 documents Judgment"). The 22 documents Judgment was upheld by the Court of Appeal: see [2014] EWCA Civ 1409 (the "CA Judgment"). An application for permission to appeal against my decision in relation to the 57 documents application was refused by the Court of Appeal on 2 February 2015.
Abuse of Process
Mr Segan, Mr Salzedo QC and Mr Brownbill QC all submitted that the applications should be struck out or rejected in whole or in part on the basis that they were an abuse of process. To the extent that such submissions were founded on grounds specific to particular applications, I deal with them in that context. However, it is convenient to address certain of their more general submissions which overlapped to some extent.
Starting with Mr Segan, he submitted that the SFO wished to put on record its concerns with regard to the manner in which these applications had been advanced on behalf of RT/R&H. In that context, he made three main points which I address briefly in a slightly different order. First, he submitted that the position concerning two opinions by Mr Lodder QC initially served and relied upon by R&H was deeply unsatisfactory. I agree. However, in the event, Mr Allcock on behalf of R&H indicated that he would not seek to rely upon them; and I propose to say no more about this at this stage.
Mr Segan also complained that the SFO had been swamped with vast quantities of material at a very late stage notwithstanding the timetable set by the Court and that the conduct of RT/R&H in connection with the listing of the present hearing had caused considerable prejudice to the SFO. In broad terms, Mr Salzedo and Mr Brownbill made similar complaints. Without going into all the detail, two points stand out. First, the present applications were not brought on previously as part of one or other of the previous applications as, in my view, they could and should have been. The result has been that the Court has had to deal with the applications on a piece-meal and fragmentary basis which, in turn, has led to additional Court time being used to the considerable detriment of other Court users. Second, although I ordered R&H to serve its evidence in the context of the applications against the SFO by 9 December 2014 and although R&H did serve some evidence by that date, it thereafter issued various additional "bolt-on" applications and served additional "evidence" and other material at a late stage both in the context of those applications and also the other applications – some of which only shortly before the commencement of the present hearing. In my view, such conduct is unacceptable in modern commercial litigation. Although Mr Segan did not, as I understood, go so far as to submit that such conduct amounted to an abuse of process so far as the applications against the SFO were concerned so as to justify striking out...
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