Robert Tchenguiz and Another v Grant Thornton UK LLP and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Knowles |
| Judgment Date | 22 February 2017 |
| Neutral Citation | [2017] EWHC 310 (Comm) |
| Docket Number | Case No: CL-2015-000610 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 22 February 2017 |
[2017] EWHC 310 (Comm)
Mr Justice Knowles CBE
Case No: CL-2015-000610
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Hollander QC and John Robb (instructed by Stephenson Harwood LLP) for the Claimants
Adrian Beltrami QC, James MacDonaldandAndrew McIntyre (instructed by Simmons & Simmons LLP) for the First, Second and Third Defendants
Jeremy Goldring QC and Tom Gentleman (instructed by Travers Smith LLP) for the Fifth Defendant
Hearing dates: 10 Feb 2017
Introduction
The current proceedings include allegations by the Claimants of conspiracy. The sums claimed are substantial, the reputational implications are considerable, and at least some aspects of the proceedings are complex.
The collapse of Kaupthing Bank gave rise to a large volume of litigation in this and other jurisdictions. Documents were disclosed and witness statements served in the course of that litigation and are in the possession or control of one or more Defendants to these current proceedings.
Some will likely be relevant in the current proceedings. However they are subject to what have been termed the collateral use protections imposed when they were disclosed and served in other litigation. Some can be separated from other documents but, given the volume and the way in which they are held, others realistically cannot.
Disclosure
The cost and complexity of the disclosure of documents in large-scale commercial litigation continues to attract attention and thought. As a result of the major review undertaken by Sir Rupert Jackson the Civil Procedure Rules now provide, by CPR 31.5(7), a calibrated "menu" of forms of order that can be made in relation to disclosure. This allows disclosure to be tailored to the case or issue in the case. It is a signal development, but awareness and use of it needs to increase so that the opportunities it offers can be made the most of.
The overriding objective, at the apex of the reforms led by Lord Woolf, is now found in other parts of the world too. It guides disclosure as it guides the rest of the CPR. Thus the selection from the "menu" at CPR 31.5(7) is to be made "having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly". And strides continue to be made in relation to how the disclosure that is ordered, including disclosure of electronic documents, can best be carried out: see further CPR 31.5(8) and (9). But again, more could be made of the opportunities here.
For all the challenges just summarised, "[f]ew if any common lawyers would doubt the importance of documentary discovery [disclosure] in achieving the fair disposal and trial of civil actions". Lord Bingham (as Bingham LJ) so observed in Davies v Eli Lilly & Co and Others [1987] 1 WLR 428 at 445D, itself also a piece of large-scale litigation. Lord Donaldson (as Sir John Donaldson MR) described the right of discovery available in litigation in England & Wales as part of what enabled the court to achieve "real justice between opposing parties" (in the same case, at 431H). Lord Bingham (as Sir Thomas Bingham MR) went on to identify the promotion of the administration of justice as the underlying principle ( Process Development Ltd v Hogg [1996] FSR 45, 52). Rose and Hobhouse LJJ agreed, and the principle continues to be referenced: see for example IG Index v Cloete [2015] ICR 254; [2014] EWCA 1128 at [28] by Christopher Clarke LJ, with whom Barling J and Arden LJ agreed.
These fundamentals have not dimmed: disclosure exists as a feature of litigation because "there is a public interest in ensuring that all relevant evidence is provided to the court" in litigation ( Tchenguiz v SFO [2014] EWCA 1409 at [56] per Jackson LJ, with whom Sharp and Vos LJJ agreed).
Collateral use protections
As the obligation to give disclosure serves the public interest, it is important "to promote compliance" with it ( Tchenguiz v SFO (above) at [56] per Jackson LJ). At the same time it is important to recognise that it is "an invasion of the litigant's right to privacy and confidentiality" ( Tchenguiz v SFO (above) at [56] per Jackson LJ). For these reasons the Court has controlled the purpose for which the party receiving disclosure may use the documents disclosed unless and until they come into a public hearing.
Collateral use protections in relation to disclosed documents are imposed by CPR 31.22. Witness statements are subject to similar collateral use protections under CPR 32.12. The collateral use protections are in these terms, in CPR 31.22 and 32.12:
"31.22(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 –
the document has been read to or by the court, or referred to, at a hearing which has been held in public;
the court gives permission; or
the party who disclosed the document and the person to whom the document belongs agree.
…
32.12(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."
The common law implied an undertaking, to the court, not to use a disclosed document for a purpose other than for the purpose of the proceedings in which it was disclosed. Before that undertaking came to be implied, Bray spoke of the court requiring an express undertaking as a condition of granting an order for production of documents (Bray on Discovery, 1 st edition (1884) at 238, referred to in Matthews and Malek, Disclosure, 5 th edn at 1.01).
In SmithKline Beecham plc v Generics (UK) Ltd [2003] EWCA Civ 1109 at [28–29] Aldous LJ agreed with a submission that CPR 31.22 introduced a "complete code" replacing the implied undertaking. Notwithstanding, in other recent appellate authority the implied undertaking is treated as still current, albeit "now contained in CPR 31.22" ( Tchenguiz v SFO (above) at [56] and [66(i)] per Jackson LJ). The question of the common law implying an undertaking in tribunal proceedings where the rules do not provide in terms as do the CPR was recently addressed in IG Index v Cloete (above) at [28].
Practicalities in the present proceedings
In the present proceedings it is not practical, at least at this stage, for agreement to be sought from the party disclosing each document in the other litigation and from the person to whom each such document belongs (and for consent to be sought from the person giving each witness statement in the other litigation). This conclusion as to what is practical follows conscientious testing by the parties. It also reflects the fact that for electronic searches to make a worthwhile contribution they will need to run across some data pools that cannot reliably be separated out first.
The Defendants ask the Court to decide whether it is a collateral use for a party in their position to review documents and witness statements for relevance (step (a)), to list that material in order to give disclosure to the Claimants (step (b)), and to provide that material to the Claimants for inspection (step (c)).
All parties also need to know whether it is a collateral use for them to inspect (review) the documents and witness statements provided on inspection with a view to a party deciding whether it actually wishes to rely on or otherwise actively make use of particular documents or witness statements in advancing its case or meeting the case against it in these current proceedings (step (d)). If any of steps (a) to (d) is a collateral use then permission is sought for that use.
Case management arrangements ("the forward case management arrangements") have been discussed that would enable agreement to be sought after step (d). In this way they can be confined to those relevant documents which a party to these proceedings wishes, from an informed position, actually to rely on or otherwise actively make use of in advancing its case...
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