ROBERT TCHENGUIZ and Others v DIRECTOR of THE SERIOUS FRAUD OFFICE
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eder |
| Judgment Date | 16 July 2014 |
| Neutral Citation | [2014] EWHC 2379 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2012 Folio 1093 |
| Date | 16 July 2014 |
[2014] EWHC 2379 (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: 2012 Folio 1093
(in their capacities as trustee of the Tchenguiz Discretionary A Trust and the NS One Trust)
Miss CATHERINE NEWMAN QC and Mr JOHN ROBB (instructed by Stephenson Harwood) for the Claimants
Mr PUSHPINDER SAINI QC and Mr JAMES SEGAN (instructed by Slaughter & May) for the Defendant
Introduction
This is an application by the first claimant, Mr Robert Tchenguiz ("RT"), for permission to instruct a separate review team including lawyers familiar with the detail of certain discrete proceedings in Guernsey, Investec and another v Glenalla Properties Ltd and others (the "Guernsey proceedings"), in order to identify further documents disclosed by the defendant (the "SFO") in these proceedings which may be relevant to a pending appeal in the Guernsey proceedings (the "proposed course of action").
The application is made pursuant to CPR r.31.22 which provides in material part 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 relevant background can be stated shortly. The SFO is a public authority charged with the investigation and prosecution of serious fraud. In the course of the present proceedings, the SFO has given disclosure of documents to RT which it had previously obtained from third parties as part of its original criminal investigation (the "KAU01 investigation") as well as other documents created by the SFO also as part of the KAU01 investigation containing information from third parties and references relating thereto. That has been a very considerable exercise resulting, as I am told, in the SFO disclosing approximately 45,000 documents to the claimants including RT.
Miss Newman QC on behalf of RT accepts that all these documents are subject to the general prohibition in CPR r.31.22 i.e. that RT is entitled to "use" the documents disclosed only for the purpose of the present proceedings subject to the stated exceptions. However, RT now wishes to instruct his review team to consider (as a first stage) whether any of these documents might be relevant to the Guernsey proceedings.
The proposed constitution and function of the review team
The intended "review team" would consist of 3 principals (Lord Goldsmith QC, Catherine Newman QC and Paul Richardson) together with 4 associates (2 assisting Paul Richardson and 2 assisting Lord Goldsmith QC). Miss Newman also indicated that these individuals would, if necessary, be prepared to sign specific confidentiality agreements with regard to the proposed course of action. Initially, Mr Saini QC on behalf of the SFO suggested certain criticisms with regard to advice already sought and obtained from Lord Goldsmith QC. However, he subsequently made plain that he made no personal criticism of Lord Goldsmith QC. In my judgment, there is no reason to doubt that, if the proposed course of action is permitted, the review team would act with complete propriety; and I did not understand Mr Saini to suggest otherwise.
It is important to emphasise that RT does not intend, at this stage at least, immediately to use any of these documents in the Guernsey proceedings. (In passing, I should note that there is a separate pending application in this Court for permission to use 22 particular documents in the Guernsey proceedings which is now due to be heard on 21 July 2014.) Rather, as submitted by Miss Newman, the function of the review team will be solely to advise as to whether any particular document or set of documents from the SFO's disclosure has or could have a significant bearing on the outcome of the Guernsey Appeal. If so, the review team will advise that a CPR r.31.22(1)(c) request for consent or CPR r.31.22(1)(b) application for permission should be made with respect to that document or set of documents and may assist with the preparation of that application. In effect, Miss Newman submitted that the review team will carry out precisely the same work as would be carried out by RT's existing legal team if RT's existing legal team included members with the detailed understanding of the Guernsey proceedings, and with the spare capacity, to review documents and prepare CPR r.31.22(1)(b)-(c) applications or requests for these documents. As further explained in RT's 5 th witness statement, the review team will not read through all 45,000 documents disclosed by the SFO. Rather, the intention is that a 'first sift' or sample can be carried out by RT's existing legal team although it is not practicable to define at this stage precisely which documents will be passed to the review team; the process is likely to be iterative, with review team members identifying relevant lines of enquiry which can be followed up either by the review team acting on its own or in conjunction with RT's existing legal team.
In effect, the present application is therefore a precursor to a possible further application sometime in the future and, as submitted by Miss Newman, its purpose is therefore somewhat limited i.e. it is to enable RT to put himself in a position to consider and (if so advised) to make an appropriate further application under CPR r.31.22. In truth, it is satellite litigation in anticipation of possible future satellite litigation.
At one stage of Miss Newman's oral argument, I understood her to suggest that given the limited nature of the proposed course of action, RT did not in fact need any permission to carry out such exercise whether pursuant to CPR r. 31.22 or otherwise. The basis of that suggestion was that, as stated above, the purpose of the proposed course of action was no more than to enable the review team to provide advice and, if necessary, to assist in relation to a possible future application under CPR r.31.22in these proceedings; that therefore, even though the ultimate object of such possible future application was to obtain permission to use documents in the Guernsey proceedings, the present exercise did not involve the collateral use of documents; that it was therefore not caught by CPR r.31.22 at all; and that it was, in effect, ludicrous to suggest that RT needed permission to put himself in a position to make an application in these proceedings. I see very considerable force in that suggestion; and it may well be right. However, without (I hope) being overformalistic, that is not a point raised by the application notice in the present case. In particular, there is no application for a declaration that the proposed course of action is permissible in any event. On the contrary, the application is formulated and has proceeded on the basis that the proposed course of action is one which falls within CPR r.31.22; and I propose to deal with it on that basis.
The Guernsey proceedings
It is unnecessary to say much about the Guernsey proceedings. They are described in paragraph 97 of the claimants' Further Particulars of Fact. As there stated, the parties to the proceedings include certain entities in which RT has an interest as beneficiary; and the issues concern certain intercompany loans between those entities. Trial of the Guernsey proceedings took place in June 2012. LB Sir John Chadwick handed down judgment on 6 December 2013. Appeals are now pending in the Guernsey Court of Appeal. The appeal hearing was due to take place between 23–28 June 2014. In the event, RT successfully applied to intervene to such an adjournment. This adjournment was sought and granted on the basis that there were documents disclosed by the SFO in these proceedings (namely the 22 documents referred to above) which, according to RT would satisfy the Ladd v Marshall [1954] 1 W.L.R. 1489 test for the admission of fresh evidence. For the avoidance of doubt, I should make plain that RT has no general permission to intervene in the appeal. That question has been left over until a future hearing. Further, the Guernsey Court of Appeal laid down a tight procedural timetable to deal with the possible admission of such evidence in advance of the hearing now scheduled in October.
For present purposes, it is sufficient to say that I accept that the outcome of that appeal is likely to have a substantial effect on RT's rights; and that the proposed course of action may well result in the identification of further documents potentially relevant thereto and to a further application under CPR r.31.22. Indeed, I did not understand Mr Saini to suggest otherwise.
The SFO's position
The SFO opposes the application. In summary, Mr Saini submitted that RT has demonstrated no "cogent and persuasive reasons" amounting to "special circumstances" which could possibly support this Court granting permission for lawyers to review the entirety of the SFO's disclosure in this action, amounting to over 44,500 documents many of which contain confidential or private information from numerous corporate, individual and governmental third parties for the purpose of the KAU01 investigation, with a view to adducing those documents chosen by RT's lawyers in the Guernsey proceedings with which the SFO has no connection; that the application seeks to circumvent the statutory procedure, laid down in the Evidence (Proceedings in Other Jurisdictions) Act 1975 and CPR Part 34, by...
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