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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Tchenguiz & Anor v Rawlinson And Hunter Trustees SA & Ors [2013] EWHC 2128 (QB) (18 July 2013) URL: http://www.bailii.org/ew/cases/EWHC/QB/2013/2128.html Cite as: [2014] 1 WLR 1476, [2013] WLR(D) 302, [2013] EWHC 2128 (QB), [2014] WLR 1476 |
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HQ12X05106, HQ13X00672 |
QUEEN'S BENCH DIVISION
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
____________________
(1) ROBERT TCHENGUIZ (2) R20 LIMITED |
Claimants in HQ12X05106 and HQ13X00672 |
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(1) RAWLINSON AND HUNTER TRUSTEES SA (2) VINCOS LIMITED (3) EURO INVESTMENTS OVERSEAS INC (4) VINCENT TCHENGUIZ (5) AMORA INVESTMENTS LIMITED |
Claimants in HQ12X05082 and HQ13X00414 |
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- and - |
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DIRECTOR OF THE SERIOUS FRAUD OFFICE |
Applicant/Defendant to all claims |
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- and – |
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DEUTSCHE BANK AG |
Third Party Respondent |
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Mr Joe Smouha QC, Mr Alex Bailin QC and Ms Alison Macdonald (instructed by Shearman & Sterling (London) LLP) for the RT Claimants
Mr Dominic Dowley QC, Mr James Eadie QC and Mr Simon Colton (instructed by The Treasury Solicitor) for the Defendant
Mr Michael Beloff QC and Mr Tom Smith (instructed by Freshfields Bruckhaus Deringer) for The Third Party Respondent
Hearing dates: 10 and 11 July 2013
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Crown Copyright ©
Introduction
Criminal Justice Act 1987
"The Director may by notice in writing require the person under investigation or any other person to produce [at such place as may be specified in the notice and either forthwith or at such time as may be so specified], any specified documents which appear to the Director to relate to any matter relevant to the investigation or any documents of a specified class which appear to him so to relate; and—
(a) if any such documents are produced, the Director may—
(i) take copies or extracts from them;
(ii) require the person producing them to provide an explanation of any of them;
(b) if any such documents are not produced, the Director may require the person who was required to produce them to state, to the best of his knowledge and belief, where they are."
"Any person who without reasonable excuse fails to comply with a requirement imposed on him under this section shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both."
"(1) Where any information [to which section 18 of the Commissioners for Revenue and Customs Act 2005 would apply but for section 18(2)] has been disclosed by [Her Majesty's Revenue and Customs] to any member of the Serious Fraud Office for the purposes of any prosecution of [an offence relating to a former Inland Revenue matter], that information may be disclosed by any member of the Serious Fraud Office—
(a) for the purposes of any prosecution of which that Office has the conduct
(b) to the [Revenue and Customs Prosecutions Office] for the purposes of any prosecution of an offence relating to a former Inland Revenue matter; and
(c) to the Director of Public Prosecutions for Northern Ireland for the purposes of any prosecution of [an offence relating to a former Inland Revenue matter],
but not otherwise.
…
(3) Where any information is subject to an obligation of secrecy imposed by or under any enactment other than an enactment contained in the Taxes Management Act 1970, the obligation shall not have effect to prohibit the disclosure of that information to any person in his capacity as a member of the Serious Fraud Office but any information disclosed by virtue of this subsection may only be disclosed by a member of the Serious Fraud Office for the purposes of any prosecution in England and Wales, Northern Ireland or elsewhere and may only be disclosed by such a member if he is designated by the Director for the purposes of this subsection."
"Subject to subsections (1) and (3) above and to any provision of an agreement for the supply of information which restricts the disclosure of the information supplied, information obtained by any person in his capacity as a member of the Serious Fraud Office may be disclosed by any member of that Office designated by the Director for the purposes of this subsection –
(a) to any government department or Northern Ireland department or other authority or body discharging its functions on behalf of the Crown (including the Crown in right of Her Majesty's Government in Northern Ireland);
(b) to any competent authority;
(c) for the purposes of any criminal investigation or criminal proceedings, whether in the United Kingdom or elsewhere, and
(d) for the purposes of assisting any public or other authority for the time being designated for the purposes of this paragraph by an order made by the Secretary of State to discharge any functions which are specified in the order."
No express absolute bar
Strong beast
Prior authorities
"So, in my judgment, where the police or any other public authority use compulsory powers to obtain information and documents from the citizen, the relationship between them is such that the information or documents are received solely for those purposes for which the power was conferred and equity imposes on the public authority a duty not to disclose them to third parties, save under order of the court …" (emphasis added).
To my mind, the last words "save under order of the court" necessarily recognise that the duty of confidence which exists in such circumstances is subject to any order of the court – at least in the absence of clear statutory wording to the contrary. (This passage was considered by Warren J in Standard Life Assurance Ltd v Topland Co Ltd [2010] EWHC 1781 (Ch), [2011] 1 WLR 2162 ("Standard Life v Topland") where he said at para 88 that it was not entirely clear to him how the involvement of the court at that stage is juridically justified. However, the circumstances of the present case perhaps provide an example of what the Vice-Chancellor in Marcel might have had in mind.) I fully recognise that certain of the views expressed by the Vice-Chancellor were disapproved in the Court of Appeal and the order he made was varied on appeal. I also recognise that Marcel was not concerned with the CJA but rather with the Police and Criminal Evidence Act 1984 and, as submitted by Mr Beloff, the latter contains no direct analogue to s3(5) of the CJA. However, it seems to me that on this particular point, the views expressed by all three judges in the Court of Appeal are of general import and point strongly against the existence here of any absolute bar viz.
"That said, however, the powers the police have to use seized documents for the purposes indicated by the Vice-Chancellor do not, in my judgment, absolve the police from the duty which police officers share with every other citizen to obey the orders of the courts in civil proceedings and in particular to obey subpoenas duly served upon them". (Dillon LJ at p256H-257A)
"The statutory powers given to the police are plainly coupled with a public law duty. The precise extent of the duty is, I think, difficult to define in general terms beyond saying that the powers must be exercised only in the public interest and with due regard to the rights of individuals. In the context of the seizure and retention of documents, I would hold that the public law duty is combined with a private law duty of confidentiality towards the owner of the documents. The private law duty appears to me, as it did to the Vice-Chancellor, to be of the same character as that which formed the basis of the House of Lords decision in Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109. It arises from the relationship between the parties. It matters not, to my mind, that in this instance, so far as the owners of the documents are concerned, the confidence is unwillingly imparted. My disagreement with the Vice-Chancellor, as I have indicated, stems from my belief that the duty of confidence in circumstances such as those of the present case is outweighed by the requirements of a subpoena". (Nolan LJ at p261A-C)
"With great respect to the Vice-Chancellor, who did not have the benefit of the full submissions made on behalf of the Commissioner of Police of the Metropolis which we have enjoyed, I for my part think that he misdirected himself in principle in regarding his discretion as fettered by such rigid restrictions. The result is that the discretion falls to be exercised by this court anew. I of course accept that there is a public interest in ensuring a proper observance by the police of the obligation of confidentiality in respect of documents seized under relevant powers. It is the existence of this obligation which, in my judgment, alone gives rise to a cause of action at the suit of the person from whom the documents were seized in cases where the police use or propose to use them otherwise than for police purposes at a time when they are still properly retaining them. I cannot, however, see why that public interest should in all cases and in all circumstances outweigh the public interest in ensuring a full and fair trial on full evidence in cases where the police have seized documents under Part II of the Act of 1984 and wish to use them for the purpose of assisting the supposed victim of an alleged crime to obtain a fair trial of a claim for damages in a civil case on full evidence. Everything must depend on the circumstances of the particular case." (Sir Christopher Slade at p265D-G)
Other legislative provisions
"Except as provided by the subsequent provisions of this Part of this Act — (a) no person who under or for the purposes of this Act receives information relating to the business or other affairs of any person; and (b) no person who obtains any such information directly or indirectly from a person who has received it as aforesaid, shall disclose the information without the consent of the person to whom it relates and (if different) the person from whom it was received as aforesaid."
At [1998] Ch p103B-G, Laddie J summarises and then deals with one of the arguments advanced that s82 of the 1987 Act does not constitute an absolute bar:
"Mr. Malek argued that the Act contained no express fetter on the court's power to order discovery in civil proceedings and that, had that been intended, clear words would have been used by the draftsman. He drew my attention to section 10 of the Contempt of Court Act 1981, where such clear wording is used. He said that there was no need for any such fetter. The court was well able to balance the interests of the persons whose commercial information was at risk of disclosure and the needs of the parties to civil litigation. Furthermore he suggested that the current climate is for more, not less, disclosure. He also drew an analogy with the common law, where private obligations of confidence were overridden by the obligation to give discovery.
"Absent relevant authority, I would be inclined against Mr. Malek's argument. The analogy with the common law is a false one. The court will order discovery of confidential material because the private rights and interests of the parties cannot be allowed to frustrate the public interest perceived to exist in full exchange of documents relevant to court proceedings. But even that interest is subordinate to the public policy considerations which justify the embargo on disclosure of privileged communications. Where the legislature has determined that it is in the public interest that certain types of information should not be disclosed on pain of punishment save in defined and limited circumstances, the court should be wary of adding to the list of exceptions. Here the primary purpose of the prohibition in section 82 is to protect persons whose commercial information comes into the hands of the bank. This is subject to certain defined exceptions, contained in sections 83 to 85. Those include, for example, the right to disclose information for the purpose of any criminal proceedings whether under the Act or otherwise (section 85(1)(a)) or proceedings under section 7 or 8 of the Company Directors Disqualification Act 1986 (section 85(1)(e)). It is therefore clear that the question of the extent to which the embargoed material could be used in legal proceedings had been the subject of consideration by the draftsman. If discovery in civil proceedings was to be exempt from the effect of section 82(1), one would have expected the draftsman to have included an express provision to that effect."" (emphasis added)
Mr Beloff's counter arguments
"Many people give assistance to the police and other investigatory agencies, either voluntarily or under compulsion, without coming within the category of informers whose identity can be concealed on grounds of public interest. They will be moved or obliged to give the information because they or the law consider that the interests of justice so require. They might naturally accept that the interests of justice may in the end require the publication of the information or at any rate its disclosure to the accused for the purposes of enabling him to conduct his defence. But there seems to me no reason why the law should not encourage their assistance by offering them the assurance that, subject to these overriding requirements, their privacy and confidentiality will be respected." (emphasis added)
"Upon the question whether such a rule of law should now be judicially declared, I am of the clear opinion that it should not. Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant's affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done. In so far as that must necessarily involve a certain degree of publicity being given to private documents, the result has to be accepted as part of the price of achieving justice."
Conclusion