UK High Court orders disclosure despite risk of prosecution for criminal contempt under US law

The High Court has ordered a party to litigation to allow the inspection of an attachment to a Deferred Prosecution Agreement entered into with the US Department of Justice in relation to the alleged manipulation of LIBOR rates, where the attachment was confidential and had been placed under seal by a US court: Property Alliance Group Ltd v Royal Bank of Scotland Plc [2015] EWHC 321 (Ch). 

The decision is a reminder that neither confidentiality nor the risk of prosecution under foreign law will, necessarily, prevent the court ordering disclosure or inspection of a document in English proceedings. However:

• The court will take into account the risk of prosecution in considering whether to make such an order. Here the court concluded that the risk was low and it was appropriate to make the order.
• Where a document is confidential, the court may make case management orders to protect that confidentiality. Here the court made a further special order that, until further order, neither party could refer to the document in open court without permission being obtained in advance.
• The court may defer its order from taking immediate effect. Here the court set a four-week period in order to give the bank the ability to take any further steps it wished to before the US courts.

Heather Rankin, an associate in our dispute resolution team, considers the decision further below. Read more about this case on Litigation Notes.