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.

Background

The claimant property developer brought a claim in the English High Court for misrepresentation against the defendant bank in connection with the setting of LIBOR rates used as a reference rate in a number of swaps entered into between the parties.

The bank had entered into a Deferred Prosecution Agreement (DPA) with the US Department of Justice (DoJ) in relation to the bank's admitted misconduct relating to Japanese Yen and Swiss Franc LIBOR rates. A confidential attachment to the DPA listed other LIBOR rates which were the subject of ongoing criminal investigation by the DoJ.

The DPA stated that the attachment would be held in confidence by the parties to the agreement and would not be included in the public filing of the DPA or be made available to the public unless the DoJ agreed to its disclosure. In the course of a hearing before the US District Court relating to the criminal proceedings, the US Judge ordered that the confidential attachment would remain in his custody, under seal, pending resolution of the matter.

It was accepted that the confidential attachment fell within the scope of the bank's disclosure obligation in the English litigation. The bank applied for an order that it was not required to permit inspection of the attachment, due to its obligations of confidentiality to the DoJ and the risk of being in criminal contempt if it breached the order of the US District Court.

Decision

The High Court (Mr Justice Birss) ordered inspection of the confidential attachment. It also directed that, until further order, neither party could refer to the attachment in open court without permission obtained in advance.

The judge reiterated that the mere fact that a document is confidential is not a ground for withholding inspection, though it may justify making case management orders dealing with the status of the document in the proceedings.

He also referred to the Court of Appeal's decision in Health Secretary v Servier Laboratories [2013] EWCA Civ 1234 (see post) which confirmed that, even if there is a risk of prosecution under foreign law if a document were to be disclosed, the English court retains jurisdiction to make such an order. The court is however entitled to take into account the risk of prosecution by a foreign authority when exercising its discretion on whether to make an order.

In exercising his discretion in the present application, the judge considered expert evidence on US law and concluded that, even if inspection would breach the seal order (and he was not convinced that it would), the risk of the bank being found to be in criminal contempt was low. The bank had made a firm objection to inspection before the English court, and the US courts would adopt a balancing approach in considering a finding of contempt.

Further, the judge's order would not take effect for four weeks. That was designed to allow the bank to take any steps it wished before the US court. In the judge's view, if the bank applied to the US court, that court would be likely to permit the bank to fulfil its obligations to the English court, given the procedural safeguards inherent in CPR 31.22(1) (which provides that a document disclosed in proceedings may be used only for the purposes of those proceedings, subject to limited exceptions) and his order that the document may not be referred to in open court without permission.

Although the court recognised the DoJ's desire to keep the attachment out of the public domain pending its investigations, that stance was based on its general policy and not on a specific risk of prejudice or particular concerns in this case. Further, the attachment was potentially of real significance to the present action, and would be extremely useful in determining the scope of any further disclosure (which was likely to be extremely time consuming due to the volume of documentation).

Comment

This decision follows the approach of the Court of Appeal in the Servier Laboratories case, which confirmed that the English court has jurisdiction to make procedural orders in cases before it regardless of whether compliance might expose a party to the risk of prosecution under a foreign law. Whether the court will exercise its discretion to make an order depends on the particular circumstances of the case, including the court's assessment of the likelihood of prosecution under the relevant foreign law. The document's significance (or otherwise) to the proceedings is also likely to be a very important factor.

It is also interesting to compare the approach in HTC Corporation v Nokia Corporation [2013] EWHC B16 (Ch), where the High Court refused to order disclosure of documents held by a party's solicitors under the terms of a protective order issued by a US court (see post). An important distinction appears to be the fact that in HTC the documents were not in the possession of the defendant, only its solicitors, and the defendant was not able to compel the solicitors to deal with the documents otherwise than in accordance with the US court order. That meant the documents were not in the defendant's control, and the court had no jurisdiction to require disclosure. However, the judge in that case added that, as a matter of discretion, he would not have made an order which effectively varied a US court order possibly to the prejudice of the third party whose confidential information it was and who had had no real opportunity to address the court.