In Bank Mellat v HM Treasury [2015] EWCA Civ 1052, the Court of Appeal ordered some disclosure in the bank’s challenge against its asset freeze. This is notable because the case is being conducted through a so-called “closed material procedure”.

Bank Mellat had sought to challenge two statutory instruments that targeted all Iranian banks: the Financial Restrictions (Iran) Order 2011 and the Financial Restrictions (Iran) Order 2012, both created under UK counterterrorism legislation.

On 23 October 2015, the Court of Appeal held that there had to be sufficient disclosure to enable the appellant “to give sufficient instructions not merely to deny but to refute (in so far as possible) the essential allegations against it”. Without such disclosure, the requirements of a fair trial under Article 6, European Convention on Human Rights, as established in Secretary of State for the Home Department v AF and another [2009] UKHL 28 (“AF (No.3)”), would not be met.

It was held that there is “no doubt that the AF (No.3) standard of disclosure would apply” in an asset freezing case, since “restrictions on the freedom to do business or to engage in financial transactions can be as serious for a bank as restrictions on personal liberty for an individual”.