Disclosure of third-party information to claimants in civil proceedings
Scope of litigation privilege


The High Court recently issued two decisions concerning disclosure of information related to Serious Fraud Office (SFO) investigations.

Disclosure of third-party information to claimants in civil proceedings

Giving judgment in an application brought by the SFO in its ongoing litigation with the Tchenguiz brothers, Justice Eder of the High Court ruled that there was no general bar that could be read into the Criminal Justice Act 1987 preventing the SFO from making disclosure of material obtained as part of its criminal investigation to a party to civil proceedings. The SFO has therefore been given the green light to hand over any such material which its own review determines to be disclosable under the usual civil disclosure rules.

The third parties that had provided the documents to the SFO argued that the Criminal Justice Act contained an implicit requirement that documents provided to the SFO by third parties not be disclosed in civil proceedings such as these. The third parties expected the documents to remain with the SFO, or at most to be used as evidence in future criminal proceedings only. Section 3(5) of the Criminal Justice Act expressly allows for the use of such documents in criminal proceedings, but there is no similar provision dealing with their use in civil proceedings.

This ruling may require that recipients of Section 2 Criminal Justice Act notices consider seeking undertakings from the SFO limiting the use of the material to the criminal proceedings. Such undertakings are commonplace when the SFO seeks evidence from overseas.

Scope of litigation privilege

The court granted an application made by the Tchenguiz brothers seeking disclosure of five reports prepared by Grant Thornton as liquidator of Oscatello Investments Ltd. These reports were relied on by the SFO when obtaining its ill-fated search warrants.

The court considered whether any of the documents attracted litigation privilege (advice privilege not being available to documents prepared by accountants). Given that litigation had not been commenced at the time, the question was whether the dominant purpose of the documents was to provide advice with regards to litigation that was reasonably in prospect. On the facts, the court found that the liquidators could not assert such privilege.

While this decision does not change the law on litigation privilege or the dominant purpose test, it does provide a helpful reminder that the bar to establishing privilege over such documents is a high one, and that the courts will look closely not only at the contents, but also at the history and circumstances of any documents when determining whether they may attract privilege.

For further information on this topic please contact Kathleen Harris at Arnold & Porter LLP by telephone (+44 20 7786 6100), fax (+44 20 7786 6299) or email ([email protected]).