The National Crime Agency made an application to the court at the request of the US Department of Justice to obtain a prohibition order against the appellants. This request was referred to in a witness statement and the appellants sought inspection of the request on the basis that it had been "mentioned in a witness statement" (see CPR r31.14). At first instance, inspection was refused and the Court of Appeal has now held as follows:
- The request had been "mentioned" in the witness statement. It could not be said that the witness statement had done no more than describe a transaction from which the existence of a document could be inferred.
- Although a party should ordinarily have the right to inspect a document mentioned in a witness statement, that right is not unqualified: "it is instead subject to CPR rules based limits", such as proportionality. Confidentiality is a relevant factor which can be taken into account. However, the judge was wrong to conclude that there is a free-standing "necessity" test: it is just a relevant factor whether inspection is "necessary to dispose fairly" of the case.
- The central issue in this case was the balance to be struck between the appellants' right to inspect and the NCA/DOJ's claim to confidentiality of state to state communications. The Court of Appeal concluded that inspection ought to be permitted. There is no inference that letters of request should not be disclosable. Although they are confidential, assistance is being sought by the court and so the matter has moved "beyond a communication between the executive branches of the friendly foreign state and of the UK". The Court of Appeal concluded that: "it seems to me that any party requesting this Court's assistance, could reasonably be taken to accept that it must abide by the procedural regime of the Court. A foreign Central Authority is not in any different position… Absent good reason for doing so, invoking the Court's jurisdiction but declining to make available the materials necessary for establishing the claim advanced is neither an attractive nor a tenable position. This can come as no surprise; … the Requesting Party may have to choose between giving disclosure or abandoning the Request".
However, the Court of Appeal agreed that that a redacted version of the request should be provided.