In Fiona Trust Holding Corporation & Ors v Yuri Privalov & Ors – Lawtel 26.1.07 the Commercial Court heard the second and third Defendants’ application for disclosure of documents by the Claimants in litigation alleging that the second and third Defendants, and others, had conspired to defraud the Claimants of substantial sums of money. The application was made when the Claimants applied for further freezing orders. In opposing those further order, the second and third Defendants had asserted that there was prima facie evidence that the Claimants had instigated investigations into their financial affairs, which had been conducted unlawfully and the documents of which they required disclosure related to that issue. The disclosure order sought was lengthy and detailed.
It was held that whilst it is open to the court to order disclosure at any stage in the proceedings, including for the purpose of interlocutory proceedings, it was well established under the previous procedural rules that such a power should be exercised sparingly and only for such documents as could be shown to be necessary for the fair disposal of the application. There were no reasons for concluding that a different approach was appropriate under the Civil Procedure Rules. Only in extreme cases should an application of this kind turn into a mini-trial let alone a full blown trial, but that was the danger if the orders were made. The Defendants were in any event able to deploy their argument that there had been prima facie illegal activity without the disclosure sought. Further, the evidence obtained in the investigations was not central to the Claimants' application for an enlarged freezing order against the Defendants.