Court of Appeal decides whether documents disclosed by the SFO could be used in separate proceedings in Guernsey

Weekly Update 28/14 reported the decision by Eder J to give permission to the claimant to give documents disclosed to it by the SFO to lawyers involved in a pending appeal in separate proceedings in Guernsey (CPR r31.22 provides that a party to whom a document has been disclosed may use that document only “for the purpose of the proceedings in which it is disclosed” except if (amongst other things) the court gives permission). However, in the same case, Eder J refused the claimant permission to rely on the disclosed documents in the Guernsey appeal. The claimant appealed against that decision and the Court of Appeal has now dismissed that appeal.

The Court of Appeal emphasised the rationale for the long-established rule that documents disclosed to a party cannot be used for any collateral purpose (without the consent of the disclosing party or the court): the obligation to give disclosure is an invasion of a litigant’s right to privacy and is justified only by the public interest in ensuring that a court has all the necessary evidence and the rule promotes compliance with the disclosure obligation. Special circumstances are needed to depart from the rule and, furthermore, there is a strong public interest in preserving the integrity of criminal investigations and protecting those who provide information to prosecuting authorities from wider dissemination of that information. The liaison between the SFO and foreign authorities is inherently confidential and, as the judge held, there is a strong public interest in maintaining co-operation between foreign states in the investigation of offences with an overseas dimension.