Whether letter of request could compel the disclosure of confidential information


The claimant obtained an order from the English court following a Letter of Request from the New York court. The order required the production of certain documents and the examination of certain witnesses. The issue in this case was whether the defendant should be required to identify individuals who had provided it with information on a confidential basis.

It is a well-established principle that confidentiality, in and of itself, is not a reason for refusing to accede to a request from the foreign court. The court must undertake a balancing exercise, weighing up the public interest in preserving confidentiality and the public interest in the English court assisting the foreign court.

Whether or not the defendant would be able to recruit or engage individuals to give them information on which they depend in future was not a sufficient ground for refusing the request. However, the court was entitled to take account of the "truism" that even in a democratic society, "whistleblowers may be castigated for speaking out and suffer prejudice to themselves or their families". Of key importance in this case was the fact that the information being sought (ie the identities of the sources) was of only peripheral importance to the US proceedings. It would not be a sufficient answer, either, that the information being sought would be subject to a Protective Order: " It is only if the breach of confidence can be justified and disclosure should be ordered in principle, that the Court goes on to consider whether the information or documents should be disclosed to a limited class of people". Accordingly, the defendant was under no obligation to reveal any information that would identify the individual sources.