[co-author: Aisling Billington]
In Various Claimants v Standard Chartered plc [2025] EWCA Civ 1581, the English Court of Appeal considered when a party is entitled to withhold disclosure on the basis that documents are subject to foreign regulatory confidentiality or may expose a party to foreign criminal or regulatory sanction (on the facts, in the US). This case is of significance to all international businesses subject to regulation in more than one country.
The Court confirmed that withholding disclosure is exceptional and that most concerns can be addressed by a confidentiality ring, a court‑approved arrangement in English litigation that restricts access to particularly sensitive documents or information to a limited group of named individuals, unless the resisting party demonstrates a real, evidenced risk of foreign sanction and minimal relevance.
Background to the Application
Standard Chartered (the Bank) was subject to a group claim pursuant to sections 90 and 90A of the Financial Services and Markets Act 2000 (“FSMA”) for £1.5 billion by over 200 claimants alleging that the Bank’s published information between 2007 and 2019 was misleading based upon sanctions related misconduct and subsequent regulatory settlements in 2012 and 2019.
During the proceedings, the Bank applied to withhold around 250 documents from disclosure, being a mix of:
- Confidential Supervisory Information (CSI) generated through supervisory interactions with the Federal Reserve Board and the New York Department of Financial Services; and
- US Suspicious Activity Reports (SARs) and related information, disclosure of which is prohibited under the US Bank Secrecy Act.
The Bank had sought consent to disclose the documents but the US regulators involved either refused consent or did not respond. It therefore argued that disclosure of these documents in English proceedings risked exposing it to criminal prosecution or regulatory sanction overseas.
Key Takeaways from the Judgment
- The resisting party must demonstrate a real risk of prosecution or sanction, not merely a theoretical risk or that disclosure would contravene foreign law. In assessing this risk, absence of prior prosecutions is highly relevant and civil or regulatory action carries less weight than criminal liability, particularly where protective orders such as confidentiality rings can mitigate any potential harm. In the words of the Court, “the burden of persuasion is a substantial one” (see Lord Justice Miles at paragraph 115).
- There is no special or elevated protection for foreign regulatory confidentiality over and above private law obligations. The US regulators’ refusal to authorise disclosure did not create an automatic presumption against inspection in English proceedings. Comity cuts both ways.
- Confidentiality rings remain the Court’s preferred tool and are themselves an exceptional derogation from open justice, but they are often the complete answer to foreign confidentiality concerns, enabling necessary disclosure while minimising dissemination.
- The Court will always be guided by the purpose of disclosure in English litigation. Relevance remains essential.
Conclusion
The message is clear: foreign regulatory confidentiality is not a shield against disclosure in English litigation without compelling, evidence-based justification. In practice, parties should expect English courts to favor disclosure managed by confidentiality rings, not wholesale withholding, when foreign regulatory issues are in play.
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