The appellant companies successfully sought inspection of a mutual legal assistance request from the U.S. Department of Justice to the National Crime Agency (NCA) to obtain a prohibition order from an English court on the basis that reference to that request was made in a witness statement. In ordering a redacted version of the request to be produced, the Court of Appeal decision sought to balance the right to inspect a document in proceedings and an enforcement authority’s claim to confidentiality of their investigation: Blue Holdings (1) Pte Ltd and another v National Crime Agency [2016] EWCA Civ 760.
Crime Act 2002 and Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 an enforcement authority (eg the National Crime Agency (NCA)) may obtain a prohibition order in relation to property in England and Wales, which is the subject of an external request. The High Court may make such an order if it is satisfied that it is "relevant property identified in an external request".
DOJ asks NCA for help in securing assets
The NCA applied to the English court at the request of the US Department of Justice (DOJ) to obtain a prohibition order against the appellants (the Request). The NCA sought to preserve assets valued at over GBP 100 million which the DOJ claimed had been misappropriated by General Sani Abacha, the former president of Nigeria, and his associates, pending conclusion of asset forfeiture proceedings in the United States. The order extended to assets owned by the appellant companies in England and Wales.
This Request was referred to in a witness statement filed in support of the application for the prohibition order. The appellants sought inspection of the Request pursuant to CPR 31.14 on the basis that it had been "mentioned" in a witness statement as they wished to ascertain whether the property identified in the NCA’s application for a prohibition order was indeed "relevant property identified in an external request".
The application was dismissed at first instance as the court held that the Request was a confidential communication between foreign states and inspection was not necessary for the fair disposal of the NCA’s application. The appellants appealed.
Inspection of redacted Request allowed
The Court of Appeal allowed the appeal in part, ordering disclosure and inspection of a redacted version of the Request so far as necessary to show the property identified, as:
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The Request had been "mentioned" in the witness statement. The witness statement made a number of direct illusions to the Request. One of the passages from the witness statement in question read: "The relevant property which is identified in the external request from the DOJ, and to which this application for a prohibition concerns…".
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The right of a party to inspect a document mentioned in a witness statement is not absolute. It is subject to "CPR rules based limits", such as proportionality and the court retains the discretion to refuse inspection of that document. The confidentiality of the document is a relevant factor for the court to take into account. The Court of Appeal further noted by way of example that the mere mention of a privileged document in, for example, a statement of case may not of itself lead to a loss of the privilege.
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Another relevant factor was whether disclosure of the Request was necessary for the fair disposal of the application. The Court of Appeal held that the first instance judge was incorrect to conclude that there was a free-standing "necessity" test before inspection is permitted; necessity is one of the many relevant factors.
The Court of Appeal noted that the competing balancing factors in this instance were the appellants' right to inspect the Request and the legitimate interest in the Request’s confidentiality. Accordingly, the Court sought to strike a balance by ordering disclosure of a redacted version of the Request so far as it showed the property identified.
Here, the Court noted that the existence of the Request was revealed by the commencement of proceedings and there could be no confidentiality as concerns the property identified in the Request (as opposed to details of the investigation).
The Court provided the DOJ with an opportunity to choose between giving disclosure of a redacted version of the Request or abandoning the Request altogether.
Comment
Parties to litigation should continue to be wary of the risk of losing confidentiality when making reference to confidential documents in statements of case or witness statements. Whilst there is no automatic right to disclosure of such documents, the onus will be on the party resisting disclosure to show why the general rule in favour of disclosure should not apply.
Even in the context of private state to state communications, the court was willing to order disclosure, albeit in a redacted form. This would have assisted the respondent party to determine whether the property identified in the NCA’s application matched the property identified in the Request.
