ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
MR JUSTICE OPENSHAW
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE STANLEY BURNTON
SIR ROBIN JACOB
| SERIOUS ORGANISED CRIME AGENCY
|- and -
|(1) HAKAN YAMAN NAMLI
|(2) TOPINVEST HOLDINGS INTERNATIONAL LTD
Michael Beloff QC and Miss Leona Powell (instructed by SOCA Legal Department) for the Respondent
Hearing date : Wednesday 9 November 2011
Crown Copyright ©
Lord Justice Stanley Burnton :
"(2) To be weighed further in the balance against disclosure is the concern about the potential risks associated with dissemination of material which might have been provided to the Claimant on an intelligence-only basis by third parties. As an intelligence-led organisation, disclosure of intelligence based material potentially against the wishes of the providers of that intelligence runs the risk of inhibiting and impeding the effective carrying out of the Claimant's statutory functions in the future by the drying up of important sources. Further, given the Claimant's powers to disseminate such material where appropriate to other organisations, it could also potentially impact adversely upon such other organisations' efforts in crime prevention, detection, investigation, and prosecution for similar reasons.
(3) The alternative to such a course would be for the Claimant to consider whether to make a claim for Public Interest Immunity in respect of this material without notice to the defendants. The making of such a claim, however, is no small matter nor lightly to be undertaken, and would put the Claimant to considerable expense, both in management time (since any PII claim must be carefully considered and authorised at the highest level of responsibility) and in legal costs. It would also, most likely, require a Judge to consider detailed evidence including the relevant material itself. A PII claim is of course a very important exercise, involving delicate assessment of competing public interests, where a Government agency or department is in possession of documents which would be helpful to a defendant or unhelpful to the agency or department, but it is, in my respectful view, pointless, or at the very least disproportionate, where the material is unhelpful to the defendants and is not relied upon by the Claimant in any event."
"(19) Police and other law enforcement agencies should be aware that SARs may be used in civil proceedings. With the exception of cash forfeiture proceedings in the Magistrates' court the use of SARs in civil proceedings is that each party has to disclose the past or present existence of (a) the documents on which he relies and (b) the documents which adversely affect his or another party's case. These documents may then be inspected by the other side. However, in some circumstances a party can apply for an order allowing him to withhold disclosure on the ground 'that disclosure would damage the public interest' (rule 31.9). The court has to weigh the public interest in the administration of justice and the Article 6 right to a fair trial against the public interest in the proper functioning of the public service, including that of law enforcement agencies (which may also raise ECHR rights, e.g. the Articles 2 and 8 rights to life and respect for private life, in the case of informers).
(2) In cases of civil recovery proceedings under the Proceeds of Crime Act 2002, the Assets Recovery Agency recognises the difficulties that might arise if the identity of the person making the disclosure were to be revealed. The Agency will take all possible steps to protect the identity of the person in such circumstances and will follow the guidance as closely as possible in relation to notifying and discussion with the disclosing agency."
"All members foster the widest possible cooperation and exchange of information with the other Egmont Group FIUs on the basis of reciprocity or mutual agreement and following the basic rules established in the Principles for Information Exchange:
free exchange of information for purposes of analysis at FIU level;
no dissemination or use of the information for any other purpose without prior consent of the providing FIU; and
protection of the confidentiality of the information."
The relevant provisions of the CPR
"(1) An order to give disclosure is an order to give standard disclosure unless the court directs otherwise.
(2) The court may dispense with or limit standard disclosure.
(3) The parties may agree in writing to dispense with or to limit standard disclosure.
(The court may make an order requiring standard disclosure under rule 28.3 which deals with directions in relation to cases on the fast track and under rule 29.2 which deals with case management in relation to cases on the multi-track)"
"Standard disclosure requires a party to disclose only –
(a) the documents on which he relies; and
(b) the documents which –
(i) adversely affect his own case;
(ii) adversely affect another party's case; or
(iii) support another party's case; and
(c) the documents which he is required to disclose by a relevant practice direction."
"(1) A party to whom a document has been disclosed has a right to inspect that document except where –
(a) the document is no longer in the control of the party who disclosed it;
(b) the party disclosing the document has a right or a duty to withhold inspection of it; or
(c) paragraph (2) applies.
(Rule 31.8 sets out when a document is in the control of a party)
(Rule 31.19 sets out the procedure for claiming a right or duty to withhold inspection)
(2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) –
(a) he is not required to permit inspection of documents within that category or class; but
(b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.
(Rule 31.6 provides for standard disclosure)
(Rule 31.10 makes provision for a disclosure statement)
(Rule 31.12 provides for a party to apply for an order for specific inspection of documents)"
"(1) A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.
(2) Unless the court orders otherwise, an order of the court under paragraph (1) –
(a) must not be served on any other person; and
(b) must not be open to inspection by any person.
(3) A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document, must state in writing –
(a) that he has such a right or duty; and
(b) the grounds on which he claims that right or duty.
(4) The statement referred to in paragraph (3) must be made –
(a) in the list in which the document is disclosed; or
(b) if there is no list, to the person wishing to inspect the document.
(5) A party may apply to the court to decide whether a claim made under paragraph (3) should be upheld.
(6) For the purpose of deciding an application under paragraph (1) (application to withhold disclosure) or paragraph (3) (claim to withhold inspection) the court may –
(a) require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and
(b) invite any person, whether or not a party, to make representations.
(7) An application under paragraph (1) or paragraph (5) must be supported by evidence.
(8) This Part does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest."
"A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission."
"A power of the court under these Rules to make an order includes a power to vary or revoke the order."
The parties' contentions
(1) CPR Part 31.6(b)(ii) is restricted to documents that adversely affect the case of a party other than the disclosing party against another party. It makes no sense to impose an obligation on a party to disclose documents that do not adversely affect its own case, do not advance the case of the opposing party, and only adversely affect the case of its opponent, if the disclosing party does not wish to rely on those documents. A purposive interpretation of that paragraph should be applied with that result.
(2) The Court had jurisdiction under Part 31.5 to limit SOCA's obligation of disclosure, and should do so, if necessary under the power granted by CPR Part 3.1(7).
(3) It would be disproportionate to require it to seek an order under CPR Part 31.19 permitting it to withhold disclosure of documents on which it did not wish to rely in the proceedings where non-disclosure would not prejudice the defendants' case or cause any unfairness to it.
(1) The obligation of disclosure in Part 31.6(b)(ii) is unqualified, and includes documents that adversely affect an opponent's case, even if there are only two parties to the proceedings.
(2) The power under Part 31.5(2) to limit standard disclosure is only exercisable when the order for disclosure is made.
(3) The power of the Court to vary or to revoke an order is exercisable in limited circumstances, as held by this Court in Collier v Williams  EWCA Civ 20,  1 WLR 1945, approving the statement of Patten J (as he then was) in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen  EWHC 1740 (Ch). None of those circumstances existed in this case.
(4) In any event, the order sought by SOCA involved side-stepping the constitutional principles established in Conway v Rimmer  AC 910 that form the basis of Part 36.19. Such an order, if granted, would circumvent the important safeguards in that provision.
The judgment below
"Parties to give disclosure of documents that (i) he relies upon; (ii) adversely affect his own case; (iii) support another party's case and (iv) documents he is required to disclose by any relevant practice direction, by list and category, …"
The contentions before us
The scope of Part 31.6(b)(ii)
The powers conferred by Part 31.5(2) and Part 3.1(7)
"It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ."
"We indorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under CPR 3.1(7)."
"15 There is scant authority upon r 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. Neuberger J said as much in Customs & Excise v Anchor Foods (No 3)  EWHC 834 (Ch). So did Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen  EWHC 1740 (Ch). His general approach was approved by this court, in the context of case management decisions, in Collier v Williams  EWCA Civ 20,  1 All ER 991,  1 WLR 1945. I agree that in its terms the rule is not expressly confined to procedural orders. Like Patten J in Ager-Hanssen I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. I am however in no doubt that CPR 3.1(7) cannot bear the weight which Mr Grime's argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist."
CPR Part 31.19
"(3) The alternative for such a course would be for the Claimant to consider whether to make a claim for Public Interest Immunity in respect of this material without notice to the Defendants. The making of such a claim, however, is no small matter nor lightly to be undertaken and would put the Claimant to considerable expense, both in management time (since any PII claim must be carefully considered and authorised at the highest level of responsibility) and in legal costs. It would also, most likely, require a Judge to consider detailed evidence including the relevant material itself. A PII claim is of course a very important exercise, involving delicate assessment of competing public interests, where a Government agency or department is in possession of documents which would be helpful to a defendant or unhelpful to the agency or department; but it is, in my respectful view, pointless, or at the very least, disproportionate, where the material is unhelpful to the Defendants and is not relied upon by the Claimant in any event.
(4) Further, if the Order for standard disclosure was not varied in relation to the material in question, the claimant would be obliged prior to making any such PII application, to conduct a risk assessment in relation to each single item of material and each single provider of that material. This is likely to involve contacting the disclosing person or organisation, consulting with them as to risks and assessing the capability of any relevant criminal organisation. In relation to material from foreign sources, this is also likely to involve contacting the foreign state's authorities and awaiting their process of assessing risk to the providers of such information. Again, it is, in my respectful view, at the very least disproportionate to conduct such an exercise where the material is unhelpful to the Defendants."
Sir Robin Jacob
Lord Justice Carnwath: