England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
MR JUSTICE EDER
No.2013 Folios 1450 & 1451

		Royal Courts of Justice Strand, London, WC2A 2LL
		2 March 2016

Lord Justice David Richards:

1. This is a renewed oral application for permission to appeal against orders made by Eder J on 10 February and 1 April 2015.
2. The appellant is Rawlinson & Hunter Trustees SA, in its capacity as trustee of a Guernsey based discretionary trust established for the benefit of Mr Robert Tchenguiz and members of his family. Previous applications in these proceedings have been made by Mr Tchenguiz himself and one or more companies associated with him. For convenience in this judgment, I shall simply refer to all such Tchenguiz parties as "the appellant".
3. By the first order, the judge dismissed applications made by the appellant, seeking permission pursuant to CPR 31.22(1)(b) and 32.12(2)(b), to make use in proceedings in Guernsey of certain documents and extracts from certain witness statements, disclosed or filed in English proceedings. He also made an order on the application of the respondent, the director of the Serious Fraud Office (the SFO), pursuant to CPR 31.22(2) restricting the use of certain documents which had been referred to in proceedings in open court.
4. By the second order, the judge ordered that if the appellant proposed to make any use of a total of approximately 550 documents disclosed by the SFO in the English proceedings or any information derived from those documents, on the ground that they had been read or referred to at hearings held in public, it should first provide the SFO's solicitors with 14 clear days notice in writing of such proposed use.
5. For a summary of the complex background to the present application, reference should be made to the judgment of Jackson LJ in Tchenguiz v The Director of the Serious Fraud Office [2014] EWCA Civ 1409 at [2] to [46] and [49] and to the judgment of Longmore LJ in Tchenguiz v The Director of the Serious Fraud Office [2015] EWCA Civ 50 at [3] to [5].
6. On the assumption that those judgments are read, all I need to say by way of background for present purposes is as follows. Following the financial crisis in 2008 and, in particular, the collapse of Kaupthing Bank, the SFO commenced an investigation into the business activities of Robert Tchenguiz and his brother Vincent. They were arrested in March 2011 and the SFO obtained and executed search warrants of their premises. The Tchenguiz brothers challenged the search warrants in judicial review proceedings and in a judgment given on 31 July 2012, the Divisional Court quashed some or all of the search warrants. In the meantime, in June 2012, the SFO had discontinued its criminal investigation against Vincent Tchenguiz. In October 2012, the SFO discontinued its investigation against Robert Tchenguiz.
7. The Tchenguiz brothers brought proceedings (the English proceedings) for damages against the SFO, arising out of the discontinued criminal investigations, alleging misfeasance in public office and malicious prosecution.The proceedings were listed in the Commercial Court and assigned to Eder J for case management. The claim was settled on 30 July 2014, on terms that the SFO agreed to pay a total of £4.5 million plus costs to the Tchenguiz brothers and their associated claimants.
8. By that time there had been extensive disclosure of documents, involving the disclosure of some 45,000 documents by the SFO, and the exchange of witness statements.
9. Meanwhile, proceedings had been commenced in Guernsey, arising out of a complex series of transactions carried out in 2007 in connection with the establishment in Guernsey of the discretionary trust for the benefit of Robert Tchenguiz and members of his family. Very significant sums were involved and, in particular, issues arose as to the liability of the original trustees of the settlement.
10. The Guernsey proceedings came on for trial before Sir John Chadwick, sitting as a lieutenant bailiff, in June 2012. In his judgment, given in December 2013, Sir John Chadwick held that the original trustee was liable to two companies on loans totalling over £143 million and was liable in restitution to another company in the sum of approximately £39.4 million and that the trustee was entitled to be indemnified from the trust assets in respect of these liabilities. He rejected the case advanced by the new trustee, the present appellant, that the original trustee had acted unreasonably or in a grossly negligent manner and he held that it was, therefore, not prevented from recovering an indemnity from the trust assets.
11. The appellant lodged an appeal against the order of Sir John Chadwick with the Court of Appeal of Guernsey. Thereafter it made a number of applications for permission to use in the Guernsey proceedings and, in particular, on the appeal in those proceedings, documents disclosed by the SFO in the English proceedings. The present application relates to the third, fourth and fifth such applications.
12. In considering the present application, it is helpful to refer briefly to the earlier applications and their disposal. The first application was made in June 2014 and related to 22 documents which concerned or arose out of the SFO's enquiries. There was one feature of that application which was absent in the subsequent applications, because the documents arose out of a request by the SFO to the Guernsey authorities for assistance under the Crime (International Cooperation) Act 2003 and a specific public interest was thereby engaged.
13. Nonetheless, there is a good deal of common ground. Eder J made clear that an application pursuant to CPR 31.22 requires a balancing exercise, balancing the interests of the party who has disclosed the documents in proceedings, with the interests of the other party receiving the documents to use them for some collateral purpose: see paragraph 23 of his judgment. He referred to the authorities which established that it was necessary for the party seeking permission to show "cogent and persuasive reasons amounting to special circumstances, so as to persuade the court to grant the requisite permission."
14. He bore very much in mind the strong public interest in discovering the truth but against that, there was the very weighty consideration that the documents contained "information relating to a criminal investigation carried out by the SFO": see paragraph 29. He concluded that permission to use the documents should not be given on a balance of the competing considerations. His judgment was upheld by the Court of Appeal.
15. The grounds of appeal summarised by Jackson LJ in paragraph 52 of his judgment were in six subparagraphs, four of which are echoed in the present application and were as follows:

"1. The judge failed properly to explain why there was a strong public interest in protecting these particular documents from wider use. In fact there is none. The grant of permission under rule 31.22 would not cause prejudice to the Guernsey authorities or the SFO.

3. The judge should have dealt with the documents individually, seeing which ones could be the subject of permission rather than dismissing RT's application outright.

4. The judge failed properly to carry out the balancing exercise or to give adequate reasons for his decision.

5. The judge was wrong to have regard to potential unfairness to other parties in the Guernsey proceedings."

16. Having reviewed the authorities, Jackson LJ identified the general principles which emerged from them, in paragraph 66 as follows:

"1. The collateral purpose rule now contained in CPR 31.22 exists for sound and long established policy reasons. The court will only grant permission under rule 31.22(1)(b) if there are special circumstances which constitute a cogent reason for permitting collateral use."

I can pass over 2, which was particular to that appeal:

"3. There is a strong public interest in facilitating the just resolution of civil litigation. Whether that public interest warrants releasing a party from the collateral purpose rule depends upon the particular circumstances of the case. These circumstances require careful examination. There are decisions going both ways in the authorities cited above.

4. There is a strong public interest in preserving the integrity of criminal investigations and protecting those who provide information to prosecuting authorities from any wider dissemination of that information, other than in the resultant prosecution.

5. It is for the first instance judge to weigh up the conflicting public interests. The Court of Appeal will only intervene if the judge erred in law, as in Gohil, or failed to take proper account of the conflicting interests in play, as in IG Index."

17. An application was made by the appellant to the Supreme Court, for permission to appeal but permission was refused. We are told in the SFO's statement on this application that the Supreme Court said that the application did not raise any arguable point of law.
18. A further application to use some 57 documents, extending to over 500 pages, was dismissed by Eder J in a judgment given on 11 December 2014. The vast majority of these documents were not generated as a result of cooperation between the SFO and Guernsey or any other foreign authorities. Nonetheless, there was, as Jackson LJ had observed, citing earlier authorities, a strong public interest in preserving the integrity of criminal investigations and protecting those who provide information to prosecuting authorities from any wider dissemination of that information, other than in the resultant prosecution.
19. The application was made on the basis that the appellant intended to amend its grounds of appeal in the Guernsey proceedings, in the light of the 57 documents. As explained to the judge, the proposed new grounds of appeal centred on the alleged impact of the SFO criminal investigation on the conduct of the trial in Guernsey. It was alleged that some evidence given was incomplete, misleading or false because it was inhibited by the continuation of that investigation. The investigation meant that the appellant could not, as a matter of practice, obtain witness evidence from former employees of Kaupthing and the continuation of the investigation severely prejudiced both the appellant's capacity to prepare for trial and the judge's view of the credibility of its witnesses.
20. Again, Eder J addressed the balancing exercise between competing interests and concluded that permission should not be granted.
21. He said at paragraph 18:

"The starting point is to recognise the strong public interest in preserving the integrity of criminal proceedings ... Many of the 57 documents contained the SFO's detailed notes of discussions with third parties and its own internal assessment and recommendations with regard to the criminal investigation."

22. As regards the value of the 57 documents for the purposes of the appeal in Guernsey, the judge concluded that the appellant would be able to make the points to be raised in its proposed amended grounds of appeal by reference to public documents, without the need to resort to the 57 documents.
23. In any event, he concluded that the appellant had failed to advance a cogent case as to the alleged relevance and probative value of the 57 documents which outweighed the strong public interest in preserving the integrity of criminal investigations.
24. He also considered that there was a risk of unfairness in Guernsey which was relevant as part of the balancing exercise. This would involve unfairness to the SFO itself, arising from the selection of 57 documents, amongst the 45,000 or so disclosed by it, in order to promote what was submitted on behalf of the SFO would be an entirely one sided view of the investigation, in proceedings to which the SFO was not a party.
25. On 2 February 2015, the Court of Appeal (Moore-Bick and Longmore LJJ) refused permission to appeal against the order dated 11 December 2014. In the light of submissions made on the present application, it is of value to cite a few passages from the judgments given on that occasion. In paragraph 11, Longmore LJ said that counsel for the appellant had submitted that the judge was wrong to take as the starting point, the confidentiality which ought to be assumed for criminal investigations. This, counsel submitted, was not a starting point at all but only a factor in the overall assessment of the entitlement to rely on the documents.
26. After referring to other submissions made, Longmore LJ said:

"12. Looking at the matter in the round, one first of all has to remember that this is an exercise of discretion by the judge. This is, moreover, an exercise of discretion, in what is effectively the case management of a lengthy and complex case which was managed, as far as the English proceedings are concerned, by the very judge who gave this judgment and who must know far more about the proceedings than this court, on this application, will ever know.

13. In those circumstances, it seems to me that there is a heavy onus on someone who wishes to appeal such exercise of discretion.

14. The judge has given his reasons which I have attempted to set out. The only complaint, really, on the part of the applicants, is that he has given insufficient reasons for saying why each of the 57 documents is, in fact, of the limited utility which he indicates that it has. That was only one part of the reasoning of the judge. The judge is not obliged to give detailed reasons about every document or, indeed, every submission made by counsel, in a case, especially a case of this complexity. The question is looking at it as a whole, would this court be likely, if permission to appeal were granted, to say that the judge had exercised his discretion wrongly. In my view, this court is most unlikely to come to any such conclusion. In the light of the fact that it is very much a matter for the judge's discretion, I would refuse permission to appeal."

27. Moore-Bick LJ agreed. He pointed out that counsel for the appellants accepted that none of the 57 documents bore directly on the issues of fact arising in the Guernsey proceedings but were relevant only to the credibility of the trustees' witnesses and the weight to be attached to the evidence of Robert Tchenguiz: see paragraph 15.
28. He continued:

"16. In reaching his decision, the judge had to evaluate the importance of these documents to the applicant's case in Guernsey, in order to balance the various competing interests which arise on an application of this kind, including in this case, the importance of preserving the confidentiality of documents created in the course of a criminal investigation. The judge made his evaluation and he concluded that the 57 documents were likely to be of limited utility to the applicants in furthering their appeal and if the appeal is successful, any retrial.

18. An evaluative judgment of the kind which the judge had to make in this case, is always very difficult to overturn in this court because the court is very conscious of the importance of not simply substituting its own view for that of the judge. Before the court gives permission for an appeal against a decision of this kind, therefore, it will want to see that there are cogent reasons for thinking that the judge has strayed beyond the boundaries of legitimate disagreement that inevitably attach to a decision of this kind."

29. The appellant had not yet finished. In November and December 2014, it issued a total of three applications, seeking permission to use various documents in support of the appeal in Guernsey.
30. In chronological order, the first application issued on 14 November 2014, sought permission to use certain extracts from six witness statements served by the SFO in the English proceedings. Secondly, by an application dated 5 December 2014, the appellant sought permission to use a total of 78 documents, disclosed by the SFO in the English proceedings. This was later increased by the addition of a further 15 documents. Thirdly, by an application dated 23 December 2014, the appellants sought permission to use (i) 14 documents obtained from Grant Thornton (UK) LLP (GT) by way of third party disclosure in the English proceedings and (ii) six reports prepared by the joint liquidators, who are partners in GT, of various companies associated with Robert Tchenguiz and involved in the Guernsey proceedings. The 14 documents related to meetings and communications between the SFO and GT, whereas the six reports were unrelated to the SFO's investigations.
31. Two further applications were heard in February 2015 by Eder J. First, the appellant applied on 19 January 2015 for, in effect, a declaration that certain documents, including some within the 78 documents, were already in the public domain by virtue of the exception in CPR 31.22(1)(a) because they had been referred to in proceedings in open court. Secondly, by an application dated 2 February 2015, the SFO applied for an order pursuant to CPR 31.22(2) that use of any documents which were the subject of the application issued on 19 January 2015 should not be permitted, even if they had been referred to in open court.
32. These applications were heard over six days, between 22 January and 6 February 2015. By that time, the appellant had drafted its proposed amended grounds of appeal in the Guernsey proceedings. The appeal was due to begin on 16 February 2015 and the determination of the applications was therefore, as the appellant pressed and as the judge observed, very urgent. He went on to say that because of the urgency, he proposed to deal as succinctly as possible with the main issues and to state his conclusions and reasons as briefly as possible.
33. The judge observed at paragraph 34 that nine of the 78 documents were the subject of the previous unsuccessful application in respect of 57 documents and two were the subject of the previous unsuccessful application in respect of 22 documents. He did not consider that there had been any or any significant change in circumstances which might justify the repeated application in respect of those particular documents. Accordingly, as regards those documents, he concluded that on that ground alone, the application should fail. Permission to appeal is not sought in respect of those documents.
34. He went on to state his reasons for concluding that the appellant had failed to show special circumstances constituting a cogent reason for permitting collateral use in the Guernsey proceedings of any of the documents which were the subject of the various applications.
35. At paragraph 36, he said:

"First, the starting point is that all of the 78/15 documents were generated by the SFO and formed part of its criminal investigation. As confirmed in the Court of Appeal judgment, absent special circumstances, the court will not ordinarily permit use of such documents for a collateral purpose."

36. At paragraph 37, he accepted the submission of counsel for the SFO that the claimed relevance and probative value of the documents as regards the Guernsey proceedings were substantially the same or very similar, both legally and factually, as that of the 22 and 57 documents in the earlier applications. He understood from the written and oral submissions of counsel for the appellant that, ultimately, this was at least broadly accepted by the appellant.
37. He took the view that to accede to the applications would risk substantial unfairness to the SFO in the Guernsey proceedings. He referred back to the way that he had dealt with this in his judgment in relation to the 57 documents application and continued that having heard further argument on the subject, his views in this respect had strengthened. It was no answer to say that the SFO could, if it wanted, release other documents for use in the Guernsey proceedings. The SFO did not wish to do so and was not a party to the Guernsey proceedings and in, any event, there was a strong public interest in maintaining the confidentiality of these documents.
38. For all these reasons, he refused permission for use of the 78 and 15 documents in the Guernsey proceedings.
39. As regards the application for permission to use extracts from witness statements served by the SFO in the English proceedings, he recorded that there was broad agreement as to the applicable principles, which were similar but not identical to those which applied in respect of documents disclosed in the litigation. He accepted the submission made on behalf of the SFO that the relevant extracts contained many references to the SFO disclosure documents and that, in truth, the application sought to make collateral use of information derived from a considerable number of the SFO disclosure documents. He relied, also, on the public interest in respect of information relating to a criminal investigation and he relied on the limited utility of the extracts from the Guernsey proceedings, for similar reasons to those which applied in the previous applications.
40. He relied also on the fact that the witnesses had declined to consent to the use of their witness statements in the Guernsey proceedings, that the use of the witness statements, like the use of the 78 and 15 documents, risked substantial unfairness and finally, that three parties potentially affected by the application had not given their consent.
41. For all these reasons, the judge refused to permit the use of the extracts from the witness statements in the Guernsey proceedings.
42. Much the same considerations led to his refusal to permit the use of the 14 GT documents which related to meetings between the SFO and GT. Given that the documents constituted confidential records directly relating to the SFO's investigations, the fact that they were produced by GT and not by the SFO, was not a material point of distinction, he held.
43. The judge accepted that the six reports produced by the joint liquidators stood in a different position because they did not relate to the SFO's investigations, nor did they contain notes or records of any meetings with the SFO. Also, the joint liquidators who were responsible for the production of the reports, were parties to the Guernsey proceedings and would therefore be in a position to make appropriate representations in Guernsey as regards the admissibility and relevance of the reports. Nonetheless, the judge concluded that the appellant had not met the burden of providing a cogent reason to justify the court making an order, permitting the collateral use of these documents. First, the appellant had already made an application in the Guernsey proceedings for disclosure of the reports which failed before Sir John Chadwick and an appeal against that judgment was rejected by the Court of Appeal of Guernsey. Secondly, the judge concluded that, at best, the reports would have very limited use in the Guernsey proceedings.
44. I deal, first, with the applications for permission to appeal against the dismissal of the applications to use the various documents disclosed by the SFO and extracts from the witness statements.
45. It is of central importance that at the commencement of the appeal in Guernsey on 16 February 2015, a few days after Eder J delivered judgment, the Court of Appeal of Guernsey refused permission to the appellants to amend their notice of appeal. The ground of refusal was not that there was insufficient evidential support for the proposed grounds of appeal but that the matters sought to be raised were known to the appellants or should have been known to them at the time of the trial and could and should have been raised by them at that time.
46. The Court of Appeal said that the appellant's submission that it had only been able to formulate its full draft grounds of appeal after 11 December 2014, when Eder J handed down his judgment in the 57 documents application, did not withstand scrutiny.
47. As regards the proposed grounds which were based on the contention that the SFO investigation resulted in an unfair trial of the Guernsey proceedings, the Court of Appeal said that each of the principal matters relied on:

"… were or ought to have been obvious to the appellant at the preparation for the trial below.

The appellant could have sought an adjournment based on these concerns but did not. In considering the discretion open to us as to whether or not to permit amendment, it seems to us there is no good reason to allow the appellant at this stage to bring in arguments which it could have brought in prior to trial and that to do so would not result in overall justice between the parties."

48. The significance of the decision of the Court of Appeal of Guernsey is obvious. The applications before Eder J were made to enable the appellant to use the various documents primarily in support of its proposed amended grounds of appeal. As the Court of Appeal refused permission to amend the grounds of appeal, not because there was a lack of material that might be prayed in aid of them but because that material had been or should have been known to the appellant at the time of the trial, an appeal against the dismissal by Eder J of the applications would serve no useful purpose.
49. The appellant seeks to deal with this by relying on the fact that it has filed an application with the Privy Council for permission to appeal against the refusal by the Court of Appeal of Guernsey to allow the amendments to the grounds of appeal. If the Privy Council were to give permission to appeal against that decision, the basis of the appeal would be and would have to be that the Court of Appeal of Guernsey was wrong in its assessment of the availability of the relevant material enabling the points to be raised at the time of the trial.
50. The documents which the appellant seeks permission to use have no bearing on that issue. If the Privy Council, assuming it gave permission to appeal, dismissed the appeal, that is an end of the matter. If however it allowed the appeal Mr Hollander QC, appearing today for the appellant, accepted that the matter would be remitted to the Court of Appeal of Guernsey for the appeal on the amended grounds to be determined.
51. In common with Christopher Clarke LJ, who refused permission to appeal against the orders of Eder J, I take the view that this is fatal to the present application as far as it relates to permission to use the various disclosed documents and extracts from the witness statements. Nevertheless, it is right to say something about the grounds of appeal, particularly because at least some of them are relevant to the other orders that the appellant seeks to appeal.
52. Ground 1 is headed "Reliance on class protection of SFO documents". While the appellant accepts that there is a general principle which the judge had to apply, militating in favour of the SFO's position, that there is a strong public interest in preserving the integrity of criminal investigations, the appellant submits that the judge erred in the manner in which he applied that general principle to the applications before him. It is said that he should have considered the ways in which and the extent to which that principle is engaged, if at all, by the documents which were the subject of the applications, rather than approaching the application on the basis that documents generated by the SFO and forming part of its criminal investigation automatically enjoyed a high degree of protection.
53. It was incumbent on the judge, it is submitted, to consider the specific reasons why collateral use of a specific document would prejudice or damage the public interest and the importance of preserving the integrity of criminal investigations will vary enormously according to the nature of the document and the circumstances in which it is proposed to be used.
54. I have already cited the opening passage from paragraph 36 which deals with this. It is worth recalling that it has a very strong echo in paragraph 18 of his judgment given on 11 December 2014 dealing with the 57 documents. As far as that judgment was concerned, it does not appear from the judgments of the Court of Appeal when refusing permission to appeal that issue was taken with the relevant passage from the judgment dealing with the 57 documents, save for the use of the expression "the starting point".
55. Longmore LJ recorded that the appellants on that application had accepted that there was no error of principle. Moore-Bick LJ in a passage that I have already cited specifically referred to the importance of preserving the confidentiality of documents created in the course of a criminal investigation.
56. On this application, Mr Hollander submits that the judge erred in creating far too wide a class of documents to which the particular public interest in the confidentiality of criminal investigations related. He submitted that it was not enough that the documents in question had, as the judge put it in paragraph 36, been "generated by the SFO and formed part of its criminal investigations". He submitted that the focus of this public interest was on protecting actual and potential witnesses.
57. While accepting that this is a significant element of the relevant public interest, it is in my judgment clear that the relevant class of documents is very much wider, as established by the decision of the House of Lords in Taylor v Serious Fraud Office [1999] 2 AC 177. I refer in particular to the speech of Lord Hope at page 218. The judge in this case saw the documents and he was entitled to conclude that all of them, as he said in paragraph 36, came within that relevant category.
58. Ground 2, which Mr Hollander took alongside and as subsidiary to ground 1, took issue with the judge's approach of treating the integrity of the criminal proceedings as the starting point. I do not accept that any criticism can be made of the judge's approach in this respect. It seems to me that even a cursory reading of the judgment shows that the judge did not accord greater significance to this public interest over the other public interests engaged.
59. Ground 3 takes issue with the judge's reliance on unfairness to the SFO if the appellant is permitted to make reference to the particular documents which it wishes to use. Mr Hollander submitted that this cannot be a good reason for refusing permission. He submitted that it put an applicant on the horns of a dilemma. On the one hand, if it applied to use all of the disclosed documents it was making far too broad an application. On the other hand, if it narrowed its application to a smaller number of documents, it would be met by the point on unfairness.
60. Jackson LJ accepted that unfairness to the other parties to the Guernsey proceedings could be and was a relevant factor. In my judgment, potential unfairness to the SFO, which is not a party to the Guernsey proceedings and is therefore not in a position to put forward in those proceedings its side of the story, is also capable of being a relevant factor and the judge was entitled to take account of it in the balance which he had to strike. Mr Hollander's submission would be good only if it were a determinative factor. It is not. It is simply one of the factors which the judge was entitled to take into account.
61. Ground 4 is that the judge was not entitled to assess the relevance or utility in the Guernsey proceedings of the relevant documents and witness statements. Mr Hollander submitted that this was a matter for the Guernsey court alone, save in those cases where the documents fell at either end of a wide spectrum, being either obviously relevant or obviously irrelevant.
62. In the judgments of both Jackson LJ and Longmore LJ, an assessment of the relevance and utility of the documents, not confined in the way suggested by Mr Hollander, was accepted as a relevant factor in the balancing exercise to be undertaken by the judge. In my judgment, that is clearly so. The English court is in no way usurping the function of the Guernsey court in forming a view on this question, as a factor relevant to the decision which only the English court can make, namely, whether to give permission for the documents and witness statements to be used for purposes other than those of the English proceedings.
63. Turning to the 14 GT documents, it is important to note that these are all notes of meetings between the representatives of GT and the SFO. Notes made of those meetings by the SFO would clearly fall within the category of documents to which the public interest in preserving the confidentiality of criminal investigations would apply. While it is a relevant factor that the documents were made not by the SFO but by a private person in a private capacity, their subject matter nonetheless means that it is right to have regard to the public interest in relation to criminal investigations, in deciding whether permission is to be given. The judge in this case was right to do so and he was entitled, in his discretion, to come to the conclusion that permission should not be granted.
64. The final set of documents are the six reports prepared by the joint liquidators. I have already explained that they stand in a very different position from the documents previously discussed.
65. For two reasons, the judge concluded that permission should not be given to use these reports. The first was that an application had been made to Sir John Chadwick in the Guernsey proceedings for specific disclosure of these reports by the joint liquidators who are parties to the Guernsey proceedings. That application had failed, as had an appeal to the Court of Appeal of Guernsey. In my judgment, it is clear that this is a very substantial objection to the grant of permission under CPR 31.22. In circumstances where the documents in question are held by a party to the Guernsey proceedings, there is no need to invoke the jurisdiction of the English court. It is essentially a matter for the Guernsey court whether disclosure of those reports should be ordered.
66. Having now seen the reports, the appellant might be in a position to submit to the Guernsey court that there had been a sufficient change in circumstances to permit it to make a further application. I say nothing at all about the merits of any such submission but I consider that the judge was right to conclude that the fact that the Guernsey court had been seized of the matter was of itself a sufficient factor to permit the judge, in his discretion, to refuse permission.
67. Turning to the application for permission to appeal against the order made by the judge prohibiting the use of 22 documents which had been referred to in the course of proceedings in open court, the judge accepted that the onus was very much on the SFO to justify the imposition of such prohibition. He concluded that the SFO had satisfied him that it was appropriate to make the order sought. There were a number of grounds for that decision, many of which repeated grounds for his decision in refusing permission to the appellant to use the disclosed documents. For example, the documents related to the SFO's criminal investigation. They would be, at best, of limited utility in the Guernsey proceedings and there would be unfairness to the SFO if the documents were used in the Guernsey proceedings.
68. For the reasons already given in my judgment, these were all matters to which the judge was entitled to have regard.
69. A further ground which is the subject of submissions by Mr Hollander, is that the references to the documents were marginal or at least fairly minimal and they did not have particular significance in the context of the proceedings and the issues argued and decided. Mr Hollander submitted that the judge was not entitled to have regard to this factor. In my judgment, he clearly was entitled to have regard to this factor, as one of a number of relevant factors. Mr Hollander also challenged the view reached by the judge of the significance of the documents. As to that, this was an evaluative judgment and Eder J, as the judge who had presided over the relevant applications, was in the best possible position to rule on their significance.
70. For all these reasons, I have reached the conclusion that there is no real prospect of a successful appeal against any of the orders made by Eder J on 10 February 2015.
71. I turn then to the order made by Eder J on 1 April 2015. The application was made by the SFO, after it had identified some 550 or so documents which had been or may have been referred to in the course of hearings in open court in the English proceedings.
72. It appears that the documents to which the application related were documents which had been included in hearing bundles. The SFO had calculated that there would be a substantial cost in identifying which of those documents had in fact been referred to in the course of hearings in open court. Rather than incur that cost, and then apply, as far as appropriate, for orders prohibiting the use of those documents, notwithstanding that they had been referred to in open court, it applied for the order which Eder J made.
73. The order provided that the appellant should be restrained from using the relevant documents or any information derived from them, without first giving 14 clear days' notice in writing to the SFO's solicitors of their proposed use, and identifying the documents and information to be used and the nature of the proposed use.
74. Having considered the submissions made by Mr Hollander on behalf of the appellant and the proposed grounds of appeal, I consider that this order raises issues which should be the subject of an appeal to the Court of Appeal and, accordingly, I would give permission to appeal in respect of that order.

Lord Justice Lloyd Jones:

75. I agree.