England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st May 2002

Mr Justice Tomlinson :

1. In this action the Claimants sue the Defendant to whom I shall refer as “the Bank” in the tort of misfeasance in public office. The history of the action and its subject matter are both set out in the speeches delivered on two separate occasions in the House of Lords—see 2000 2 WLR 1220 and 2001 2 All ER 513, and I need not repeat those matters here. At the heart of the case lies an examination of the acts and omissions of the Bank and the state of mind of the Bank’s officers which accompanied them over about a thirteen year period in the conduct of the Bank’s supervisory role in relation to banking in the United Kingdom. The allegations are serious, since they impute bad faith to public officers in the exercise of their powers and duties, which powers and duties lie in an area of the utmost importance and sensitivity, the supervision and integrity of institutions licensed to accept deposits in the United Kingdom. The case is equally serious when viewed from the perspective of the Claimants, most of whom are individuals who have lost substantial sums of money or local authorities who have lost money which came from individual ratepayers and the loss of which has no doubt had to be made good from the same source. Lord Hope in the second of his speeches said that the case is one of a quite exceptional character—see 2001 2 All ER 513 at 544 ab. That is an observation which I have tried to bear in mind in determining the issues which have arisen on the present application. One of the reasons why Lord Hope made that observation was because the highly complex issues of fact which the Claimants seek to raise relate to matters in which they were not directly involved, as they were third parties to the system of regulation that was set up to protect them. Another was that the issues of fact involve meetings and discussions between many parties at which the Claimants were not represented and they extend, through no fault of the Claimants, over a very long period. I would also observe that the Claimants do not all stand in the same position. Some are late joiners—those who entrusted their money to BCCI SA in the final months before closure. What is plain is that the court will have to examine a continuum of conduct and a no doubt evolving state of mind.
2. What I have had to consider on this interlocutory application is the extent to which the court may and should lend its aid to the Claimants in their attempt to find out more than they presently know concerning these matters to which they were not privy. That attempt has been at times described as a “fact-gathering exercise” and the submissions made to me have at times suggested that for the court to lend its aid to such an exercise is an improper and impermissible use of the court's powers to order disclosure of documents by a person not a party to the litigation. In a case of the present sort a submission of that nature requires the closest scrutiny.
3. The present application is concerned with what everyone has called the “Bingham Archive.” That is the body of material assembled by Bingham LJ in the course of his Inquiry, on the basis of which he prepared his report. I shall set out in detail hereafter the basis upon which Bingham LJ came to be appointed, the nature of his remit and the manner in which he went about his task, from which the likely shape of the archive can be discerned. It includes observations and submissions to Bingham LJ, correspondence to and from Bingham LJ, notes of Bingham LJ himself, transcripts of evidence given to Bingham LJ, documents supplied to Bingham LJ or obtained by him, drafts of parts of the report, comments on drafts of parts of the report and so forth. At the hearing attention was ultimately focused on transcripts of evidence and the submissions or information supplied by those who gave assistance to the Inquiry, whether in correspondence or by viva voce evidence and the documents which they provided or about which they were asked. Furthermore attention has been focused on those who can realistically be expected to have spoken of, or supplied documents relevant to, the Bank’s supervision of BCCI and as to what was known about BCCI within the banking community rather than on those who told Bingham LJ about the nature and extent of fraudulent and dishonest activity within BCCI. That is not to say that the Claimants will not pursue a request for more wide-ranging disclosure, but they identify individuals and documents whose evidence and whose contents can broadly be expected to cover the areas which I have just described as being presently of prime importance.
4. The archive consists of 708 files which are physically located in the Public Records Office at Kew. The Claimants have been concerned to gain access to the archive since June 2001, shortly after the House of Lords ruled that the action could proceed, and to that end wrote to the Treasury Solicitor indicating that they believed that the archive might be under her control and that the archive contained documents likely to assist the court and the parties in the expeditious and fair disposal of the action. I do not consider it of any current materiality that the Claimants in that letter used different formulations to convey the basic notion of the relevance of the contents of the archive to the issues in the case. At this stage the Claimants had Bingham LJ’s report but not its unpublished appendices.
5. The Treasury Solicitor’s first substantive response was on 6 November 2001. She treated the Claimants’ approach in June as a request for non-party disclosure of the archive from HM Treasury. Her reply on the Treasury’s behalf contained the following paragraph:-

“It may help if I start by confirming the following: the Inquiry’s Secretary was provided on loan from, and the Inquiry Secretariat were accommodated by, this office; on completion of the Inquiry, the Archive remained here in locked cabinets for about a year before being transferred to the Public Records Office (PRO) in Kew; the Archive is stored at the PRO as a set of “public records” under the Public Records Act 1958; the PRO are storing the Archive as the “records of a defunct temporary body” under the reference number BS25; the Archive comprises 708 separate files stored in 85 standard repository boxes (measured in “linear metres” the Archive is about 11metres long); the Archive does not represent the totality of the material obtained and produced during the course of the Inquiry as some material was destroyed after the Inquiry and the PRO have also begun weeding out duplicate material; the PRO have suspended this weeding process in the light of your request; the Archive’s final closure period has not been determined but it will not be accessible to the public until at least 30 years after the close of the Inquiry; the PRO have not produced a final index or list for the Archive although some work has been done to this end; and the Archive does not include a copy of Appendix 8 to the Bingham Report or any transcripts of the evidence of the security and intelligence agencies.”

The request for non-party disclosure was declined in the following terms:-

“I am instructed to refuse your request for non-party disclosure of the Archive for the following reasons.

In general terms, HM Treasury consider that the non-party disclosure of the Archive should not be allowed without a proper assessment of whether and to what extent:

(a) each item to be disclosed is relevant and disclosable in the context of these proceedings;

(b) each item to be disclosed is subject to a statutory bar on disclosure and/or can be disclosed through a statutory gateway;

(c) each item to be disclosed is confidential and, if so, whether the relevant confider consents to disclosure and/or the public interest in disclosure outweighs the relevant duty of confidence; and

(d) each item to be disclosed attracts public interest immunity (PII) and, if so, whether the public interest in disclosure outweighs the public interest in non-disclosure.

Your letter dated 22 June 2001 has not satisfied HM Treasury that any of these issues can be resolved in favour of disclosure. Moreover, and given the scale of the task involved, HM Treasury are not prepared to investigate these matters further without more information and better reasons for doing so and without being indemnified against the expense this would entail.

So far as concerns issue (a), you have not explained how or why the Archive is relevant to these proceedings or would be likely to support or adversely affect either side’s case. Neither are HM Treasury satisfied that non-party disclosure is necessary in order to dispose fairly of the claim or save costs.

In general terms, HM Treasury would expect that the court will determine your clients’ allegations of misfeasance by reference to an assessment of the Bank of England’s actions and knowledge at the material time. They would also expect that evidence on this will come from both sides’ witnesses and from documents revealed during the course of an ordinary inter partes disclosure exercise. They would not expect documents outside the Bank’s duty to disclose (ie documents which are not and have not been in its control) to be capable of revealing anything about the Bank’s actions or knowledge. In so far as you are seeking the non-party disclosure of material which the Bank is going to disclose anyway, your request is therefore unnecessary. In so far as you are seeking the non-party disclosure of material which is or has never been in the Bank’s control, it is difficult to think how this could be relevant to the pleaded issues.

In this regard, your own letter dated 22 June 2001 only goes as far as asserting that the Archive “may enable issues in the actions to be resolved in a more cost effective and proportionate manner”. You do not demonstrate (whether by reference to relevant statements of case or otherwise) that the material you seek is likely to be relevant to the pleaded issues and/or capable of supporting or adversely affecting either side’s case. A much more compelling demonstration of the Archive’s relevance and disclosability would be needed before your request could be considered appropriate.

So far as concerns issue (c), you will have seen Lord Bingham’s open letter dated 1 August 1991 and the accompanying statement of Inquiry procedures. In this regard, the Inquiry hearings took place in private and Lord Bingham made it clear at the outset that “much of the material the Inquiry will have to consider will be, for different reasons and to varying extents, confidential”. In all the circumstances, HM Treasury could not disclose any Archive material without considering not only their own obligations to maintain the confidentiality of particular documents but also the effect disclosure might have on the integrity and effectiveness of similar non-statutory inquiries. If Archive material provided in confidence were to be disclosed in these proceedings, it could undermine the co-operation and candour of potential participants in future inquiries; this is another important factor for HM Treasury to consider.

So far as concerns issue (d), you will appreciate that HM Treasury have a duty to claim PII whenever the tests for doing so are met. The current approach to PII issues was set out in statements made on 18 December 1996 by the then Lord Chancellor and the then Attorney General in the House of Lords and the House of Commons respectively. This was done following the House of Lords’ decision in R v Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274 (HL). In short, the following distinct steps must be gone through in sequence when consideration is being given to a PII claim: first, a decision must be taken on whether there is a duty to disclose at all, that is to say, it must be decided whether the material passes the threshold test for disclosure in the relevant proceedings; secondly, a decision must be taken on whether the material attracts PII because its disclosure would cause real damage or harm to the public interest; thirdly, a decision must be taken on whether the public interest in non-disclosure is outweighed by the public interest in disclosure of the material for the purposes of doing justice in the proceedings.

Given that Lord Bingham and his Secretary have been functus officio (so far as concerns the Inquiry) for more than nine years and given that no-one else has any detailed knowledge of the Archive’s contents, you will also appreciate that a proper assessment of issues (a) to (d) above would involve a considerable amount of work in terms of cataloguing and reviewing the Archive. Such an exercise would involve the diversion and expenditure of time and resources in the interests of private litigants and HM Treasury do not consider that this should be undertaken without a suitable indemnity covering their legal and administrative costs and reimbursing the public purse.

I should make it clear that if it were possible for HM Treasury properly to address issues (a) to (d) above and they were, as a result, satisfied that non-party disclosure of Archive material were appropriate, then they would be minded to accede to your request to that extent. In short, HM Treasury is willing to consider a more targeted and better supported request for non-party disclosure of Archive material on condition that:

(i) the request is specific to particular times, persons and/or issues;

(ii) the request explains (by reference to relevant statements of case) how and why the material sought is likely to be relevant to the pleaded issues and capable of supporting or adversely affecting either side’s case;

(iii) the request explains (by reference to relevant statements of case) how and why the non-party disclosure of the material sought would be necessary in order to dispose fairly of the claim or save costs;

(iv) the request explains why originals or copies of the material sought will not be disclosed by the Bank of England during the course of its disclosure;

(v) you provide a full indemnity in relation to the legal and administrative costs of considering and answering the request; and

(vi) HM Treasury would reserve the tight to refuse disclosure and/or copying and inspection either at all or in the absence of an order for non-party disclosure (which might be resisted in whole or in part).”

6. The Claimants responded on 21 December 2001. By this time the Claimants had had disclosed to them by the Bank appendices nos 1-7 to the Bingham report which they had not hitherto seen. It was said that in the light of this the Claimants were in a position to expand and refine their requests for third party disclosure. Lists were provided of particular documents thought likely to be in the control of one or other Government department the existence of which could be gleaned from a perusal of the Bingham report or appendices nos 1-7. So far as concerned the Archive itself the Claimants said this:-

“As regards material from the Bingham Inquiry archive, subject as set out below, we confine our requests at this stage to witness statements and transcripts of evidence of those identified in Annex 1 to the published Report and the other documents recording the evidence, observations or material provided to the Inquiry by such persons. We attach, for your convenience, a copy of Annex 1. Again, we must formally reserve our position in relation to other documents held in the archive.”

As to relevance the Claimants said this:-

“(a) Relevance

1. Our clients deduce the existence of the documents we request from the terms of the Bingham report and its Appendices.

2. Lord Bingham wrote that he understood his terms of reference as calling for consideration of the following, inter alia:

“(1) What did the United Kingdom authorities know about BCCI at all relevant times?

(2) Should they have known more?

(3) What action did the United Kingdom authorities take in relation to BCCI at all relevant times?

(4) Should they have acted differently?

We refer you to page iii of the published Report.

3. One of the main issues in the litigation between our clients and the Bank of England concerns the state of mind of the Bank in relation to its statutory duties and BCCI. We enclose a copy of the Particulars of Claim for your attention. The pleading in this amended form was produced at the suggestion of the House of Lords, which subsequently gave permission for the amendments to be made (see the Three Rivers case [2001] 2 All ER 513, per Lord Steyn at p 516, para 3 and p 517, para 8).

4. The documentation we have requested appears plainly to go to the question of the Bank’s knowledge and/or its action or inaction. The particular documents and communications we have enumerated were considered by Lord Bingham to be sufficiently significant to deserve mention in connection with the questions he was considering. As regards the Bingham Inquiry Archive material which we request (witness statements and transcripts of evidence), Lord Bingham must have considered such evidence germane to the above issues.”

The Claimants recognised that questions of statutory bars on disclosure, confidentiality and public interest immunity, hereinafter PII, would need to be resolved. The Claimants confirmed their willingness to meet the cost of the work to be done by the Treasury Solicitor in these terms:-

“Our clients will meet your clients’ reasonable costs of finding and producing the documents (as envisaged by CPR, Part 48.1). For the avoidance of any doubt, this does not extend to any legal costs incurred, for example, in connection with any assertion of a claim for public interest immunity or any claim to withhold documents on any other basis.”

7. This letter did not arrive at the office of the Treasury Solicitor until 27 December and the solicitor responsible did not return from his annual leave until 9 January 2002. In these circumstances the Treasury Solicitor has resented criticism of a failure to make a timely response, and has in turn been critical of the Claimants for thereafter taking precipitate action, which was moreover in one very significant respect inconsistent with the position adopted in their letter of 21 December. I do not need to enter into this debate. It is the case that I had at the end of November 2001 imposed on the Claimants a provisional time-table leading to a trial beginning after Easter 2003 which Lord Neill Q.C. on their behalf had suggested was unrealistic. He contended for a trial beginning in October 2003. I had to balance the competing considerations, one of which was the advancing age of many of the Bank’s most important potential witnesses. One of the officers of the Bank most closely involved is already sadly dead. It is already a very long time since the events in question. I also had in mind the injunction of Lord Steyn and Lord Hope to the effect that the Commercial Judge would wish to proceed to trial with due despatch and a minimum of technical interlocutory hearings. The Claimants’ conduct has undoubtedly been informed by an anxiety that were they not to launch the appropriate applications early they would be left with insufficient time to complete the necessary preparations for trial.
8. At all events the Claimants had by 25 January 2002 received no substantive response to their letter of 21 December 2001 and at the second CMC which took place on that day they obtained from me leave to issue Witness Summonses pursuant to CPR 34.2 and 34.3. Those Witness Summonses were directed to various persons including, relevantly for present purposes, the Treasury Solicitor “in relation to documents held by HM Treasury.” The Schedule attached to each Witness Summons identified the documents to be produced—these were the same Schedules as sent with the Claimants’ letter of 21 December 2001. However there was also a Witness Summons directed to Mr R A D Jackson “qua Bingham Secretariat.” Mr Jackson had been the Secretary to the Inquiry conducted by Bingham LJ and I shall deal with his role in more detail hereafter. The Witness Summons issued against him called for production of the entire archive. It was explained to the Court that the issue of the Summonses was seen as only a first step in this process and that of course any of the third parties against whom a Witness Summons had been issued could apply to have the summons varied or set aside. It was envisaged that at that stage the Claimants would issue applications under CPR 31.17 for third party disclosure, which applications could conveniently be heard at the same time as any application to set aside the Witness Summonses. The Claimants desired to proceed on two fronts so that they should not fall between two stools, it being suggested that the one rather than the other was the proper route to be followed. I approved of this strategy provided that it was explained to the Treasury Solicitor because it seemed to offer a way in which the matter could be taken forward. I am not sure that I then appreciated, or fully appreciated, that the more confined request for disclosure from the archive had given way to a request for production of the entirety thereof but this is now immaterial.
9. As anticipated the Treasury Solicitor applied on 1 March 2002 for the Witness Summonses to be set aside. The grounds relied on were:-

“(a) The description of the documents sought is in many of the witness summonses not sufficiently specific.

(b) The documents sought in each of the witness summonses have not been shown to be relevant or admissible.

(c) The exercise of producing the documents is likely to be burdensome, time-consuming and difficult involving a search of an excessively large number of documents and going beyond what is to be expected of a non-party. The request appears to be a fishing exercise, is too wide and is not confined to what is reasonably necessary.

(d) Production of documents by non-parties is neither necessary or appropriate at this stage, when the defendant has not provided disclosure.

(e) The order against the individuals specified in the summonses for attendance should be set aside on the basis of an undertaking that the HM Treasury, the Foreign and Commonwealth Office, the Department of Trade and Industry and the Office of Fair Trading will treat the requests in each witness summons as requests to the named departments and if the court requires any individual to come to court formally and to produce any documents which may be ordered to be produced, Jonathan Morris is authorised to do so on behalf of the four departments.”

I should note however that issue of that application was preceded by a letter from the Treasury Solicitor of 11 February 2002 which suggested that CPR 31.17 was the appropriate procedural avenue for pursuit of the requests and gave a clear indication that the Claimants might be well-advised, in the light of the “strict terms” of CPR 31.17, to continue to explore the extent to which HM Treasury and other Government departments were prepared to offer a degree of voluntary co-operation. There was substance in that point not least because the Treasury Solicitor was able in the same letter to give a guarded confirmation of assistance from the DTI. Subject to any further pursuit of the voluntary co-operation route, the stage seemed set for a hearing at which it could be decided what, in principle, was the appropriate route to be followed for pursuit of disclosure and production of documents held by third parties, in particular the Bingham Archive.

10. On 4 March 2002 matters took an unexpected turn. In their letter to the Treasury Solicitor of 21 December 2001 the Claimants had noted that, as regards the Bingham Inquiry archive material, it appeared to them unlikely that a great deal of this material would be or ever had been available to the Bank. The Claimants observed that there was, so far as they were aware, no reason to believe that material obtained by the Inquiry from third parties was copied to the Bank. However further consideration of the circumstances of Bingham LJ’s appointment gave to the Claimants reason to believe that the Bingham archive might after all be in the control of the Bank, albeit jointly with HM Treasury. The reason for this is that, as I shall set out in more detail hereafter, the invitation to undertake an Inquiry was extended to Bingham LJ by the Chancellor of the Exchequer on behalf of himself and the Governor of the Bank of England, to whom I shall refer hereafter as “the Governor.” Hence when the Claimants came on 12 March 2002 to issue their applications under CPR 31.17 against the various Government departments to whom witness summonses had been directed and against Mr Jackson they swiftly followed with an application under CPR 31.12 (specific disclosure) directed to the Bank as Defendant in the action on the footing that the Bingham archive is or has been in the control of the Bank and should be disclosed by it in the ordinary way. The applications under CPR 31.17 and 31.12 call for disclosure of the entire archive although at the hearing a more limited request was put forward as I have already foreshadowed.
11. The Treasury Solicitor is entitled, as is the Bank, to point to the Claimants’ inconsistency in their approach to the question whether the archive should be disclosed in its entirety (subject to questions of confidentiality and PII) or whether the materials therein should be the subject of a more focused request for disclosure. I can understand why Government departments and the Treasury Solicitor representing their interests should find this inconsistency in approach difficult to deal with. The request for disclosure of materials furnished to and generated by a private inquiry of this nature raises real and not imagined problems. The request for disclosure of the entire archive was unrealistic and unwise. It was a request of an unprecedented nature compliance with which could have far-reaching implications. Furthermore, as will appear hereafter, it can have been no straightforward task to establish where responsibility for the archive lay. I am not surprised that it took time to prepare what was in truth a carefully considered and not unhelpful response. At all events further discussion of the time-scale involved in reaching the stage at which I must decide important issues of principle does not now assist me in their resolution.
12. Thus it is that the first question which I have to resolve is whether the archive is within the control of the Bank. It would be a convenient conclusion that it is. Questions of confidentiality and PII would remain to be resolved but the Bank would have cast upon it a task which it is well-equipped to perform, viz, that of going through the archive and determining what parts of it need to be disclosed as relevant to the issues in the case. I deliberately use the language of relevance as opposed to the language used in CPR 31.6 to describe what is required as standard disclosure. I do so because it has already been accepted that in certain respects disclosure in this case should go beyond standard disclosure, and the Bank is adopting a generous approach to disclosure generally. Indeed, given that the archive is a self-contained, albeit large, body of documents, the Bank might find it easier simply to review it for questions of confidentiality and PII (in which of course they would have to be assisted by the appropriate arm of Government) rather than to attempt a further examination of relevance over and above the fact that the material was evidently thought by its providers or by Bingham LJ to be relevant to the question of supervision into which Bingham LJ was mandated to inquire. However even if the Bank chose to adopt a different approach, having regard to the professionalism of its legal team, their deep knowledge of the issues in the case and the responsibility with which they could be expected to approach their task, I would be confident that if my conclusion were that the archive is in the control of the Bank then, subject to consideration of questions of confidentiality and PII, there would be produced to the Claimants anything from the archive which is relevant to the issues in the litigation. Of course I appreciate that that begs a question as to what is meant by relevant, but in the context of this case I do not think that that would give rise to any problem. What I mean to convey by my suggestion that the Bank could review the archive for relevance is the perhaps obvious point, to which I must return, that on any sensible view there must actually be in the archive much that will simply be of no assistance whatever. The real difficulty which I would foresee would be the practical one that the Bank already faces a formidable task in giving the disclosure which it has undertaken and been ordered to give and that to have added thereto the task of reviewing the entirety of the Bingham archive whether for relevance or for consideration of issues of confidentiality and PII or both might involve a burden inconsistent with preservation of the timetable to which all parties are currently working. All these considerations are however irrelevant to the question whether the Bingham archive is in the control of the Bank. In order to decide the question whether the archive is currently within the control of the Bank I must examine the circumstances in which Bingham LJ was appointed, how he performed his task, and what occurred when his task was completed.
13. Before turning to that question, it is convenient to say a word about the current de facto position.
14. The initial approach was made to the Treasury Solicitor because Mr Jackson had been seconded from that Department to act as Secretary to the Inquiry and because Bingham LJ referred in his covering letter which accompanied delivery of his report to assistance received from other members of the Department. However the Treasury Solicitor as such played, so far as I am aware, no formal role in the Inquiry, other than as a person listed in Annex 1 to the report as having assisted in the manner therein described. As I have already indicated the Treasury Solicitor treated the approach to her as being a request directed to HM Treasury, from whom she thereupon took instructions. HM Treasury and the Treasury Solicitor’s Department are separate entities and the Treasury Solicitor has no automatic right of access to HM Treasury documents. The Treasury Solicitor has said that the archive is the responsibility of HM Treasury and the Treasury have confirmed to the Claimants and the court that they have the necessary control over the archive for the purpose of being made subject to either a Witness Summons or to an order for non-party disclosure. However, the Treasury Solicitor has also said that up until now neither the Treasury nor the Bank have or has had physical custody, control or sight of the archive, although the Treasury Solicitor has conducted a preliminary review of the material in the archive for the purposes of this application. That review and the Treasury Solicitor’s continuing investigation of the archive is being carried out by the Treasury Solicitor on behalf of HM Treasury who obviously regard themselves as having the power to authorise this procedure. Indeed the archive is, in the Treasury Solicitor’s words, the responsibility of HM Treasury. It is evident that whether de facto or de jure HM Treasury have the power to decide who may or may not inspect the archive and who may or may not have physical possession of it. It might be thought academic to attempt further analysis but in the present case it is unfortunately necessary to do so. I would merely record at this stage that it does not in my judgment follow from what I have set out so far that HM Treasury themselves enjoy either a right to possess the archive or a right to inspect it. Whether anyone would wish to attempt to prevent the Treasury from inspecting the Archive is a different question.
15. I should also mention by way of introduction that the Treasury Solicitor has said in correspondence that Mr Jackson has no automatic right of access to the archive. There is no doubt that Mr Jackson once did regard himself as having such a right. The Treasury Solicitor has not ventured a view on the question whether Lord Bingham has an automatic right of access to the archive, although she has observed that both Lord Bingham and his Secretary have, so far as concerns the Inquiry, been functus officio for more than nine years.
16. On the question of public access to the archive I have already set out what the Treasury Solicitor said in her letter of 6 November 2001. She has also said that it is anticipated that the records of the archive will eventually be opened to the public. She has indicated that the exact date of such opening for access is as yet uncertain but will be 30 years for the less contentious material and between 50-75 years for the more sensitive records. I regard this aspect of some considerable importance in seeking to put this application in perspective. The material from the archive which the Claimants are now seeking is, I would expect, for the most part if not exclusively properly to be characterised as the less contentious material. The more sensitive records of which the Treasury Solicitor speaks include information as to criminal conduct, sometimes international criminal conduct, where the safety of those providing the information could be compromised by revelation of their identity. It is not this material which the Claimants now seek. It is already almost 10 years since Bingham LJ delivered his report. On anyone’s time scale it will be 12 years since completion of the Inquiry by the time judgment is given on the issues of liability which are first to be tried. Thus by this application the Claimants are seeking access to documents which it is envisaged will be in the public domain some 18 years or so after judgment is given on the issues to which it is accepted some of them must relate.
17. Although the Public Records Act 1958 provides, by Section 2 (4) E, that the Public Records Office can accept responsibility for the safe keeping of records other than public records in practice the archive has been treated as a set of Public Records and stored as the “Records of a defunct temporary body.” This is not an expression which appears in the Act. The Claimants and the Treasury Solicitor were in agreement at the hearing that it is difficult to fit the archive into any part of the definition of public records contained within the Act. The Bank suggested that the documents might be public records as being “Records of any office, commission or other body or establishment whatsoever under Her Majesty’s Government in the United Kingdom”—Section 2 (1) (b) of the First Schedule to the Act.
18. The first question which I have to decide is whether the Bank is under an obligation to disclose the Bingham archive. CPR 31.8 provides:-

“(1) A party’s duty to disclose documents is limited to documents which are or have been in his control.

(2) For this purpose a party has or has had a document in his control if—

(a) it is or was in his physical possession;

(b) he has or has had a right to possession of it;or

(c) he has or has had a right to inspect or take copies of it.”

CPR 31.3 deals with the right of inspection of a disclosed document. It provides, so far as material:-

“(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…”

It is therefore academic to consider, save as an integral part of the analysis, what rights the Bank may once have had, since it is only present control of the archive by the Bank which will generate an obligation on it to afford inspection of the archive to the Claimants. The archive is not in the physical possession of the Bank. The only question therefore is whether the Bank has a right to possession of the archive or a right to inspect or take copies of it. It is to be noted that ownership is not the touchstone, save in so far as it may be said to give rise to either a right to possession or a right to inspect. In this unusual situation it by no means follows that ownership of itself gives rise to either a right to possession or a right to inspect. Under the old rules discovery was required of documents within “the possession, custody or power” of a party in which context the expression “power” meant “a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else”—see per Lord Diplock in Lonrho Ltd-v-Shell Petroleum Co Ltd 1980 1 WLR 627 at 635. I take it that the word “right” is used in that sense in CPR 31.8.

19. On 5 July 1991 on petition by the Bank the court appointed three partners of Messrs Touche Ross to be joint provisional liquidators of BCCI SA. At 2pm on the same day the Luxembourg authority, the Institut Monetaire Luxembourgeois, hereinafter “the IML,” was appointed interim “commissaire de surveillance” and on 8 July 1991, on the request of the IML, Mr Brian Smouha was appointed by the District Court of Luxembourg to be commissaire de surveillance of BCCI SA. Parallel action was taken on 5 July 1991 by the Governor of the Caymans in relation to BCCI Overseas and other related companies incorporated there.
20. On 8 July 1991 the Economic Secretary to the Treasury informed the House of Commons of the action taken by the Bank and by the supervisory authorities in other jurisdictions to secure control of the assets of the BCCI Group. Questions were put to the Economic Secretary in the course of the debate on the Finance Bill the following week. The Governor of the Bank met a number of Members of Parliament to explain the background of and reasons for the action and the Chancellor of the Exchequer met a group of concerned Members led by Mr Keith Vaz the Member for Leicester East to discuss the matter. Private investors, businesses and local authorities faced the prospect of serious losses. The collapse of BCCI was a matter of grave concern and great public interest. Questions were asked of the Prime Minister at Question Time and the Leader of Her Majesty’s Opposition wrote to the Prime Minister calling for an inquiry.
21. It was recognised at the very highest level that there would have to be an inquiry into the role played by the supervisory authorities. On the morning of Friday 19 July 1991 the Governor was informed, first, by the Chancellor of the Exchequer, that the Government had decided that there should be an inquiry into the collapse of BCCI and, second, by the Permanent Secretary to the Treasury, that the decision to hold an inquiry had been made by the Prime Minister and the Chancellor. The Governor acquiesced in that decision. The Chancellor told the Governor that the Government had not yet decided upon the form and timing of the inquiry or upon who should conduct it.
22. At 2.30 on the afternoon of 19 July 1991 the Chancellor of the Exchequer announced in the House of Commons that there was to be an inquiry. The Chancellor said this:-

“….. in the light of widespread public concern, the Governor and I have agreed that there should be an independent inquiry into the supervision, under the Banking Acts, of the Bank of Credit and Commerce International, to establish the facts and to make such recommendations as arise from them.

The report will be made public subject to such restrictions as may be needed to avoid prejudicing any criminal proceedings and subject to the provisions of the Banking Act.

I will announce shortly the precise terms of reference of the inquiry and who will conduct it.”

Although the Chancellor there referred to the agreement of the Governor, the fact that the decision had been made by the Government was emphasised by the Chancellor in his response to a question asked of him by Mr Gordon Brown MP. He added, in response to a question from Mr Terence Higgins MP:-

“As for the type of inquiry, I have not yet decided under what powers the inquiry will be conducted. Of course, that affects whether or not the proceedings will be held in public. I will report to the House on that matter.”

23. On Monday 22 July 1991 the Chancellor of the Exchequer wrote to Bingham LJ to invite him to undertake the inquiry. The Governor was not consulted about this invitation. It was the decision of the Government that it would be appropriate that the inquiry should be conducted by a judge and it was likewise the decision of the Government to approach Bingham LJ. The Chancellor’s letter to Bingham LJ read as follows:-

“INQUIRY INTO THE SUPERVISION OF THE BANK OF CREDIT AND COMMERCE INTERNATIONAL (BCCI)

We discussed this morning the possibility of your undertaking the inquiry into the supervision of Bank of Credit and Commerce International (BCCI) which I announced in the House of Commons on 19 July.

The purpose of this letter is to invite you formally to undertake this inquiry. The terms of reference will be:

“To enquire into the supervision of BCCI under the Banking Acts; to consider whether the action taken by all the UK authorities was appropriate and timely; and to make recommendations.”

The inquiry will be carried out on behalf of the Treasury and the Bank of England. It will be non-statutory, and the proceedings will take place in private. The results of the inquiry will be made public as far as that is possible without prejudicing possible criminal proceedings arising out of the SFO’s inquiry, and taking account of the confidentiality provisions of the Banking Act. The recommendations will be made public

You agreed to undertake the enquiry on these terms, for which I am very grateful. It has been agreed that support for the enquiry will be provided by the Treasury Solicitors Office.”

24. There is no evidence before me on the basis of which I could conclude that the Governor was aware that Bingham LJ was to be asked to carry out an inquiry on behalf of the Bank. It was only some days later that the Bank, as a result of enquiries made by their solicitors Messrs Freshfields of the Treasury Solicitor, learned why it was that it had been decided by the Government that Bingham LJ should be asked to carry out the inquiry on behalf of the Treasury and the Bank. First, the Government had decided against a statutory inquiry. So Bingham LJ required an appointor. Second, there was a concern arising out of Part V of the Banking Act 1987. Section 82 of that Act imposed a restriction on the Bank as to the disclosure of information relating to the business or affairs of any person. The Bank was not permitted to disclose any such information received by it under or for the purposes of the Act without the consent of the person to whom it related and, if different, the person from whom it was received. The Act was at the time the source of the Bank’s supervisory powers. The concern was therefore that the Bank might be prohibited from disclosing information to Bingham LJ should he be appointed to conduct the inquiry on behalf of the Treasury alone. Section 83 of the Act permitted disclosure for the purpose of enabling or assisting the Bank to discharge its functions under the Act. It was thought that appointment of Bingham LJ on behalf of the Bank would open up to the Bank the gateway to disclosure afforded by Section 83. Hence the decision that Bingham LJ be asked to carry out the inquiry on behalf of the Treasury and the Bank.
25. The appointment of Bingham LJ was announced to the House of Commons by the Prime Minister on the afternoon of 22 July 1991. In answer to a private notice question from Mr Neil Kinnock MP the Prime Minister said this:-

“My right hon. Friend the Chancellor of the Exchequer made a statement to the House on Friday and indicated that the Government will commission an independent inquiry into precisely those matters. I am now able to tell the House that the inquiry will be undertaken by Lord Justice Bingham, and that the terms of reference will be as follows:

To inquire into the supervision of BCCI under the Banking Acts; to consider whether the action taken by all the United Kingdom authorities was appropriate and timely; and to make recommendations.

All the matters that the right hon. Gentleman raised today will be covered in Lord Justice Bingham’s inquiry. He will have access to all relevant papers, officials and Ministers. Nothing and no one will be held back. I assure the House that any relevant matter of any sort will be made public.”

It is to be noted that the Prime Minister referred to an inquiry commissioned by the Government, making no reference to any involvement of the Bank in the appointment of Bingham LJ. A little later, in answer to a supplementary question, the Prime Minister said this:-

“All evidence, all people—including Ministers and myself—will be answerable to that inquiry. I shall publish the inquiry, and then answer for it to this House.”

26. The Bank was not consulted about the basis on which Bingham LJ was to be invited to conduct the inquiry nor as to the form or timing of the inquiry. The Government and/or Bingham LJ took all the decisions concerning the nature of Bingham LJ’s appointment, the basis on which the inquiry was to be conducted and the procedure which the inquiry would follow. Similarly, the Bank was not consulted about the decisions concerning the administration of the inquiry and its procedural arrangements. Neither before nor after the appointment of Bingham LJ by the Chancellor did the Governor or anyone on his behalf indicate either to the Government or to the Inquiry that the Bank wished to have any right to physical possession of any documents created by or received by the Inquiry or a right to inspect any of them either during the lifetime of the Inquiry or after its conclusion or that the Bank considered that it had such rights. On the contrary, it never occurred to the Governor that the Bank had or should have any such right.
27. Premises for the Bingham Inquiry were provided by the Government in the offices of the Treasury Solicitor’s department. In addition, the Government provided by way of secondment the services of Mr Richard Jackson, a solicitor in the Treasury Solicitor’s department, who became Secretary to the Inquiry.
28. Bingham LJ was given by Her Majesty’s Government a written indemnity in respect of his conduct of the Inquiry. The Bank gave no indemnity to Bingham LJ. The direct costs of the Inquiry were shared equally between Her Majesty’s Treasury and the Bank.
29. On 1 August 1991 Bingham LJ made a public statement confirming the terms of the Inquiry. That statement read:-

“I have accepted an invitation extended to me by the Chancellor of the Exchequer on behalf of himself and the Governor of the Bank of England to undertake an Inquiry into the supervision of the Bank of Credit and Commerce International (“BCCI”). The Inquiry’s terms of reference are:

“To enquire into the supervision of BCCI under the Banking Acts; to consider whether the action taken by all the U.K. authorities was appropriate and timely; and to make recommendations.”

The Inquiry will be carried out on behalf of the Treasury and the Bank of England. It will be non-statutory and the proceedings will take place in private. The results of the Inquiry will be made public subject to such restrictions as may be needed to avoid prejudicing any criminal proceedings and subject to the provisions of the Banking Act 1987.

The Inquiry is seeking assistance from the parties most directly involved in the supervision of BCCI but I am concerned to ensure that all reasonable lines of enquiry are pursued and to that end written submissions and evidence are invited from any party or member of the public with an interest in the subject matter of this Inquiry.

I must stress, however, that the Inquiry cannot deal with matters which relate to the Deposit Protection Scheme set up by the Banking Acts, or the recovery of deposits with BCCI generally, or other matters outside its terms of reference.

A statement of the procedure proposed to be followed during the Inquiry has been issued and a copy will be sent to all parties responding to this invitation.”

The statement of procedure referred to in the last paragraph was also dated 1 August 1991. That reads:-

“The following sets out the important procedural steps which the Inquiry proposes to follow.

1. An invitations is being extended to the public at large inviting written submissions and evidence.

2. Written evidence and documents are being and will be sought from the Bank of England, the Treasury and others who may be able to give evidence relevant to the Inquiry’s terms of reference.

3. Selected witnesses will thereafter be invited to give oral evidence.

4. Oral evidence will be given in private. Any witness who wishes may be accompanied by a solicitor or counsel, as may his or her employing body or department. Witnesses will be questioned by Lord Justice Bingham and legal representatives will be given the opportunity to re-examine. No oath will be administered. A shorthand note will be taken of evidence given, which will be transcribed and a copy of the transcript supplied to the witness, who will be invited to correct, modify or elaborate any answers recorded.

5. Copies of the transcript of evidence given by one witness will not ordinarily be shown to other witnesses or departments save where it is necessary in the interests of fairness or adequate enquiry that one witness should know what another has said.

6. Provisional findings of fact will be disclosed to the subjects of them, who will be given the opportunity to suggest corrections or modifications. In particular, any individual or department which may be criticised, or upon whom the findings might be thought to reflect unfavourably, will be given a full opportunity to challenge criticisms and rebut adverse findings of fact before any final conclusion is reached.

7. It is fully appreciated that much of the material the Inquiry will have to consider will be, for different reasons and to varying extents, confidential. Since the Inquiry is required to report, no blanket undertaking of confidentiality can be given. Those submitting documents and giving evidence are, however, invited to indicate (if possible in advance) areas claimed to be confidential, with grounds for the claim where these are not obvious. Where satisfied that a claim is well-founded, the Inquiry will respect such claim so far as the law requires or its duty to report permits.”

When Bingham LJ wrote to persons asking for their assistance he enclosed copies of these documents, emphasised that the proceedings would be in private and drew attention to paragraph 7 of the Statement of Procedure. He went on:-

“The Inquiry is most anxious to obtain all relevant evidence on matters falling within its terms of reference and I would greatly appreciate any information which you felt able to provide.”

30. The Bank was the principal party being investigated by the Bingham Inquiry. All the dealings between the Bank and the Bingham Inquiry were at arm’s length. During the course of the Inquiry Bingham LJ or the Secretary on his behalf controlled all access to documentation. The Bank did not sit in on interviews with non-Bank witnesses, and when the Bank was shown excerpts from transcripts or submissions by third parties it was in circumstances and on terms decided by the Bingham Inquiry, not by the Bank.
31. During the Inquiry the Bank did not consider that it had any right to call for the inspection or copying of any material in the Bingham Archive and it did not seek to do so. Any such right would have been wholly inconsistent with the statement of procedure and the basis on which the Inquiry was conducted.
32. Bingham LJ’s report was delivered to the Chancellor of the Exchequer and to the Governor on 27 July 1992.
33. Consistent with the basis on which the Inquiry was established and conducted the decision whether to publish the conclusions of the Inquiry and if so in what form were also decisions made by the Government and not by the Bank. The Prime Minister and the Chancellor of the Exchequer had already committed the Government to publication of the conclusions. In fact Bingham LJ’s report was published under the Parliamentary Papers Act in the House of Commons on 22 October 1992 by motion of the Chancellor of the Exchequer after which it was printed. Making his announcement to the House of Commons the Chancellor said this:-

“Lord Justice Bingham had access to all the material that he needed from the Government and the Bank. Nothing was withheld. Much of the evidence was confidential and the inquiry was held in private to avoid any prejudice to criminal proceedings and to encourage witnesses to give evidence.

Since receiving the report, I have had to weigh carefully the public interest in maintaining that confidentiality against the public interest in disclosure. After taking legal advice, I have concluded that the balance lies firmly in favour of publishing Lord Bingham’s report unamended and in full but without the supporting appendices.”

I should mention that there are in fact 8 appendices. Appendices 1-7 deal in detail with the role played by the United Kingdom authorities, principally the Bank, whose supervisory role is dealt with at great length in Appendix 1. Appendix 8 deals with the involvement of the Intelligence Agencies. Appendices 1-7 have been disclosed to the Claimants by the Bank. Appendix 8 has now been seen by the Bank’s legal advisors after security clearance had been obtained for them to inspect the material. They have advised that Appendix 8 is relevant and should be disclosed, subject to questions of public interest immunity on which they await guidance from the Treasury Solicitor as to the extent to which objection to disclosure is to be made.

34. At the conclusion of the Inquiry the Bank was asked to certify that all copies made from an original draft of the Inquiry’s report (or of extracts therefrom) supplied by the Inquiry, together with that original copy had been destroyed or were returned with the certificate. In responding to this request Mr Trundle of the Bank took the opportunity by letter of 12 August 1992 to Mr Jackson to make the following observations:-

“I should like to take the opportunity to establish the Inquiry’s intentions as to the records it has accumulated. These, I imagine, include contemporaneous notes of relevant events submitted by witnesses, written submissions and transcripts of oral evidence, bundles prepared for witnesses and your own working papers and drafts.

Many of these documents will either be Bank of England documents (usually covered by section 82 of the 1987 Act and therefore confidential without time limit) or relate to the Bank. I have a number of questions about the procedures you intend to follow (and I am aware you have indicated to Stephen Bland the likely responses to some of these questions):

1. Which of these records will be kept and for how long?

2. Where and in what form will they be kept?

3. Who will be responsible for their physical security?

4. Who will have access to the various categories of document? If, for example, your answer is only yourself (and Lord Justice Bingham?), who would have responsibility in your temporary absence or if you were to leave the Treasury Solicitor’s office?

5. Is it envisaged that the documents will be transferred to the Public Records Office. If so, when and with what restrictions?

I look forward to your response.”

35. Mr Jackson replied to Mr Trundle on 17 August 1992 as follows:-

“As to your five questions:

1. One (relatively) complete set of all the Inquiry’s papers is currently retained by me. Subject to, and in conjunction with, the views of yourselves, the Treasury and the Public Records Office, I propose to review the papers after any publication from the Report, probably in the New Year.

2. The papers are currently held here at the offices of the Treasury Solicitor under combination lock. Long-term storage is a matter for discussion between the interested parties.

3. I am and, at least for the foreseeable future, will be responsible for the physical security of the papers.

4. Only I know the various combination numbers for the cabinets. A duplicate set of numbers is held (unseen) by the Treasury Solicitor’s security officer. Only in an emergency, and for a very good reason, should he be contacted in my absence for access to the papers.

5. This is a matter for interested parties to discuss and agree upon in the light of legal and other requirements.

I would welcome advice and comment from interested parties as to the long-term custody of the Inquiry’s papers. I am sure that the Public Records Office will have a key role to play. Clearly, because of the confidentiality of much of the information and documents, important questions arise as to whether the Bank and the Treasury ought to have full access to the papers. Perhaps a four-way meeting after any publication would assist.

I am sending a copy of this letter, and of yours, to David Loweth at the Treasury”

36. The suggested four-way meeting took place at the Treasury Solicitor’s office on 11 November 1992. There were present Mr Jackson in the Chair, Mr Rippon from the Bank, Mrs Flint of the Banking and Mutual Institutions Division of the Treasury, and Mr Edwards of the Public Records Office. Barbara Bugden was also present. I believe that she was at the time the Departmental Record Officer at HM Treasury. Mr Rippon may have understood her to come from the Public Records Office, but nothing turns on this.
37. There are three contemporary notes of this meeting and a number of more or less contemporary notes or letters which bear on the content of the meeting. The Bank’s material, with one exception, was exhibited to a Witness Statement served on 26 April, 11 days or so before the hearing. The other material emerged piecemeal during the hearing. Mr Pollock Q.C. for the Claimants was deeply critical of the speed and enthusiasm with which the Treasury Solicitor had dealt with their requests for information as to the arrangements made concerning the archive after Bingham LJ had completed his Inquiry. Mr Pollock was particularly critical of the second Witness Statement of Mr Jonathan Morris of the Treasury Solicitor’s department which was written largely in the passive voice, failed to indicate sources of information and belief and failed to exhibit the source documents which could shed real light on what had happened ten years ago and which turned out to be the documents on which the relevant paragraphs of the witness statement were based. I do not doubt that those working in the Treasury Solicitor’s department face a formidable work load and that they must have to deal with many matters of more pressing urgency and apparent importance than the fate of an archive of documents which has been gathering dust for at least ten years. As I have already indicated the Treasury Solicitor is entitled to point to the fact that the Claimants have not been consistent in their requests for disclosure of the archive, and entitled also to point out that, as I have again already indicated, disclosure of material from the archive raises issues of far-reaching importance, far transcending the issues in this case. Even so it has to be said that the second Witness Statement of Mr Morris fell short, by an appreciable margin, of what the parties, and the court, were entitled to expect. Little is to be gained from dwelling on this unhappy episode, particularly as much of the hearing was devoted to a debate as to a sensible way forward in recognition of the fact that there are in the archive documents which are likely to be disclosed to the Claimants, a debate to which the Treasury Solicitor through Mr Hollander QC made a most helpful contribution.
38. Because of the importance of the contemporary notes as to the 11 November 1992 meeting I must reproduce them in full. Mr Rippon’s note for the record dated 16 November 1992 reads as follows:-

“BINGHAM INQUIRY’S DOCUMENTS

1 I attended a meeting at the Treasury Solicitor’s Office on 11 November to discuss the future of the Bingham Inquiry’s documents (which include a substantial volume of paper originally supplied by the Bank which is confidential under the Banking Act). Also present were Mr Jackson (T Sol) in the chair, Mrs Flint (HMT) and two representatives of the Public Record Office. Discussion centred on whether the documents could be moved to the Public Record Office from T Sol, about access and security arrangements and about the future release into the public domain (bearing in mind the ’30 year rule’).

2. I made the following points –

(i) I thought it undesirable that the documents should be passed into the physical custody of the Bank or HMT, given that this might undermine the perception that the Inquiry was independent. This was also HMT’s firm view.

(ii) Any attempt to seek disclosure of the documents (in litigation) would probably be easier to resist if control of the documents remained in independent hands (ie those of T Sol).

(iii) Ultimately it was a decision for HMG (and particularly HMT), and not the Bank, to decide how the documents should be dealt with. It was important to remember that many of the documents were confidential under the Banking Act and that the Bank had no gateways or powers under the Banking Act to allow their disclosure for custody or archive purposes to third parties such as the Public Record Office. HMG had to consider therefore whether it could allow such disclosure bearing in mind the arguments relating to the balancing exercise and the publication of the Bingham Report. HMT would also have to consider the implications of the confidentiality provisions of the Second Banking Directive.

(iv) HMG would also have to take account of Banking Act and EC Directive confidentiality requirements in deciding whether to allow certain Inquiry documents to go into the public domain in 30 plus years time.

(v) The Bank would wish to be consulted about any proposals to release to third parties (including Government departments) documents or information which it had provided to the Inquiry.

(vi) Jackson should try to ensure that any future recipient of the documents was fully alerted to the possible confidentiality constraints attaching to them – by suitable written warnings and labelling.

3. Jackson accepted the force of these points without difficulty. He thought that it might be desirable to set up a committee of interested parties to meet or exchange views whenever questions of access to the documents arose. I said that I saw considerable merit in this. I saw the committee as essentially consultative in nature as only HMG could make the decisions on the disclosure of documents.

4. It was agreed that the Public Record Office people would consider the options further and write to Jackson (copied to Mr Flint and myself) to set out their proposals for archiving and access.”

39. Mr Edwards prepared a note for his superior dated 8 December 1992. That note reads:-

“INQUIRY INTO THE SUPERVISION OF THE BANK OF CREDIT AND COMMERCE INTERNATIONAL (BCCI)

We spoke about this briefly.

As you know, the report of Lord Justice Bingham was published a few weeks ago. He reported to the Chancellor of the Exchequer and the Governor of the Bank of England. The records of the inquiry are in the custody of the secretary, Richard Jackson, in Queen Anne’s Chambers. He is a solicitor in the Treasury Solicitor’s department but the records have nothing to do with the TS.

I discussed the records with Jackson at the time the inquiry was set up and it was clear, even then, that there would be many records of a commercial and banking nature that would be unlikely to be released after 30 years. You will know that although the published report is fuller than some people expected, a great part of it has not been published. Potential litigation also affects current confidentiality.

I arranged a meeting on 11 November to discuss the status of the records and what should be done with them. Present were;

Richard Jackson,

Barbara Bugden,

Susan Flint of the Banking and Mutual Institutions Div. Of the Treasury,

John Rippon of the Bank

and myself.

It was agreed that the records were public records and that the Treasury, in right of the Chancellor as well as being the usual recipient of “homeless” public records, was mainly concerned in their preservation.

It was, however, stated emphatically by both the Treasury and the Bank that neither of them would give custody to the records. They both wanted their institutions to be able to say truthfully, if challenged, that they had never had access to them. Storage of the records in the Treasury building or in the Bank, even if they were locked securely away, would prejudice their ability to say that convincingly.

The meeting agreed, therefore, that the best course would be for them to remain temporarily in the custody of the secretary and for him to transfer them to the PRO as soon as possible.

It was agreed that control of access to the records was a function of the secretary, but that ultimately the responsibility would devolve on the Treasury. In the medium term, however, it was suggested that there should be a joint Treasury/Bank of England committee, including the secretary while he continued to be available, to have oversight of access to the records.

We spoke and agreed that BS was the best home for these records.

May I have your agreement to the proposals above please; in particular that relating to the committee?”

Mr Edward’s superior appears to have indicated his assent by a manuscript notation which is however incompletely copied on my version of the document.

40. Mr Jackson had made a very brief manuscript note, possibly at the meeting itself. That reads:-

“11.11.92 Meeting at QAC

Cliff Edwards

DRO-HMT

Susan Flint

John Rippon

—RJ to find letter undertaking to return Agency material.

—RJ to send further source material back to B/E

—?Set up Committee e.g. 2 from HMT/2from B/E and RJ to decide on access and transfer of material to HMT.”

41. Also of importance is Mr Rippon’s letter to Mr Jackson of 19 November 1992. That reads:-

“I found the meeting last week about the future of the Inquiry’s documents very helpful, and I look forward to seeing in due course the Public Record Office’s proposals for future custody, security, access and disclosure arrangements.

For the meantime, it may assist you if I recorded a few key considerations from the Bank’s perspective which I think should be borne in mind-

1. We agreed that it is important that control of the documents remain in ‘independent’ hands, such as those of yourself (as Secretary to the Inquiry) or the Treasury Solicitor’s Office. It seems desirable also that custody remains in ‘independent’ hands.

2. As you know, the documents contain a considerable amount of information which is confidential under the Banking Act. It is important that all such documents are appropriately labelled to alert recipients and holders of the documents to possible constraints on disclosure.

3. You and the Treasury will, of course, have to consider carefully the basis on which documents or information which is confidential under the Banking Act can be disclosed to third parties, including other government departments and the Public Record Office. Presumably you and the Treasury will take account here of the arguments which lay behind the decision to publish the Bingham Report through Parliament and the various elements in the balancing exercise.

4. As you appreciate, you and the Treasury will also have to consider the implication (if any) of confidentiality provisions in EC Directives, including Article 12 of the amended First Banking Co-ordination Directive.

I am copying this letter to Susan Flint (HMT).”

42. On 1 December 1992 Mr Jackson wrote to Mr Edwards. The material part of the letter reads:-

“….. As to the long term control and disposal of the Inquiry papers, I understood that you would set out your views in the light of the suggestions made at the meeting on 11 November. The key suggestions was for a Committee to be established, perhaps having two representatives from the Treasury with two representatives of the Bank of England and myself. The Committee would control access to the papers for the foreseeable future. I should be interested to learn of your considered reaction to this proposal.

Turning to the physical location of the Inquiry papers, for a number of reasons I would like this to be resolved before the end of the month. The most convenient time for me to review the papers with you would be during the period 29-31 December. I am not in the office between 17 and 28 December. I would imagine that half a day would be sufficient for the review.

I look forward to hearing from you.”

43. Mr Edwards replied on 9 December 1992, enclosing a copy of his note of the 11 November meeting. His letter reads:-

“I promised you a note of our meeting with the Treasury and the Bank on 11 November; I have discussed its recommendations with the Head of Government Services Division here. He is content with the proposals.

It was agreed at the meeting that control of access to the records was your function as Secretary to the Inquiry, but that ultimately the responsibility would devolve on the Treasury. In the medium term however, it was suggested that there should be a joint Treasury/Bank of England committee, including yourself while you continue to be available, to have control of access to the records.

It was also agreed that it would not be appropriate for the Treasury or the Bank to have physical custody of the records and that the best course was for you to deposit them in the Public Record Office as soon as possible. We shall arrange details of that between us.

We have decided here that it would be appropriate to place the Inquiry records in the record group called Records of Defunct Temporary Bodies, so disassociating them from any particular government department.

Copies of this letter go to Susan Flint and Barbara Bugden at the Treasury and John Rippon at the Bank.”

44. On 15 December 1992 Mr Jackson sent a Memorandum to the Deputy Treasury Solicitor Mr Hogg and to Mr Hollis a member of the Department. It reads:-

“1. The Public Record office, in consultation with myself, the Treasury, PRO and the Bank of England, has proposed that the Inquiry papers be moved to the PRO at Kew early in the new year. Control of and access to the papers will be vested in a Committee comprising representatives of the PRO, Treasury and Bank. I shall also be a member of the Committee and, at least for the immediate future, will be the only person (other than, of course, Sir Thomas Bingham) with unrestricted access to the papers. These arrangements will be kept under review. It has been found necessary to proceed in this way because a great deal of the documentation in the Inquiry’s papers is confidential to the Inquiry and it would not be appropriate for any Government Department or the Bank of England to have access to everything, at least for the foreseeable future. I trust that these proposals do not cause either of you any particular difficulties.

2. My last day in this office is 31 December and I shall ensure, before then, that the Inquiry’s papers are in a form ready for the transfer to the PRO. Specifically, Cliff Edwards of the PRO and I will spend the morning of 29 December reviewing the papers. As soon as the papers have been transferred, this will release the eight combination lock filing cabinets and will give unrestricted access to the room housing them.

3. Please let me know if either of you (or anyone else) wishes to discuss this. Ann Corbishley is aware, in general terms, of what is proposed.”

45. On 30 December 1992 Mr Jackson wrote materially identical letters to Mr E A V George, the Deputy Governor of the Bank and Mr J Gieve at HM Treasury. So far as material that letter reads:-

“Your may have heard from John Rippon that, in conjunction with the Treasury and the Public Records Office, consideration has been given to the long term security of the Inquiry’s papers. It has been decided to set up a committee to have control of access to the records. At least for the time being, only I and Sir Thomas Bingham will have unrestricted access to the Inquiry papers which will shortly be transferred to the PRO at Kew.

Finally, I should be grateful if you and your colleagues at the Bank would note that as from 11^th January 1993 I am transferring from the Treasury Solicitor’s Office to the Legal Secretariat to the Law Officers. This change of post does not affect my responsibilities in respect of the BCCI Inquiry.”

46. On 7 January 1993 Mr George replied to Mr Jackson. So far as material his reply reads:-

“Thank you for your letter of 30 December about the arrangements for controlling the future access to the records of the Inquiry. We are, of course, content with the committee proposal, and look forward to hearing in due course of your thoughts on its precise composition and modus operandi.”

47. On 2 September 1992 a meeting took place between, amongst others, Mr Christopher Morris, one of the joint liquidators of BCCI SA appointed by the English court, Mr Brian Smouha, one of the liquidators of BCCI SA appointed by the Luxembourg court, Rachel Lomax of HM Treasury and Mr Brian Quinn, an Executive Director of the Bank. At that meeting, Mr Smouha stated that the liquidators would do whatever was thought likely to give the best prospects of compensation to creditors. On 5 November 1992 there was a further meeting between amongst others Mr Christopher Morris and Mr Smouha, the Economic Secretary to HM Treasury, and two other persons from the Treasury. Mr Smouha referred to the fact that the liquidators were actively investigating the possibility of claims against Her Majesty’s Government and/or the Bank in respect of the collapse of BCCI. Mr Pollock suggested that the notes of the 11 November meeting, particularly Mr Rippon’s note, demonstrated that within days of these intimations from the liquidators the Bank was attempting to distance itself from documents which it admits to be relevant to these proceedings. Mr Croall, one of the Bank’s solicitors, in his Witness Statement prepared for this hearing says this concerning paragraph 2 (ii) of Mr Rippon’s note:-

“42. In relation to Mr Rippon’s comment at paragraph 2 (ii) of his Note for the Record, I am informed by him that in making the comment recorded in paragraph 2 (ii) of the Note he did not have specifically in mind the prospect of disclosure being sought from the Bank in litigation against it of documents emanating from the Bank. The originals (or copies) of relevant documents retained by the Bank would fall to be disclosed by the Bank in any event. Rather, Mr Rippon assumed that the Bingham Inquiry documents were likely to include a wide variety of confidential documents emanating from a wide variety of sources whose confidentiality the Inquiry would be concerned to protect. If disclosure of such documents was sought from the Inquiry while they remained in its possession, the Inquiry would be in a position to seek to protect the confidentiality. If the documents were to be transferred from the possession of the Inquiry upon its conclusion, the confidentiality would be likely to be more capable of being protected if they were to remain in independent hands.”

48. I have not of course heard oral evidence or witnesses cross-examined on this application. I am bound to say however that I do not read anything sinister into this sequence of events. Confidentiality of documents, both under the Banking Act and more generally arising out of the form and conduct of the Inquiry, was a matter of real, genuine and obvious concern, particularly so soon after completion of the Inquiry when proceedings, criminal as well as civil, were either pending or mooted in various jurisdictions. The Bank had not hitherto had, or sought, access to confidential or indeed to any material generated by the Inquiry other than that which it had itself supplied or which had been sent to it by the Inquiry for comment. It seems to me that it was both consistent with the basis on which the Inquiry had been established and had proceeded and natural and proper that the Bank should now wish to emphasise the importance of control of the documents remaining in independent hands. It shines through the documents generated by Mr Rippon at the time that he did not consider that the Bank enjoyed any right of access to the documents and that he considered that HM Government alone had the power and the responsibility to decide what to do with them. I think Mr Rippon’s view, in common with all those who attended the meeting, was that, leaving aside the question whether those at the meeting had the power to bring it about, it would be wholly inappropriate for the Bank to have access to the documents, other than those which it had supplied or which had been sent to it by the Inquiry, a view adumbrated by Mr Jackson in his letter to Mr Trundle of 17 August 1992. Mr Rippon was I think doing no more than expressing his concern that nothing should be done which would imperil the confidentiality of the documents, or compromise the integrity of the Inquiry and the position of the Bank. No doubt Mr Rippon’s note as written is open to a sinister interpretation but when seen in context with the other notes and material I do not think that it fairly deserves it.
49. Before turning to analyse the position which obtained I shall finally mention the role played by Bingham LJ himself in the arrangements for dealing with the archive after he had completed his work by delivering his report to his appointors. The documents to which I have already referred are strongly suggestive, by their silence, that Bingham LJ was simply not consulted about the process which began with Mr Trundle’s letter to Mr Jackson of 12 August 1992. Mr Jackson evidently assumed that as at 15 December 1992 Bingham LJ had unrestricted access to the papers, should he wish to exercise it, but it is clear that Bingham LJ played no part in the decisions taken concerning custody of and control of access to the archive. That position has been confirmed by Lord Bingham in a letter to the Claimants’ solicitors dated 18 March 2002 which reads:-

“I have received your letter of 13 March 2002.

Since I delivered my report on the supervision of BCCI to the Chancellor of the Exchequer and the Governor of the Bank of England in July 1992, I have had nothing whatever to do, whether formally or informally, with the subject matter of the report or the litigation which has followed. I retained no papers (except an incomplete copy of the report) and had nothing to do with the disposal of any of the documents which the enquiry had accumulated. I have no personal knowledge of what became of the documents, which are certainly not in my possession or within my control.

I have of course no wish to obstruct in any way the ordinary processes of disclosure, but I have no role in the matter. I am rather surprised that you should have written to me.”

In subsequent correspondence Lord Bingham confirmed that he recalls no discussion or correspondence about the documents accumulated by the Inquiry when it came to an end, he has no recollection of reserving access to the Inquiry’s documents and he has not resorted to them for any purpose. Lord Bingham has not been involved in the making of any decisions on such questions as have arisen in the light of the handful of requests which have over the years been made for inspection or for a copy of particular archive documents. He was consulted in November 1993 concerning a particular request, as I shall mention hereafter, but by his reply made clear that he did not wish to be involved in the making of decisions concerning such requests.

50. Mr Pollock’s argument on the question of current control of the archive is very straightforward. He submits that the starting point is to ask who owned the archive at any given time. In the absence of any contrary indication the right to possession and control will ordinarily follow ownership. It is not suggested that there was any statutory or public law basis for the establishment of the Inquiry. It was essentially a private Inquiry conducted at the instigation of the two appointing parties on terms that the results would be made public. Insofar as it matters, the relationship between Lord Bingham and those who invited him to conduct the Inquiry can only be analysed in terms of contract. Mr Pollock points out that the Inquiry had no legal personality. It was carried out by a single individual, namely Lord Bingham. The role of Mr Jackson, was merely to assist Lord Bingham, as was that of Messrs Robinson and Watt, his expert assessors in the field of banking and accountancy. It was the mutual intention of the appointors and Lord Bingham that Lord Bingham should be and should be seen to be independent of both the Treasury and the Bank. Again insofar as it matters Lord Bingham was in law an independent contractor commissioned to prepare a report for delivery to his appointors rather than the servant, agent or delegate of those who had appointed him. Mr Pollock accepts that it was necessarily implicit in these arrangements that the ownership of documents obtained or created by or on the instructions of Lord Bingham, any transcripts or notes of evidence to the Inquiry, and Lord Bingham’s own notes and working papers vested in Lord Bingham. Mr Pollock also accepts that it was implicit that neither of the appointing parties could require Lord Bingham to disclose or to deliver up any of these documents at any rate for so long as the Inquiry was pending. He accepts that any other analysis would be inconsistent with the mutual intention that the Inquiry be wholly independent. Lord Bingham completed his contractual obligations by delivering his report to his appointors. As of that moment, submits Mr Pollock, the ownership of the documents accumulated by the Inquiry remained in Lord Bingham. It is unnecessary to debate what might be the position if Lord Bingham had chosen to retain the documents because Lord Bingham has made it quite clear that he did not retain the papers and that he had no intention of retaining any control over them. Mr Pollock submits that as owner of the Inquiry documents Lord Bingham had it in his power to divest himself of ownership, and therefore control, of them. Mr Pollock accepts that it is clear that Lord Bingham intended to and has divested himself of control of the documents, so that the only question is to whom did ownership, and therefore control, of the documents pass? Mr Pollock submits that once Lord Bingham made clear that he wanted nothing more to do with the documents the only inference to be drawn is that he intended the ownership of the documents to pass to those who had appointed him. It would only be otherwise if Lord Bingham had requested or required the documents to be transferred to somebody else. This is not suggested. Mr Pollock submits therefore that in or shortly after July 1992 Lord Bingham divested himself of ownership, and therefore control, of the archive in favour of his appointors, namely the Treasury and the Bank. Mr Pollock goes on to submit that the evidence as to what became of the archive after Lord Bingham reported does not support the conclusion that either the Treasury or the Bank irrevocably divested themselves of the ownership and control of and access to the archive which they had thus acquired. Mr Pollock submits that the fact that in early 1993, well after Lord Bingham divested himself of control of the archive, the Bank indicated that it was content with the proposal that control of the archive be vested in a committee of which it was a member is clear evidence that it had retained and had intended to retain control of the archive. In summary I am invited by Mr Pollock to conclude that the archive is within the ownership and therefore the control of the Bank and the Treasury jointly. I am further invited to conclude that nothing which the Bank said or did after July 1992 was effective to deprive the Bank of an entitlement to inspect the archive.
51. Control is the touchstone under CPR 31.8 but only relevantly where it means a right to possession or a right to inspect. In my view in the unusual circumstances of this case the right to possession and the right to inspect do not necessarily follow ownership. Mr Pollock accepts that the normal result that possession and control follow ownership yields to contrary indication. Here there is ample indication that neither the Treasury nor the Bank were ever intended to have either possession or control of the documents. If either or both of them has unwittingly acquired ownership of the archive, which is itself an ex post facto rationalisation of a process which no-one can at the time have appreciated had that result, it is wholly unnecessary and inappropriate to conclude that they thereby at the same time acquired possession or control, those being the two incidents which all agreed were not to pass to them. There was thus the clearest manifestation of intention that neither possession nor control should pass to either the Treasury or the Bank. Mr Pollock’s analysis is therefore in my judgment flawed in this respect because it is dependent on control following ownership although that alone does not lead to the conclusion that he is wrong, simply that the matter does not admit of so straightforward an analysis.
52. At every stage the analysis is one that must be imposed since no express rights of ownership or control of the archive were created orally at any time. It is obviously the position that the Governor acquiesced in or ratified the appointment of Bingham LJ on his behalf. I doubt however if it is correct to conclude from this that the Governor thereby necessarily or impliedly became invested with all the rights which would ordinarily be expected to follow from such an appointment. In fact the immediate rights would be none, because it is accepted by Mr Pollock that neither the Bank nor the Treasury can have had any relevant rights at any rate for so long as the Inquiry was pending. The point however goes further since it is wholly unreal to think of the Governor as having appointed Bingham LJ to investigate the role of the intelligence agencies, or indeed of the Treasury or of the DTI. Appointment by the Governor was simply a device to provide a gateway through which the Bank could pass to Bingham LJ information which would otherwise be confidential under the Banking Act. In this situation I find it very difficult to accept that the Governor can impliedly have been intended to acquire any rights beyond those necessarily consequent upon his joining in the appointment so as to permit the Bank to furnish otherwise confidential evidence. He would of course have an entitlement to receive Bingham LJ’s conclusions in such form as Bingham LJ chose to report them. Further than that his rights must I think have been impliedly limited to the material furnished by the Bank. Indeed I am not even sure that it must necessarily be implied that the Governor would have even this limited entitlement. The Bank would keep copies of all material, whether documents or in the nature of witness statements or observations, supplied by it to the Inquiry. The Governor would therefore have no need of any right to inspect such material, over and above the right to attempt to preserve confidentiality in his material which any contributor would enjoy. Perhaps there would be a particular right in the Governor arising out of his statutory duty to preserve the Banking Act confidentiality, but again this relates, ex hypothesi, only to the Bank’s material. So far as concerns transcripts of the evidence given by Bank witnesses, paragraph 4 of the statement of the procedural steps indicated that a copy of the same would be provided to each witness so that the Governor would of course have access to the transcripts of the evidence given by the Bank’s officers.
53. For these reasons I do not think it right to conclude that the Bank and the Treasury were appointors with co-extensive and identical rights. That does not seem to me to be either a necessary or an inescapable conclusion. If therefore the proper analysis is that ownership in the archive can only have become vested in the appointors after Bingham LJ divested himself, I do not consider that it is an inescapable conclusion that ownership must have vested in both appointors. It would fill the vacuum and not be an unrealistic analysis to regard ownership as having vested in the Treasury alone. An alternative analysis might be that the Bank became invested with ownership only of the materials which it had itself originally supplied to Bingham LJ. Even if it is inescapable that the Treasury and the Bank acquired equal and co-extensive rights of ownership, still I do not believe that it by any means follows that the Bank should be regarded as thereby acquiring any rights of possession or control going beyond the material which it had itself supplied to the Inquiry. I can see no reason why an intention to transfer such rights to the Bank should be imputed, and there is no reason why it should be regarded as inescapable that the Bank acquired such rights even if it is inescapable that the Treasury acquired them. If however I am wrong about that then the starting point of the argument must be that in order to preserve the integrity of the Inquiry neither of the appointors had any relevant right to possession or inspection for so long as the Inquiry was on foot. As Mr Pollock accepted any other analysis would be inconsistent with the mutual (and publicly stated) intention that the Inquiry be wholly independent.
54. In my judgment the proper analysis is probably that once the Inquiry was completed Mr Jackson took steps to divest Bingham LJ of ownership and control of the documents. He did not do so pursuant to any express authority from Bingham LJ but he had his implied authority by virtue of his appointment as Secretary to the Inquiry. Another way of putting the same point is that his appointment impliedly carried with it the duty, once the Inquiry was completed, of ensuring that the documents were transferred from the ownership and control of Bingham LJ into ownership and control which could appropriately safeguard the integrity of the Inquiry. The implication of a term in Mr Jackson’s appointment along the lines I have indicated is in my judgment necessary in order to give efficacy to the contractual arrangements as a whole. Everyone would have envisaged that Bingham LJ would, at the completion of the Inquiry, return to his judicial duties and lose the practical ability any longer to maintain possession of the documents or to control access to them. In so far as it may have occurred to anyone that Bingham LJ would have ownership rights in the materials generated, it would have been obvious to anyone that he would not wish to maintain and would have no interest in maintaining those rights once his Inquiry was completed and that those rights, together with the others, would need to be vested in a responsible authority. No doubt it would have been Mr Jackson’s duty to follow any instructions of Bingham LJ in this regard, had Bingham LJ been minded to give any. However it would have been most unlikely that Bingham LJ would have been so minded. Mr Pollock accepted that Bingham LJ would have been at liberty at the conclusion of the Inquiry either to destroy the documents or to maintain physical possession of them for example by storing them at his home. It is however inconceivable that Bingham LJ would have wished to do either of these things and he might well have regarded both as inappropriate to different degrees and for different reasons. If anyone had been asked at the outset of the Inquiry what would happen at the end to the documents generated whilst it was on foot they would be likely in my view to have replied that Bingham LJ would return to his judicial duties and have nothing more to do with the matter and that it would fall to the Secretary to make appropriate arrangements on his behalf to ensure that the documents were appropriately safeguarded. That is precisely what happened.
55. I should next say a word about the proposed committee. I do not believe that there was ever in fact a concluded agreement that a committee should be established but even if there was it went no further than an agreement in principle with no agreement as to the committee’s precise function and no agreement as to its composition. At the meeting of 11 November itself there was a suggestion that a committee might be set up. The representatives of the Bank, HM Treasury and the Public Record Office present at the meeting had no authority to agree to such a suggestion. Agreement in principle was thereafter given by the PRO and by the Bank but there is no evidence that HM Treasury ever indicated its assent. The committee was in any event envisaged only to be consultative in nature. Discussion of it seems to have proceeded upon the basis that it would not itself have the power to control access to the records—in that regard I do not think that Mr Jackson meant to say in his memorandum of 15 December 1992 that “access to the papers” will be vested in the committee—I think that he meant to refer to control of access, as he did in his letter of 30 December to Mr Gieve and Mr George. The same expression is used by Mr Edwards. The committee would not in fact have controlled access—it would have been a vehicle for discussion of requests for access. Whatever the extent of the agreement on the establishment of a committee, the Bank’s participation is not in my judgment evidence that it had retained and had intended to retain control of the archive.
56. I am not sure that Mr Jackson and the others were necessarily ad idem as to who would ultimately have the power of decision on a request for access. Mr Rippon plainly thought that it would be the Government, particularly the Treasury. The Treasury was emphatic that it did not itself want access although as I have already indicated it accepts that it now has the necessary control over the Bingham archive for the purposes of a Witness Summons or an application for non- party disclosure. Mr Jackson recognised that it would not be appropriate for any Government Department or the Bank to have unrestricted access, at least for the foreseeable future.
57. Precise analysis of the situation is, as all parties acknowledge, difficult. The key however is in my judgment to focus on the right to possession and the right to inspect. In the first instance I need only decide whether the Bank enjoys either such right. In my judgment it is plain that it does not. Even if the proper analysis is that, ownership being no longer with Lord Bingham, it can only, in the absence of any other contender, have been transferred to his appointors, still in my judgment it does not follow that that transfer of ownership carried with it a right to possession or a right to inspect. There is a number of different ways in which the position might have been achieved that HM Treasury and the Bank now have ownership but not the right to possess or to inspect. Any route must be consistent with the preservation of the integrity of the Inquiry. I have already indicated that I do not consider that the Treasury and the Bank stand on an equal footing. However even if they do Bingham LJ, or more realistically Mr Jackson on his behalf, cannot be regarded as having intended to vest in them after completion of the Inquiry a right to possession or inspection which they did not enjoy during the Inquiry. That would be to frustrate the whole basis upon which the Inquiry had been set up and conducted, and would involve Lord Bingham immediately upon completion of his work negating such qualified assurances of confidence as he had given in order to encourage frankness. On balance, and on the assumption in which I have little faith that the Bank was a recipient of any interest in the archive, the analysis which I prefer is that Mr Jackson, on Lord Bingham’s behalf, ceded ownership of the archive to the appointors, but on terms that the position which obtained during the Inquiry was to continue thereafter, i.e. neither the Treasury nor the Bank should have a right to possession or a right to inspect. That is why Mr Jackson coincidentally made arrangements for the archive to pass into the physical possession of the Keeper of Public Records, he being a public officer who had the facilities and could be relied upon to ensure the integrity of the archive, and thus of the Inquiry. Mr Pollock suggested, rightly in my view, that the acid test is whether the Keeper of Public Records could now deny access to the Treasury and the Bank were they jointly to demand it. I agree with Mr Pollock that the issue cannot be decided on the basis of whether a right has in the past been exercised or whether the parties have subscribed to some mutual self-denying ordinance. I agree that the proposition must be tested by asking what is to happen if the Treasury and the Bank, for some reason which seems to them important, change their minds and seek to depart from the basis on which they have hitherto conducted themselves. In my judgment however the answer to this highly artificial and utterly academic question is that the Keeper of Public Records could and should deny access to the Treasury and to the Bank. I would expect his denial to be upheld by the court on the basis that the transfer of ownership was never intended to and did not carry with it a right of possession or of inspection and that those are not rights which the Treasury and the Bank enjoy, whether singly or in unison. That the Treasury has not acquired by a contractual route a right to inspect is not inconsistent with its pragmatic acceptance that it enjoys, de facto, the necessary control for an application against it for non-party disclosure, and the latter tells me nothing about the Bank’s position.
58. It follows that I conclude that the Bank is under no obligation to disclose the Bingham archive.

The application against non-parties

59. I heard some but not full argument on the relationship between CPR 34.2 and CPR 34.17. Pumfrey J in Re Howglen Ltd 2001 1 All ER 376 at 384 doubted the utility or appropriateness of the CPR 34.2 procedure, involving as it does the payment of only conduct money, when the same result can be achieved under CPR31.17 with an order under CPR 48.1 awarding to the person against whom the order is sought his costs not just of the application but of complying with any order made on the application. CPR 34.2 is silent as to the circumstances in which an order thereunder should be made. The parties before me were I think at one in thinking that the ambit of production of documents under CPR 34.2 is likely to be narrower than the ambit of disclosure of documents under CPR 31.17, although I am not sure that they were ad idem as to the reasons why that might be so. For this pragmatic reason therefore the argument at the hearing concentrated on CPR 31.17 and I decide nothing at this stage about the Witness Summonses, noting merely that those to whom they were addressed have pending applications to set them aside.
60. The jurisdiction to order a third or non-party to make disclosure of documents was formerly limited to cases of personal injury and death, and was to be found in Section 32 of the Administration of Justice Act 1970 as re-enacted in Section 34 of the Supreme Court Act 1981. That limitation was removed by Statutory Instrument 1998 No. 3132 L. 17 issued pursuant to Section 4 of the Civil Procedure Act 1997, reflecting a recommendation by Lord Woolf in his Access to Justice proposals that the provisions relating to pre-action and non-party disclosure should be applicable in all cases. The relevant part of Section 34 as amended is now in these terms:-

“34.(2)On the application, in accordance with the rules of court, of a party to any proceedings…., the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to an issue arising out of said claim —

(a) to disclose whether those documents are in his possession, custody or power; and

(b) to produce such of those documents, as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order-

(i) to the applicant’s legal advisers;or

(ii) to the applicant’s legal advisers and any medical or other professional adviser of the applicant’s; or

(iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.

….

(4) The preceding provisions of this section are without prejudice to the exercise by the High Court of any power to make orders which is exercisable apart from those provisions”

61. The rule of court which governs the exercise of the non-party disclosure jurisdiction is CPR 31.17. That provides:-

“(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.

(2) The application may make an order under this rule only where—

(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.

(4) An order under this rule must—

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require the respondent, when making disclosure, to specify any of those documents—

(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may—

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b) specify the time and place for disclosure and inspection.”

62. It is immediately obvious that the jurisdiction given by the rule is not expressed in the same language as is the enabling power contained in the statute. Quite apart from the substitution of the test of control for possession, custody or power, the concept of relevance has been replaced by the jurisdictional threshold contained in sub-paragraphs 31.17 (3) (a) and (b). The concept of relevance as it is used in the statute would surely include documents which are unhelpful to the applicant and are supportive of the case of his counterparty in the litigation. Such documents are not rendered disclosable by CPR 31.17, perhaps because it is thought that the applicant would not be asking for such documents. However in a regime where plainly the non-party is not expected to examine documents for their relevance to issues to which he is not party, it would to my mind be a very odd result that a readily identifiable class of documents which can be expected to contain documents supportive of the applicant should be rendered not disclosable by the presence therein of documents supportive of the case of this opponent.
63. All parties were agreed that I could not at this hearing make an order for disclosure in favour of the Claimants because questions of confidentiality and public interest immunity remain to be investigated and, if necessary, examined by the court on what might prove to be a fairly detailed basis. The parties were however sharply divided as to what should be the court’s approach to the jurisdictional hurdles contained in the two sub-paragraphs to which I have referred.
64. The approach of the Claimants was, broadly speaking, that the Bingham archive is a body of material assembled by Bingham LJ for the very purpose of examining the knowledge and actions of all the United Kingdom supervisory authorities, of which the Bank was of course the principal authority to whose knowledge and actions the great bulk of the report is devoted, reflected by the size of appendix 1 relative to appendices 2-7. Given the terms of reference of the Inquiry the Claimants submit that the material in the archive will be highly relevant to the issues between the parties. They submit therefore that the archive is likely to support the Claimants’ case or adversely affect the Bank’s case, although realistically they accept that not every document in the archive will do so. The Claimants accept that they could go away and devise long and detailed targeted requests for documents and passages in transcripts of evidence based upon references thereto in the report or based on references to meetings likely to have generated memoranda or references to the evidence of those who are identified as having given it to the Inquiry. They submit however that that exercise would be extremely time-consuming and costly and it is, they submit, unnecessary. It is their submission that it is sufficient under CPR 31.17 (3) (a) that they identify a document or class of documents sufficiently connected with the subject matter of the dispute capable of advancing their argument or damaging the counter-argument. If the archive as a whole is properly to be characterised as a class of documents of that sort then they submit that they have satisfied or overcome the hurdle presented by 31.17 (3) (a) because such documents may well support their case or damage that of the Defendant, that being the meaning in context of the word “likely.”
65. The approach of the Treasury Solicitor, supported by the Bank, was that the Claimants have not even attempted to satisfy the jurisdictional requirements. Mr Hollander QC for the Treasury Solicitor submits that an order made under CPR 31.17 must be restricted to documents or to classes of documents which the evidence show to be all within the description given in sub-paragraph 31.17 (3) (a). It is not enough to show relevance in the sense of sufficient connection with the subject matter, still less in the sense of giving rise to a train of enquiry of the Peruvian Guano sort. What is required is that the court be satisfied that each document or each document within the class sought to be disclosed will either support the applicant’s case or adversely affect the case of one of the other parties to the proceedings. “Likely” Mr Hollander submits bears its ordinary natural meaning and therefore involves the court satisfying itself that the documents in question will on the balance of probability support or adversely affect as the case may be, not simply that they may do. Mr Hollander finds support for this approach in the decision of Pumfrey J in Re Howglen Ltd to which I have already referred. Mr Hollander also points to the fact that sub-sub-paragraph (b) introduces a second jurisdictional requirement—that disclosure is necessary in order to dispose fairly of the claim or to save costs. That he submits involves an assessment of relevance of each document, and is in any event not a requirement that the Claimants can hope to satisfy in advance of the completion of the disclosure to be given by the Bank itself, whose files might fairly be expected to be the principal source of material as to the Bank’s knowledge. Mr Hollander stresses that it is important that the court should not relax these requirements and for at least three reasons. First, the court must be astute to ensure that the burden imposed on a non-party to litigation is not elevated above and beyond the burden which rests on an actual party to make standard disclosure. Secondly, under the law as it stood at the time of the Inquiry, the entire archive may well have attracted a successful claim to PII. Non-relaxation of the requirements is important not merely for those who understood that their materials would be kept confidential but also in the interests of the next private and non-statutory inquiry. The integrity of the archive, which has been very strictly protected from disclosure to date, is important to encourage witnesses to come forward on the next occasion. Finally, and related to that last point, Mr Hollander reminded me that the authorities recognise that the court may in the interests of justice require confidentiality to be overridden. Where the court does so it is not ultimately involved in a balancing exercise—it is concerned simply with the question whether disclosure is necessary for disposing fairly of the proceedings—see per Lord Wilberforce and Lord Scarman in Science Research Council-v-Nassé 1980 AC 1028 at pages 1065-66 and 1088 respectively. However the exercise in which the court is in this situation engaged must involve consideration whether the relevant information or materials may be obtainable elsewhere, in which case it is unnecessary to make inroads upon confidentiality. Mr Hollander submits that for this reason the burden cast upon the court is in a case like this a heavy one. The court must be satisfied in relation to each document or to each document within a tightly drawn class that disclosure is necessary in order to dispose fairly of the claim, precisely because that conclusion will lead to confidentiality being overridden.
66. This last consideration highlights another feature of the jurisdiction which must I think follow if Mr Hollander’s approach is correct, which is that once an applicant has overcome or satisfied the jurisdictional hurdles presented by sub-sub-paragraphs 31.17 (3) (a) and (b) there can in truth be little or no room for the court to exercise the discretion which must in my judgment be an integral part of the jurisdiction, not least because the rule provides that the court “may” make an order. Absent perhaps PII considerations, it is difficult to see how a court could legitimately decline to make an order where relevance to the strict standard suggested by Mr Hollander to be required has been proved in relation to every single document of which disclosure is sought and where moreover the court has concluded as a prerequisite to jurisdiction that disclosure of the documents is necessary in order to dispose fairly of the claim.
67. CPR 31.17 has not so far attracted a great deal of judicial attention and it was suggested that my decision in this case would involve a far-reaching and important question of principle. It was suggested that it was never intended that this sort of relatively limited jurisdiction would be used to seek disclosure of huge numbers of documents in major commercial cases.
68. In my view my approach in this case should afford no precedent whatsoever as to the approach which ought ordinarily to be followed, and I make that observation for a number of reasons.
69. HM Treasury has throughout accepted that it has the necessary control of the archive for the purpose of an application for non-party disclosure. Mr Pollock was not content that the application should proceed simply upon the basis of that untested premise because he submitted that it would be relevant to take into account the views of the person or body who or which does in fact have the necessary control. The Treasury Solicitor should be required, he submitted, to take instructions from a person competent to give them. The DTI had already shown that it, for its part, had a relatively relaxed view concerning disclosure of material from the archive. Lord Bingham if he were found to be in control of the archive might he suggested take a similar line. I see the force of Mr Pollock’s submissions on this point although I think that they are somewhat academic in the present situation. If Lord Bingham were found, contrary to his intention, belief and desire, to be in control of the archive, I have little doubt that his instructions to the Treasury Solicitor who represents his interest would be that he did not wish to be involved in the making of any decision as to disclosure. That is in fact what happened when Lord Bingham was consulted by Mr Jackson in November 1993 when a question arose whether a PII class claim should be made for the transcripts of evidence given to the Inquiry. Lord Bingham would I imagine say to the Treasury Solicitor, as he did say on the occasion which I have just mentioned, that consideration should be given to the question whether PII should be claimed. Further than that I have no doubt that he would instruct the Treasury Solicitor to act as she saw fit, bearing in mind the need to maintain the integrity of the Inquiry and not needlessly to imperil the prospects of success of any similar future Inquiry.
70. In this regard the law has moved on since the House of Lords considered in 1980 in Lonrho-v-Shell Petroleum what should be the proper approach to an application by Lonrho for disclosure by Shell and BP, the Defendants in the litigation, of their own documents including transcripts of oral evidence all of which material only came into existence in connection with or for the purposes of the earlier Bingham Inquiry, conducted by Mr Bingham Q.C. as he then was, into the supply of petroleum and petroleum products since the Southern Rhodesia (Petroleum) Order 1965 came into force. Shell and BP refused disclosure of those documents on the grounds of PII, supported by a certificate of the Lord Privy Seal lodged by the Attorney General, who was given leave to intervene in the proceedings to assert on behalf of the Crown the immunity of the documents from disclosure. That inquiry had some statutory underpinning, as Lord Diplock explained, at page 637:-

“Schedule 1 to the Southern Rhodesia (United Nations Sanctions) (No 2) Order 1968, under which the Bingham inquiry was held, makes it an offence for anyone to refuse to furnish to the persons appointed to conduct an inquiry under the Order any document or information requested by them; but it protects from disclosure to any third party (such as Lonrho) who is not charged with official duties in connection with the enforcement of sanctions any document or information furnished to the inquiry without the consent of the person who furnished it, or, when he did so in the capacity of an employee or agent, without the consent of his employer or principal. So the consent of Shell and B.P. was required to the disclosure of the Bingham documents to Lonrho.”

However, the immediately following paragraph in Lord Diplock’s speech is I think and as appears therefrom in no way dependent on the fact that the inquiry had coercive powers:-

“Many judges have at some time in their lives had experience of conducting official inquiries or investigations in private. Even without the Minister’s certificate I should not have needed evidence to satisfy me that the likelihood of success of an inquiry of this kind in discovering the truth as to what happened is greatly facilitated is those persons who know what happened come forward to volunteer information rather than waiting to be identified by the inquiry itself as likely to possess relevant information and having it extracted from them by question and answer. Nor would I need any evidence to satisfy me that without an assurance of complete confidentiality information is less likely to be volunteered; particularly where the inquiry is directed to matters that are the subject matter of a pending civil action to which the possessor of the information is a defendant.”

If further authority is needed for that approach it is to be found in the judgment of Staughton J in Continental Re-v-Pine Top 1986 1 Lloyd’s Reports 8 at page 12 where he said:-

“The underlying principle by reference to which the validity of this claim [a claim to PII] must be tested may be stated in the following general terms: whenever information is given in confidence, whether voluntarily or pursuant to a statutory obligation, of a kind which is necessary to enable the recipient of the information to perform an important public function with maximum efficiency and which would not be so readily forthcoming if the informant could not be sure that the confidence would be absolutely respected, then there is added to the confidentiality a public interest in its protection which is sufficient to ensure that the confidential information will be withheld from production in legal proceedings.

At first sight it may be open to question whether the obtaining of information voluntarily from others would be endangered by disclosure in a case where there is power to obtain the information compulsorily as there is here, but authority shows that there is such a danger….”

Staughton J went on to set out the passage from the speech of Lord Diplock to which I have already referred. Staughton J also observed that the principle must be equally applicable where the obligation of confidence is implied as where it is express, and I respectfully agree.

71. In the light of the decision of the House of Lords in R-v-Chief Constable of West Midlands Police, ex parte Wiley 1995 1AC 274 the Treasury Solicitor does not assert that the entire archive should be protected from disclosure on grounds of PII. That no doubt realistic acceptance of the current state of the law gives rise to the difficulties with which I am now faced. An approach which involves that the material generated by an inquiry of this sort is simply immune from disclosure on grounds of the public interest is principled and straightforward. However once it is accepted that such an approach is inappropriate the court is inevitably committed to an examination of the implications of confidentiality and PII on an item by item basis, at any rate where it is suggested that confidentiality should in part not be overridden or that disclosure should partially be withheld on PII grounds. It is thus tempting to conclude that the jurisdictional gateway to disclosure represented by CPR 31.17 should indeed be restrictively construed so that the investigation into confidentiality and PII can be correspondingly reduced.
72. There are however a number of features of this litigation and of this archive which in my judgment pull strongly in the other direction. The first point is that the archive was assembled for the purpose of an investigation which very closely mirrors the issues raised in the litigation. Of course the images do not entirely correspond, and the Inquiry was concerned with agencies other than the Bank, albeit the Bank was the principal body under scrutiny. The Inquiry was however concerned with supervision by the Bank. This action is concerned with supervision by the Bank. Moreover the archive was compiled in 1991 and 1992. Common sense indicates that the archive must contain much probative material concerning the same meetings and conversations as will have to be explored at trial, some of them going back to the late 1970’s. By the same token the archive must contain much which is simply unhelpful, either because it represents material sent to Bingham LJ which was in fact irrelevant to his purposes or because it relates to an aspect of his Inquiry which happens not to be reflected in the issues at trial—such as the involvement of another agency unknown to the Bank or details of the dishonest practices at BCCI. The dilemma which the Claimants face is that they do not know what is in the archive. It is simply no answer to say that Bingham LJ is likely to have made reference in his report to anything of relevance—that is to fall into the error which the House of Lords has already castigated, of reliance on positive conclusions and findings and absence of conclusions and findings of Bingham LJ. I note that the House of Lords did not simply regard that approach as impermissible in law but as unfair to the Claimants. I might add that I do not regard the force of this observation as in any way watered-down by consideration of the circumstance that “only a bare majority of their Lordships thought the Claimants’ case was sufficient to proceed to trial” as Mr Hollander reminded me in his skeleton argument. I do not agree that it is open to me to approach the matter on the basis that a case which has attracted support of that order is precisely the sort of case where fishing expeditions are most to be anticipated, nor do I think that I should. If the Claimants are to be regarded as fishing, I am bound to say that they are fishing in waters which can be regarded as likely to be stocked, albeit not exclusively with fish likely to be to their taste.
73. In this latter regard I note that Lord Hope assumed that the Claimants would have access to the evidence which provides the source material for the narrative contained in Bingham LJ’s report—see paragraph 32 of his second speech at page 524 of the report, and cf paragraph 30 at page 523. It is possible that Lord Hope envisaged that the material would all be contained within the Bank’s ordinary discovery, on the basis that anything of any relevance would be found within the Bank’s files, or consist of evidence furnished to the Inquiry by the Bank, but I respectfully doubt that that is the proper inference to be derived from his language. Of course I do not suggest for one moment that their Lordships had in mind the considerations which inform the present application. However I respectfully doubt whether Lord Hope envisaged that, if the action proceeded, the Claimants would have to justify requests for access to the source material available to Bingham LJ.
74. The second feature of this case which in my view takes it out of the ordinary run is that the person against whom the application for non-party disclosure is made is an interested party in a very real sense. There is the curiosity that it so happens that the Treasury Solicitor holds 100% of the issued stock in the Bank as a nominee of HM Treasury. There is the reality that if the Claimants succeed in this action their claim will have to be met, ultimately, by HM Treasury. Whilst accepting that precise analysis of questions of ownership and control is elusive, stripped to its essentials and no doubt put crudely this is a case in which an emanation of the State is being sued and in which another emanation of the State holds a body of documents assembled for the purpose of investigating matters which, if not the same as the matters which are the subject matter of the action, are at any rate very closely related to them.
75. There is also the consideration that, in my view, the present case is not necessarily appropriately described as a commercial case, albeit it is proceeding in the commercial court. As I observed during the hearing, the case is rather closer to public law than a commercial case.
76. For all these reason the issues which arise on this application are wholly different from those which will usually arise in a routine application for non-party disclosure in normal litigation concerning contractual or tortious claims. Mr Hollander did not seek to dissuade me from that view and he recognised that there had to be a sensible way forward. To that end the Treasury Solicitor had already by the time of the hearing written to most if not all of the persons who gave evidence to the Inquiry enquiring whether they objected to production of their material. Where the sticking point came however was Mr Hollander’s submission that the jurisdictional hurdle could not be satisfied by the broad-brush approach to relevance which the Claimants had adopted. That was a principled objection, made in the interests of the correct and uniform application of the law, but it also no doubt reflected a view that in this sensitive field disclosure should not be volunteered on a more generous basis than could be compelled.
77. I turn therefore to CPR 31.17. I respectfully do not agree with Pumfrey J, if this was his reasoning, that the word “likely” imports that it must be shown that the documents in question will support the applicant’s case or damage that of his adversary. The word “likely” is also used in CPR 31.16 in the context of pre-action disclosure. That rule provides:-

“(1)This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where –

(a)the respondent is likely to be a party to subsequent proceedings;

(b)the applicant is also likely to be a party to those proceedings;

(c)if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure;and

(d)disclosure before proceedings have started is desirable in order to –

(i)dispose fairly of the anticipated proceedings;

(ii)assist the dispute to be resolved without proceedings; or

(iii)save costs….”

The power to make that rule is derived from Section 33 (2) of the Supreme Court Act 1981 which provides:-

“On the application, in accordance with rules of court, of a person who appears to the High Court to be likely to be a party to subsequent proceedings in that court, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who appears to the court to be likely to be a party to the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim -

(a)to disclose whether those documents are in his possession, custody or power;and

(b)to produce such of those documents as are in his possession, custody or power to the applicant….”

The Court of Appeal had to consider the meaning of these provisions in Black-v-Sumitomo Corporation December 2001, unreported. At paragraphs 71 and following of his judgment Rix LJ said this:-

“71. Of course, in one sense it might be said that a person is hardly likely to be a party to subsequent proceedings whether as a claimant or otherwise unless some form of proceedings is itself likely to be issued. Two questions, however, arise. One is whether the statute requires that it be likely that proceedings are issued, or only that the persons concerned are likely to be parties if subsequent proceedings are issued. The other is whether “likely” means “more probably than not” or “may well”. As to the first question, in my judgment the amended statute means no more than that the persons concerned are likely to be parties in proceedings if those proceedings are issued. That was what Lord Woolf had in mind when he wrote of the requirement that “there is a likelihood that the respondent would indeed be a defendant if proceedings were initiated” (in section III, para 50, of his final Access to justice report, quoted in para 46 above). The omission of any language which expressly requires that the initiation of proceedings itself be likely, which could have been included in the amended section, appears to me to reflect the difficulties which the earlier authorities had explored in the sort of circumstances found in Dunning. What the current language of the section appears to me to emphasise, as does the rule of court, is that the parties concerned in an application are parties who would be likely to be involved if proceedings ensued. The concern is that pre-action disclosure would be sought against a stranger to any possible proceedings, or by a party who would himself be unlikely to be involved. If the statute and rule are understood in this sense, then all difficulties, which might arise where the issue of proceedings might depend crucially on the nature of the disclosure sought and where it is impossible at the time of making the application to say whether the disclosure would critically support or undermine the prospective claim, disappear.

72. As to the second question, it is not uncommon for “likely” to mean something less than probable in its strict sense. It seems to me that if I am wrong about the first question, then it is plain that “likely” must be given its more extended and open meaning (see Lord Denning in Dunning) because otherwise one of the fundamental purposes of the statute will have been undermined. If, however, I am right about the first question, the second question is of less moment. Even so, however, I am inclined to answer it by saying that “likely “ here means no more than “may well”. Where the future has to be predicted, but on an application which is not merely pre-trial but pre-action, a high test requiring proof on the balance of probability will be both undesirable and unnecessary: undesirable, because it does not respond to the nature and timing of the application; and unnecessary, because the court has all the power it needs in the overall exercise of its discretion to balance the possible uncertainties of the situation against the specificity or otherwise of the disclosure requested. Clearly, the narrower the disclosure requested and the more determinative it may be of the dispute in issue between the parties to the application, the easier it is for the court to find the request well-founded; and vice versa.

73. On this basis, I think that the judge was led into error by the fact that before him there had been a large degree of common ground about seeking to derive from the earlier cases a complicated formula as to the meaning of “likely”. In my view, apart from the two issues of principle which present themselves and which I have sought to answer in this section of my judgment the word itself presents no difficulties. Temptations to gloss the statutory language should be resisted. The jurisdictional threshold is not, I think, intended to be a high one. The real question is likely to be one of discretion, and answering the jurisdictional question in the affirmative is unlikely in itself to give the judge much of a steer as to the correct exercise of his power.”

I find the approach of Rix LJ helpful in the present context. Obviously his observations as to the height of the jurisdictional threshold cannot simply be transposed from one rule to the other. The rules are different, and fulfil markedly different functions. But his approach to the question whether it is required that it be likely that future proceedings are issued and to the question whether “likely” means more probably than not is in my view of relevance in the consideration of CPR 31.17. It would be wholly inappropriate on an interlocutory application, particularly on this interlocutory application, to undertake an exercise designed to demonstrate that a particular piece of non-party disclosure will support the case of the applicant or damage that of his adversary. That would lead to unmanageable satellite litigation. The word likely is surely used to weed out the hopeless case. There must be shown to be a sufficient prospect of assistance to warrant putting the third or non-party to the trouble, at the applicant’s expense, of making disclosure, but it cannot be intended that the court embark upon a series of mini-trials in relation to each document sought so as to see whether the applicant can show not just that he may be assisted by the document but that more probably than not he will be assisted. There is the additional consideration that, if the applicant must satisfy the court that the document will assist him, he can only do so if he has some independent knowledge of the contents of the document. I do not believe that the rule is intended to have so narrow an application. Just as Rix LJ approached CPR 31.16 as requiring an assumption that proceedings will ensue, so to it seems to me legitimate to approach CPR 31.17 on the footing of an assumption, provided it is justified by the evidence, that the documents sought are potentially relevant, that their likely subject matter is demonstrated to be sufficiently closely connected with the subject matter of the issues or of the dispute. The applicant cannot be required to show actual relevance, since that would usually be impossible without precise knowledge of the contents of the document. Unless the rule is approached in this way it would as it seems to me be of very limited utility.

78. I believe that support for this approach to CPR 31.17 is to be derived from two further decisions of the Court of Appeal in which that rule was itself under consideration, American Home Products Corporation-v-Novartis Pharmaceuticals 2001 EWCA CiV 165, unreported and Clark-v-Ardington Electrical Services 2001 EWCA Civ 585, also unreported. The first case was a patent action. A patent agent Dr Wright had identified and collated non-party documents which were placed into a box. The patent agent said that he had placed into the box “all of the patent department collaboration files” of the non-party, not just those that he considered to be of relevance. The Defendant Novartis contended that the documents in the box were relevant to the issues of obviousness and novelty. The non-party did not oppose the application for disclosure although they did not consent to it. However the Claimants did appear on the Defendant’s application and before Laddie J successfully submitted that an order for disclosure by the non-party should not be made. Laddie J refused disclosure on three grounds, one of which was that the box contained some documents which were not relevant to the issues before the court. He also concluded that none of the documents were in fact relevant to the issue of novelty. The crucial passage in the judgment of Aldous LJ in the Court of Appeal is at paragraphs 33 and 34 of his judgment as follows:-

“33. At trial a major dispute between the parties will concern the allegation that it was obvious to try rapamycin as an immunosuppressive in transplant treatment having regard to the knowledge of FK-506. I accept, as Mr Baldwin pointed out, that evidence of what Fisons and Fujisawa did and thought at around the priority date of the patent could not be determinative. However such evidence could support the case of Novartis that the step from FK-506 to rapamycin was obvious. If both Fisons and Fujisawa appreciated the similarity between FK-506 and rapamycin and the likelihood that they could have similar properties, that could support the evidence of a Novarits expert that the step from FK-506 to rapamycin was obvious and could help to rebut the attack on such evidence that it was based on hindsight reasoning. Thus in principle the evidence of Mr Brown establishes that the box contains relevant documents which the Court has power to require to be disclosed.

34. Subject to the question of date, I reject Mr Baldwin’s submission that the evidence establishes that here are documents in the box that are not relevant. Dr Wright’s view of ‘relevance’ cannot be determinative particularly when clearly he was considering the status of individual documents, rather than the class. To decide what weight to place on any particular document, it will be necessary to consider it in a context. If so, a selection limited to documents Dr Wright thought were individually relevant or even those that Fisons thought were relevant could provide a false picture. In my view the collaboration of Fujisawa and Fisons is relevant to the proceedings. No doubt particular documents may turn out to be more relevant than others; some individual documents may not be ‘relevant’ at all.”

From that passage two, possibly three, points emerge. Firstly, in paragraph 33 Aldous LJ was plainly not requiring it to be shown that the material of which disclosure was sought would support the applicant’s case. It was enough that it was shown that it could. Secondly, in paragraph 34 Aldous LJ held, as I read his judgment, that a document may be relevant for purposes of CPR 31.17 because it places another document or documents in context, even though it may not itself contain anything which goes directly to the issues in the case. The third point I offer with more diffidence. However it seems to me that Aldous LJ recognised that it would be a perfectly proper exercise of the jurisdiction to order disclosure of a class of documents some individual documents within which class might ultimately prove not to be documents which supported the applicant’s case or damaged that of his adversary—that I apprehend is what he intended to convey by putting the word relevant at the end of paragraph 34 in quotation marks so as to emphasise that some documents might not, although ordered to be disclosed, satisfy the test of relevance as it is spelled out in CPR 31.17. The Court of Appeal must in my view be taken to have impliedly overruled the decision of Pumfrey J, relied on by Laddie J, to the effect that the court must be satisfied that all of the documents falling in the class are documents which satisfy the requirements of CPR 31.17 (3)(a).

79. Although obviously on a very different scale the present case is in many ways similar to the patent case. The compilation of the archive by Bingham LJ may be said to be broadly analogous to the compilation of the box of documents by Dr Wright. Both were focused exercises. Just as in the patent case, so here, if disclosure is ordered the non-party will not be required to perform any critical judgment as to relevance—disclosure would be ordered on the basis that the identified part of the archive, for example the material supplied by and the evidence of the British Banker’s Association, was required to be disclosed in its entirety.
80. The decision of the Court of Appeal in Clark-v-Ardington is also inconsistent with the approach urged upon me by Mr Hollander. The case was concerned with Mrs Clark’s attempt to recover from the Defendants damages arising out of a motoring accident for which the Defendants were to blame and in the course of which Mrs Clark’s vehicle was damaged. Her claim was for car hire, an engineer’s fee and repair costs. She had been a member of a scheme run by a group of companies called Helphire which provides to motorists who are not to blame for collisions assistance in the shape of repairs and replacement vehicles so that they need not have recourse to their own insurers. The appeal was concerned with the contention that the amounts claimed by Mrs Clark were not the amounts actually paid by Helphire on her behalf. Discovery was sought from Helphire relating to the arrangements which Helphire had with repairers and engineers. It was argued on behalf of the Claimant that the documents of which disclosure was sought from Helphire were irrelevant because the claim was hers and what Helphire paid did not matter. The County Court Judge ordered that the Helphire companies provide to the applicant’s solicitors disclosure of all documents they may hold indicating when and what repair and engineer charges were invoiced and paid both by them and to them. I pick up the discussion at paragraph 10 of Tuckey LJ’s judgment:-

“10. There was and is no issue about whether such documents exist. But on behalf of the claimant it was argued that they were irrelevant because the claim was hers and what Helphire paid did not matter. The defendants contended that only amounts actually paid by Helphire were recoverable and the documents sought would show what these amounts were and when they were paid and this information might shed light upon whether the schemes were a sham. The judge described this argument as respectable although he made it clear that he expressed this view without detailed consideration of its merits. He continued:

“It cannot be said that it is not a realistically sustainable submission or that it has no reasonable prospect of success. The defendants should be free to pursue the point and in order to do so need to see the documents which show what the Helphire system paid to the repairers and engineers, as well as what they claimed in the claimant’s name from the defendants in this respect. Such documents, if the defendants’ argument is good, are likely to support the case of the applicator, adversely affect that of the claimant, and in my judgment such disclosure is necessary in order to dispose fairly of the claims. If a defendant’s point is sound, then fairness can only be achieved by knowing the relevant figures and the nature of the arrangements.”

11. A little later he said:

“Either a claimant is entitled to what it seeks or it is not, and a much more reliable judgment about this is likely to be reached by a court in possession of the facts than one operating through a mist of inference or speculation.”

12. Mr Milligan Q.C., on behalf of the appellant, submits that the judge was wrong. Neither limb of CPR 31.17 were satisfied because the documents were irrelevant. Under the scheme the claimant owes Helphire the amounts claimed so her loss is quantified as her indebtedness to them for the services they provide. What Helphire pay to provide these services is irrelevant. The measure of Mrs Clark’s loss is not what Helphire pays, it is the market value of the repair to the car. Despite the resources at their disposal, the defendants’ insurers have produced no evidence that his value is less than the amount invoiced to Mrs Clark and claimed in these proceedings. The arrangement under which Helphire paid 90 per cent of the value of the invoice did not discharge Mrs Clark’s debt to the repairer. It was, as the agreement shows, a straightforward factoring agreement under which one Helphire company bought the debt due by Mrs Clark to the repairer. Mr Milligan also showed us passages in Dimond v Lovell which formed the basis for a submission that the defendants’ contention is based upon a misunderstanding of what the majority said in that case about the damages recoverable for the cost of car hire.

13. These are interesting arguments. But the threshold question we have to answer is whether the court should proceed to resolve the issues which they raise for the purposes of determining whether the documents in question are relevant. I do not think that it should. The court ought not to determine disputes of substance in order to decide whether documents are or are not relevant. Here the issue to which the discovery relates is clearly raised in the amended defence and no attempt has been or could be made to strike the pleading out. It will be for the judge at trial to decide the issue based on the evidence (some of which will come from the discovery ordered) and the law including what the House of Lords did or did not say in Dimond v Lovell and the other submissions made to us by Mr Milligan.

14. I think the judge was right not to enter into the merits of the debate in any detail for the purpose of making the discovery decision. He directed himself as to what CPR 31.17 required before a non-party order for discovery could be made. The documents sought did, in my judgment, satisfy both limbs of the test.

15. The judge nevertheless had a discretion as to whether to make the orders. I see no basis for saying he exercised it incorrectly. As this is or may be a test case, it is important that the court should have as full a picture as possible as to how the Helphire schemes work. In the earlier test cases the judge regretted that he did not have the full picture because certain documents were not before the court. Furthermore, the third parties affected by the judge’s order are either Helphire subsidiaries or participants in the schemes in which they obviously have a commercial interest.”

It is worth noting that it was not known in that case what precisely the documents would reveal. They might on examination prove unhelpful to the applicant’s case. Furthermore, on resolution of the legal issues Mr Milligan might prove to be right that what Helphire had paid was of no relevance. Neither consideration deterred the court from ordering disclosure. The court ought not to determine disputes of substance in order to decide whether documents are or are not relevant. Obviously the case is a very different one from the present but the approach of Mr Hollander to the application of CPR 31.17 sits very uneasily with the approach adopted by the court in this case.

81. My conclusion is that in the very unusual circumstances of this case the Claimants are not required, in order to satisfy CPR 31.17 (3) (a), to make a detailed application identifying each and every document or class of documents of which they seek disclosure from the archive demonstrating in relation to each such document or class of documents how precisely it will support their case or damage that of the Bank. By the same token the Claimants are not required to eliminate the possibility that the documents of which they seek disclosure might include some which on inspection have no probative value in the case. Given the nature of the archive that would be an entirely pointless, time-consuming and expensive exercise, and in my judgment the authorities to which I have referred show that I am not required to interpret CPR 31.17 in a manner which brings about what would be, in the special circumstances of this case, an absurd and very undesirable situation.
82. As I have mentioned, during the course of the hearing Mr Pollock produced a request for disclosure which was limited to material emanating from persons who might reasonably be expected to have been imparting information to the Inquiry concerning supervision or what was known about BCCI in the banking community rather than information concerning the commission of crime. In relation to the persons identified in the revised list Mr Pollock asked for:-

(i) Documents produced by that witness to the Inquiry;

(ii) Written submissions or observations made by that witness to the Inquiry;

(iii) Any witness statement or proof of evidence put forward by that witness;

(iv) The transcripts of any formal interview which took place;

(v) The bundle containing documents about which the witness was asked in the course of the interview;

(vi) Any post interview correspondence with the witness generated by Bingham LJ’s practice of sending to each witness a transcript of his evidence, inviting comments, corrections, amplifications and so forth.

Although substantial Mr Pollock’s list of persons is in fact less formidable than might otherwise appear because it includes the Bank, and Mr Pollock acknowledged that since the Bank has confirmed that such material will be disclosed by it in the ordinary course of its own disclosure, that aspect of the request for non-party disclosure falls away. The material supplied by the Bank and the transcripts of evidence given by its officers must represent a very significant proportion of the archive as a whole. Whether the Bank will be in a position to disclose material identified under sub-heading (v) above is a detail—for the moment I assume that the Claimant’s request does not include what broadly I will call the Bank’s material. The list includes two persons without an adequate or any description of their role, Mr N Hodges and Mr S A Hussein. For the time being I exclude them from consideration also. Subject to those observations I regard the Claimants as having satisfied in relation to this limited request for disclosure the jurisdictional requirement represented by CPR 31.17 (3) (a).

83. Obviously I could not at this stage consider and I am not asked to consider the requirement under 31.17 (3) (b) that disclosure be necessary in order to dispose fairly of the claim. That will involve amongst other things consideration of confidentiality and PII. There also remains for consideration the question whether the Court’s discretion should be exercised in the applicant’s favour. In the light of the matters to which I have already referred, both generally and in relation to the shape of the rule, it may be questionable how prominent a role that enquiry will assume, but in a case and an exercise of this complexity it would be unwise to lose sight of the ultimate discretionary aspect.
84. Necessity is a jurisdictional threshold under CPR 31.17 whereas under 31.16 it is not. Whilst mindful of the fact that I am not conducting an Inquiry but rather presiding over litigation I would nonetheless urge that consideration be given to the notion, expressed by Rix LJ in Black-v-Sumitomo in the different context of CPR 31.16, that transparency may sometimes be what the interests of justice and proportionality most require. I consider that there is a very real danger of spending more time and money than is justified in close examination of the archive or the supposed contents of it for relevance to the issues in the case for no better reason than defence of a principle which is already partially compromised by recognition that the entirety of the archive cannot properly attract PII. That is underlined by the fact that the part of the archive now sought is not that in respect of which considerations of confidentiality are likely to prove paramount. I do not underestimate the scale of the task which remains in relation to confidentiality and PII but I would hope that in relation to the Claimant’s more limited request it is now both manageable and likely to lead to a recognition that there can be no sensible objection to disclosure of substantial parts of the archive. That of course does not mean that the number of documents deployed at trial will necessarily be substantially increased. In that regard the concern of Mr Stadlen Q.C. for the Bank was largely that the trial should not become encumbered with large and unmanageable quantities of irrelevant material, and that the provisional time-table should not be unnecessarily placed in jeopardy. As to the latter, the time-table is in my judgment more likely to be placed at risk by requiring the Claimants to justify their request for inspection of parts of the archive on a document by document basis rather than casting onto the Claimants the burden of inspecting material which will be in the public domain within the time scale to which I have already referred. As to the former, it goes without saying that all parties will have to be vigilant to ensure that the documents ultimately placed before the court are only those which are relevant.
85. There will of course need to be a time-table to take things forward.
86. There are two final matters which I must mention. I have already set out the Claimants’ undertaking as to costs contained in their letter to the Treasury Solicitor of 21 December 2001. In fact that was taken further in Messrs Lovells’ letter of 30 January 2002, the Treasury Solicitor’s letter of 11 February 2002 and Messrs Lovells’ letter of 15 February 2002. I did not hear argument from the Treasury on the question whether the Claimants should in due course be required under CPR 48.1 to bear the cost of consideration being given to whether PII should be claimed, and of course the ambit of any order under CPR 48.1 cannot strictly arise until an order is made under 31.17, which stage has not yet arisen. I am not sure that the Treasury has yet adopted a position on costs of this sort, and it may be that there is no disagreement between the parties. I would not however want uncertainty on this aspect to give rise to any delay in pressing ahead with what needs to be and is already as I understand it being done.
87. Finally it is pointed out that some of the documents of which disclosure is sought appear to bear manuscript notes put upon them by Bingham LJ. Those notes are of course irrelevant and inadmissible. As between the parties there could doubtless be devised a mechanism for dealing with such notes as has I understand it been devised in relation to other notes of a like nature but I do not consider it appropriate that such notes should be disclosed without Lord Bingham being given an opportunity to indicate whether he objects to that course.
88. Postscript

Since finalising the terms of my judgment I have been supplied with a copy of the judgment of Judge Toulmin Q.C. in Pride Valley Foods Ltd.-v-Hall and Partners (Contract Management) Ltd. which was delivered on 8 May 2002, the second day of the hearing before me. I am gratified to find that he appears to have adopted an approach to CPR 31.17 which is consistent with my own.