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Documents obtained in criminal investigation disclosable in civil proceedings

04.04.2019 Maritime

Rory Macfarlane

Rory Macfarlane Partner

Frances Drain

Frances Drain Associate

Omers Administration Corporation v. Tesco PLC [2019] EWHC 109 (Ch)

This case is the latest in a string of recent decisions on disclosure and privilege arising in a regulatory context. The Court held that documents obtained by a party under investigation by the Serious Fraud Office (SFO), under S.2 of the Criminal Justice Act 1987 (CJA), were disclosable in civil proceedings, despite objections of confidentiality raised by third parties.

The background facts

The Claimant brought an action against the Defendant for compensation under the Financial Services Act 2000 (FSMA) for losses that they had incurred due to the Defendant’s false and misleading statements to the market. It was these circumstances that also gave rise to the SFO’s investigation, which the Court found was of direct relevance.

The SFO provided the documents to the Defendant for the purpose of negotiating a deferred prosecution agreement. Strict conditions were imposed by the SFO with regard to the use of the documents in order to protect the people who provided the documents. The documents consisted of: i) documents provided to the SFO by third parties and; ii) documents containing information provided to the SFO by third parties, which included transcripts of interviews with third parties and their witness statements.

There was no doubt or argument between the parties that the documents were relevant to the Claimant’s case. The Defendant was willing to disclose the documents if ordered to do so by the Court and the Claimant understood that certain restrictions would be imposed upon disclosure. However, objections were raised by a number of third parties, who had provided the documents or information contained within them.

The Court decision

The Court had to weigh up the confidentiality of the documents against their disclosable nature. Their potential to confer a ‘litigious advantage’ or a ‘litigious disadvantage’ if not disclosed was considered within the framework that civil trials should be conducted on the basis of all relevant material being provided to ensure a fair trial. The Court referred to and distinguished between public and private interest confidentiality, described as “public interest in maintaining the confidentiality of individuals who provide information under compulsion to prosecuting authorities such as the SFO” and the “private interest of individuals in maintaining the confidentiality of information related to them in the SFO Documents and their right to privacy and family life pursuant…to the Human Rights Convention”. The element of compulsion involved in public interest confidentiality was given particular weight by the Court. The Court also noted the importance of preserving the integrity of criminal investigations and protecting those who provided information to prosecuting authorities from any wider dissemination of the information otherwise than in the resultant prosecution.

Nonetheless, in this case, the Court considered that the greater public interest lay in the parties and the Court having all the relevant material in order to obtain a fair and just result. The Court considered the relevant civil procedure rules regarding the production of documents, but concluded they did not apply in these particular circumstances. In drawing its conclusions, the Court put great emphasis on the overriding objective of dealing with the case justly and at proportionate cost. It considered whether this could be achieved without production of the documents or whether the documents could be obtained from another source, but concluded that neither option was available in this case.


The documents in this case were obtained as part of a criminal investigation yet were found to be disclosable in related civil proceedings. The decision, similar to other recent decisions, illustrates the recent trend for the English Courts to order disclosure where there is no dispute that the documents are relevant. Consideration will be given to confidentiality, the element of compulsion and other factors but, unless there is an overwhelming reason not to disclose, then disclosure will usually be ordered to dispose of the matter in a fair and just manner.

Article authors:

Rory Macfarlane Frances Drain