Standard Life Assurance Ltd & Anor v Topland Col Ltd & Ors (Rev 1) [2010] EWHC 1781 (Ch)

Case No HC 09C03394[2010] EWHC 1781 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/07/2010
Re-issued 14/3/2011 following
lifting of confidentiality preventing
disclosure of names
Before
MR JUSTICE WARREN
Between
STANDARD LIFE ASSURANCE LIMITEDClaimantsTHE STANDARD LIFE ASSURANCE COMPANY 2006ClaimantTOPLAND COL LIMITEDDefendantsLSM PROFESSIONAL LIMITEDDefendantTOPLAND GROUP PLCDefendant
Mr I Gatt QC (instructed by Herbert Smith) for ClaimantsMr T Beazley QC and Mr T Weisselberg (instructed by Mishcon de Reya) for First and Third DefendantsHearing Hearing dates: 20th, 21st & 24th May 2010
Judgment

Introduction

[1]There are two claimants: Standard Life Assurance Limited and The Standard Life Assurance Company 2006. I refer to the claimants together as “Standard Life”. There are three defendants: Topland Col Limited, LSM Professional Limited and Topland Group plc.I refer to the first and third defendants together as “Topland”. I refer to the second defendant as “LSM”.[2]There are two applications before me: i) The first is Topland’s application dated 13 January 2010 for: a) An Order striking out Standard Life’s claim as an abuse of process which is made only under CPR3.4(2)(b). b) An injunction to restrain Standard Life from using or disclosing allegedly confidential information. c) An Order requiring Standard Life to deliver up all of the alleged confidential information. d) An Order requiring Standard Life to disclose what has become of the documents and material containing the alleged confidential information insofar as they are no longer in their possession. e) Summary judgment on Topland’s Counterclaim which broadly seeks the relief in a) to d) above together with an enquiry as to damages. ii) The second is Standard Life’s application dated 3 February 2010 for an Order (if necessary) that they be permitted to use - for the purpose of civil proceedings against Topland and LSM - documents previously disclosed to them by the Serious Fraud Office (“the SFO”).[3]The confidential information referred to comprises documents provided to Nigel Chapman, an employee of Standard Life (“Mr Chapman”), by the SFO in the course of an investigation into the conduct of Topland and LSM in respect of certain transactions which took place between Standard Life and Topland. I shall refer to the entirety of the documentation received from the SFO as “the SFO Pack” although some of them are not, on any view, confidential.

Standard Life’s case

[4]In the following paragraphs, I set out Standard Life’s case which takes account of what it now knows as a result of the SFO Pack.

March 2000 - 1 October 2003: Standard Life’s Ownership of the Property

[5]In March 2000 Standard Life acquired as an investment the freehold of First Avenue House, High Holborn, London WC1 (“the Property”) for some tens of millions of pounds. The freehold was subject to a lease (“the Lease”) to the Department for Constitutional Affairs (“the Lessee”) which used the Property for the purposes of its activities.[6]LSM was retained as asset manager by the Lessee and was instructed, amongst other matters, to negotiate a rent review of the Property on the Lessee’s behalf in 2002/2003.[7]During Standard Life’s period of ownership of the Property, LSM caused Standard Life to believe that the Lessee saw the Property as “unhelpful to their accommodation requirements” and that the Lessee was not interested in a regear of the Lease, ie an extension of the Lease beyond its term (which was to expire on 24 March 2012). For commercial reasons (which I do not set out), Standard Life was in fact keen to negotiate a regear of the Lease if possible. A regear, with the Lessee as lessee, would in the light of the strength of the lessee-covenant, also significantly enhance the value of Standard Life’s freehold interest in the Property.[8]In fact, the Lessee was also interested in a regear of the Lease. By letter dated 27 June 2003 to LSM, it stated that it “wishes to commit on a long-term basis (i.e. in excess of 20 years) to First Avenue House, provided that acceptable terms can be negotiated and subject to contract in the usual way.” It instructed LSM to “enter into negotiations in order to establish the options available to [a division of the Lessee]”.[9]Standard Life says that this is a key document in the case and asserts that it is not one of Topland’s documents. Topland does not suggest that it provided this document to the SFO. Standard Life says that it cannot therefore be confidential information belonging to Topland.[10]LSM did not inform Standard Life of the Lessee’s wish to regear the Lease nor, contrary to the clear instructions given to it, did it enter into negotiations (or any discussions) with Standard Life in this respect. LSM allowed Standard Life to continue in the belief that the Lessee saw the Property as surplus to its requirements and was not interested in a regear.[11]According to Standard Life, the reason for LSM’s failure to act as instructed by its principal (the Lessee) is, it now appears, because it had entered into an arrangement with Topland whereby LSM was to receive from Topland a fee of 1% of the purchase price paid by Topland for the freehold of the Property on the basis that Topland purchased the Property with a regeared/restructured lease. On the basis of the actual purchase price subsequently paid by Topland to Standard Life, this would give rise to a substantial fee. This is in fact the allegation made by the Lessee in proceedings which it has now brought against LSM.[12]Mr Gatt (who appears for Standard Life) refers to events going back to November 2002 when Darren Shaw (of LSM) contacted Clive Bush (of Topland). There was what he describes as an important exchange of emails between them. These emails are further key documents in the current claim.[13]In this email exchange i) Mr Shaw discussed the likely outcome of the ongoing rent review between Standard Life and the Lessee. ii) Mr Shaw suggested to Mr Bush that there was a more substantial profit to be made by Topland if it commenced negotiations with Standard Life to buy the Property immediately rather than after the conclusion of the rent review. iii) When Mr Bush professed naivety and indicated he could not understand why Standard Life would want to sell before the rent review was concluded, Mr Shaw responded (at 11.57 am on 20 November 2002): “As far as we are aware, there is a meeting tomorrow with the [the Lessee] and our Managing Director in relation to the possibility of negotiations for lease extension/renewal. Obviously if Standard Life are aware of this they may not be interested in selling or take the massive profit for themselves if they sell it.” iv) Only minutes after this exchange Mr Bush on behalf of Topland (under the pretext, according to Mr Gatt, of having discovered Standard Life 's ownership of the Property during research for an impending rent review) made an unsolicited email approach to Standard Life expressing Topland's interest in acquiring the Property for a sum significantly in excess of its acquisition cost.[14]LSM’s approach to Topland was not authorised by the Lessee. In separate proceedings commenced on 17 September 2008, the Lessee alleges that LSM’s conduct with regard to Topland in this (and other respects) was a breach of fiduciary duty, a breach of confidence and a breach of their contractual duties. The Lessee contends that LSM’s contact with Topland in this respect was made pursuant to an agreement between Topland and LSM whereby Topland agreed to pay LSM a fee of 1% for introducing it to the Property on the basis that Topland purchased the Property with a regeared/restructured lease.[15]The rent review was concluded in late 2002. Thereafter, in February 2003 Mr Bush approached Standard Life again, enquiring whether Standard Life wished to sell the freehold of the Property. In May 2003 Mr Bush made an offer on behalf of Topland to acquire the freehold of the Property. After subsequent negotiations, the offer was increased and was accepted by Standard Life subject to contract in early June 2003, in the belief that the Lessee did not wish to regear the Lease. Mr Beazley, who appears for Topland, suggests that there is a material omission in this narrative in that, after the elapse of some months between February and May, the approach which eventually resulted in the sale came from Standard Life to Topland not from Topland to Standard Life. I will return to this later.[16]In the meantime, however, LSM had been liaising with Topland concerning a regear of the Lease in the event that Standard Life sold to Topland. The Lessee alleges that LSM was misleading the Lessee as to both Standard Life’s intentions in relation to the Property and subsequently as to the position with Topland, once Topland became the prospective purchaser, and there is prima facie evidence in support of that.[17]On 1 October 2003, unaware of the Lessee’s wish to regear the Lease, Standard Life sold the freehold of the Property to Topland for the agreed price. On the same day, on LSM’s advice, the Lessee surrendered the Lease to Topland and entered into a new lease for a term for 35 years with a considerable reduction in the rent payable for the first year but with a 2.5% increase in rent every year of the 35 year term. Standard Life was unaware of this transaction.[18]The effect of this regear, according to Standard Life, was to increase the value of the freehold interest in the Property from the agreed purchase price by about 30%. Topland does not accept that the Property was worth anything like the figure suggested by Standard Life.

February 2006 to September 2008: Contact between the Lessee and Standard Life

[19]Prior to February 2006 Standard Life was unaware of the immediate regear which took place following its sale of the Property to Topland on 1 October 2003. In February 2006, Standard Life was contacted by the Lessee which was seeking its assistance in relation to transactions involving LSM. The Lessee was investigating LSM’s conduct in relation to the rent review of the Property. Standard Life learnt, for the first time, that there had been a regear of the Lease in October 2003. Standard Life also learnt that the Lessee was concerned that LSM had not carried out its instructions to approach Standard Life to see whether it was interested in regearing the Lease and that LSM had not passed on to the Lessee the fact that Standard Life was willing to negotiate a regear.[20]The Lessee’s email to Herbert Smith (who act for Standard Life) dated 1 March 2006, sets out certain key information which Standard Life itself acquired as a result. i) A regear of the Lease took place on the same day as Standard Life’s sale of the property to Topland. ii) The Lessee had instructed LSM at an early stage to check whether Standard Life was interested in a regear. LSM responded that Standard Life was not interested, that the Property was to be sold to Topland and that the Lessee would have to negotiate with them. iii) LSM had deliberately or negligently kept the truth of the Lessee’s and Standard Life’s wish to do a deal from each other. The Lessee was always keen to regear the Lease and accepted advice from LSM that that was impossible.[21]Clearly, it is said, LSM had therefore misled both the Lessee and Standard Life about their respective intentions concerning a regear, and had, for some reason then unknown to Standard Life, failed to act on the Lessee's clear instructions to enter into negotiations on the Lessee's behalf with Standard Life for a regear. One person to benefit from this conduct was Topland which had secured the benefit of the immediate regear.

September 2008 to June 2009: Contact between Standard Life and the SFO

[22]In July 2008 the SFO commenced an investigation into the circumstances surrounding the sale of the Property and the regear of the Lease. In 2005 the SFO had commenced an investigation in relation to another property leased by the Lessee. The investigation considered charges of corruption against Mr Bush and another individual, Eddie Zakay, (a director of the third defendant) and Andrew Smith of LSM in relation to the Property. The SFO's investigation was the subject of comment in a property journal which reported that Topland had been asked to provide documents to the SFO in relation to its dealings with the Property, and that LSM had offered Topland the other property just mentioned some years previously. Mr Chapman read that article and learnt of the apparent connection between Topland and LSM.[23]In September 2008, the Lessee issued a claim form against LSM and Mr Smith, claiming damages and other relief in respect of alleged breaches of fiduciary duty, deceit, negligence, breach of contract and/or conspiracy to injure/defraud in relation to their conduct of the rent review and the regear.[24]Also in September 2008, Mr Chapman was contacted by the SFO who wished to interview him about the Property. On 25 September 2008 Mr Chapman was sent the SFO Pack which comprised copies of 77 pages of documents to form the basis of the interview. The SFO stated that most of the documents emanated from Standard Life (or from a firm of surveyors and estate agents, being Standard Life's agents) but some were new to Standard Life. They were all deemed to be confidential.[25]Mr Chapman was interviewed by the SFO on 1 October 2008. The senior SFO investigator undertaking the interview did not indicate in the course of the interview that the contents of the interview were confidential. Mr Chapman was not asked to treat as confidential what passed between them in the interview.[26]The following points arose in this interview: i) Mr Chapman was asked about the exchange of emails between LSM and Topland on 20 November 2002 and asked whether Mr Shaw's summary of what Standard Life's position would be if they were aware of the possibility of the regear, was accurate (ie Standard Life would not want to sell or it would want to take the “massive profit” for itself). Mr Chapman confirmed it was and explained why. He was clearly, therefore, aware that both LSM and Topland had considered (and appreciated) that there was a “massive profit” to be made from a regear and that if Standard Life became aware of the possibility of a regear they would want to achieve that profit for themselves. He was also aware that Mr Shaw was suggesting Mr Bush commence negotiations with Standard Life immediately rather than wait. ii) Mr Chapman was also asked about Mr Bush's contact by email (only minutes after his exchange of emails with Mr Shaw suggesting immediately commencing negotiations) with Standard Life expressing interest in buying the Property. In the context of what had transpired between Mr Bush and Mr Shaw only minutes before, the timing of this email clearly raises questions as to what Mr Bush was doing. Mr Chapman agreed with the suggestion that the email to him had the element of a “cover story” on Mr Bush's part. iii) Mr Gatt submits (correctly I think) that there can be no sensible suggestion that the contents of this last email, being an email sent contemporaneously to Standard Life, can be the subject of any obligation of confidentiality. It is a matter to which Standard Life was entitled to have regard in considering the lawfulness of Topland and LSM's conduct. iv) Mr Chapman was also asked about the Lessee’s letter of 27 June 2003 instructing LSM to commence negotiations with Standard Life. [Being the Lessee’s letter, it is not the confidential information of Topland.] Standard Life already knew from its communications with the Lessee in 2006 that LSM had kept from Standard Life the Lessee's wish to regear the Lease. The email exchange on 20 November 2002 indicated a possible motive: the realisation by Topland (not Standard Life) of the “massive profit” to be gained on a regear.[27]The SFO emailed Mr Chapman on 2 October 2008 repeating that the pre-interview documents provided to him (ie the SFO Pack) needed to be kept confidential. The SFO indicated that the documents could be provided to Standard Life's legal advisers and that if permission was required to use the documents for a purpose other than assessing the interview or the impact of the information on Standard Life then a request should be made.[28]The SFO prepared a witness statement for Mr Chapman. It is clear that it was prepared using the transcripts of Mr Chapman's interview. A draft was sent to Mr Chapman on 21 October 2008. Mr Gatt says that there was no suggestion that the draft was confidential. It is true that there is nothing expressly relating to the draft about its confidentiality. Whether what had already been said about confidentiality in relation to the SFO Pack was enough for Mr Chapman (and indeed Standard Life itself) to understand that confidentiality attached to the draft is a different matter. The SFO, however, appeared to accept that Mr Chapman might need the SFO Pack in order to read and approve the draft witness statement as they offered to send him an additional set of those documents: they stated:
“You should still have possession of copies of the documents referred to in your draft statement however if they are not readily available I will gladly send up an additional set of copies.”
[29]On 11 December 2008, Mr Chapman sent a signed copy of his witness statement to the SFO. Mr Gatt says that the contents of this statement are important because, whatever disagreements there are between the SFO and Standard Life as to what permission the SFO gave, the SFO accepts that it “had and continues to have no objection to Standard Life relying on the statement of Mr Chapman. This would have applied to any exhibits it contained, if it had any.” This, Mr Gatt submits, is an important admission on the SFO's part. The SFO also accepts that it did not “seek to impose any obligation of confidence on Mr Chapman in respect of his evidence, which would include any exhibits had his statement had any.”[30]That does not present quite the whole picture as will become apparent.[31]On 5 January 2009, Herbert Smith wrote to the SFO requesting copies of further documents relating to Topland. This request was refused on 13 March 2009 when the SFO reiterated that the SFO Pack was provided for the purpose of Mr Chapman's interview and on condition that it not be divulged to outside parties.[32]On 30 June 2009 the SFO informed Standard Life that it had decided to discontinue the investigation into the Property and the other property which I have mentioned.

The Lessee’s First Action

[33]On 22 October 2009, Standard Life learnt that the Lessee had commenced proceedings against LSM and Mr Smith (of LSM) on 17 September 2008, that Particulars of Claim had been served on 13 January 2009 and a Defence served on 22 May 2009. With effect from 22 May 2009 therefore these documents had been in the public domain and available for public inspection under the CPR. These documents, according to Mr Gatt, set out the key facts supporting Standard Life's claims against Topland and LSM together with substantially more factual detail as to the alleged wrongdoing of LSM and an alleged agreement between LSM and Topland for the payment of a 1% fee to LSM by Topland for its introduction to the Property.[34]Standard Life obtained a copy of the Claim Form and the statements of case in the Lessee's action on 4 November 2009 and on the same day served a copy of its Particulars of Claim in this Action.[35]On 4 May 2010, the Lessee issued a further set of proceedings. The defendants are Topland, Mr Bush and Mr Zakay. Claims are made in respect of the rent review, and the regearing of the Lease. It alleges deceit, bribery, dishonest assistance and breach of confidence by all the defendants; conspiracy on the part of the defendants, LSM and Mr Smith to injure the Lessee and deceit and breach of duties (fiduciary, duties, duties of confidence, common law duties and contractual duties) by LSM and Mr Smith. The lengthy particulars of claim came into the public domain under the CPR during the course of the hearing.

The legal context: the Criminal Justice Act 1987 (“the CJA 1987”)

[36]The CJA 1987 provides in section 1 for the constitution of the SFO and for the appointment by the Attorney General of the Director. The Director may investigate any suspected offence which appears to him on reasonable grounds to involve serious or complex fraud.[37]The Director’s investigatory powers are to be found in section 2. These powers are to be exercisable in any case in which it appears to him that there is good reason to do so for the purpose of investigating the affairs, or any aspect of the affairs, of any person but (so far as material to the present case) only for the purposes of an investigation under section 1: see section 2(1).[38]The powers with which I am concerned are found in subsections (2) and (3) which provide that the Director may: i) by notice in writing require the person under investigation (or any other person whom he has reason to believe has relevant information) to answer questions and provide information with respect to any matter relevant to the investigation; and ii) by notice in writing require the person under investigation or any other person to produce documents which appear to him to relate to any matter relevant to the investigation.[39]In the absence of compliance, subsequent provisions of section 2 provide for the issue of a warrant providing for entry to premises and for the taking of possession of documents. And it is provided by subsection (13) that any person failing without reasonable excuse to comply with a requirement imposed on him under section 2 shall be guilty of an offence.[40]Section 3 deals with which information obtained by the SFO can be disclosed to a third party. It includes the following: “(4) Without prejudice to his power to enter into agreements apart from this subsection, the Director may enter into a written agreement for the supply of information to or by him subject, in either case, to an obligation not to disclose the information concerned otherwise than for a specified purpose. (5) Subject to subsections (1) and (3) above and to any provision of an agreement for the supply of information which restricts the disclosure of the information supplied, information obtained by any person in his capacity as a member of the Serious Fraud Office may be disclosed by any member of that Office designated by the Director for the purposes of this subsection—(a) to any government department or Northern Ireland department or other authority or body discharging its functions on behalf of the Crown (including the Crown in right of Her Majesty's Government in Northern Ireland);(b) to any competent authority;(c) for the purposes of any criminal investigation or criminal proceedings, whether in the United Kingdom or elsewhere;(d) for the purposes of assisting any public or other authority for the time being designated for the purposes of this paragraph by an order made by the Secretary of State to discharge any functions which are specified in the order. (6) The following are competent authorities for the purposes of subsection (5) above – [there follows a list in paragraphs (a) to (o) which is not relevant for present purposes] (7) An order under subsection (5)(d) above may impose conditions subject to which, and otherwise restrict the circumstances in which, information may be disclosed under that paragraph.” (a) to any government department or Northern Ireland department or other authority or body discharging its functions on behalf of the Crown (including the Crown in right of Her Majesty's Government in Northern Ireland); (b) to any competent authority; (c) for the purposes of any criminal investigation or criminal proceedings, whether in the United Kingdom or elsewhere; (d) for the purposes of assisting any public or other authority for the time being designated for the purposes of this paragraph by an order made by the Secretary of State to discharge any functions which are specified in the order.[41]It is apparent from these provisions that the power of the SFO to disclose documents is constrained. Although it does not say so expressly, Mr Beazley submits that it is implicit that one of the “gateways” under section 3(5) must be available before any disclosure can properly be made. The relevant gateway in the present case is section 3(5)(c) in reliance on which the SFO provided Mr A with the SFO Pack. In the absence of a gateway, the SFO is not permitted to disclose material which it has acquired pursuant to its statutory powers and any person to whom such material is disclosed under section 3(5)(c) is not free to disclose it to whomsoever he/she wishes.[42]His principal submission is that there is a balance to be struck between the need for compulsory disclosure of documents (and other information) on the one hand, and the protection of the rights and interests of those who are compelled to disclose their documents and information on the other. In the present case, the balance is to be struck by preventing (at least without the consent of the court) the use of the SFO Pack in civil proceedings brought by Standard Life against Topland and LSM. This is not to be done simply by the granting of injunctive relief to restrain the misuse of confidential information. Rather, the court should view the use which Standard Life has actually made of the SFO Pack (which it has done without the consent of the court) as an abuse of process and strike out Standard Life’s action. Standard Life is not precluded from seeking the consent of the court to use the SFO Pack. But if it obtains such consent and then commences a new action, it will be met with limitation defences which are not available in relation to the existing claim which was brought within the relevant time limits.

Implied undertakings

[43]There are several authorities which I need to look at. The first is Morris v Director of the Serious Fraud Office [1993] Ch 372. This was a case in which liquidators of an insolvent bank sought production, under section 236 Insolvency Act 1986, of documents which had been obtained by the SFO from the bank’s auditors under section 2(3) CJA 1987 and from the police and other persons.[44]It was held that the powers and functions of the SFO were confined to those expressly or impliedly conferred or imposed on it by statute; that section 3(5) CJA 1987 did not expressly authorise it voluntarily to disclose to liquidators or other office-holders information obtained either directly under its compulsory powers of criminal investigation or with the assistance of the police acting under their statutory powers, and no such power could be implied.[45]It was also held that, where an office-holder sought an order under section 236 to compel a statutory body to produce documents relating to an insolvent company which had been obtained under compulsory powers, those from whom the documents had been seized or their true owners were in general entitled to an opportunity to advance any proper objections to the making of the order, and the court, in the exercise of its discretion, was obliged to balance the potential prejudice to the office-holder if the order were not made against that which might be suffered not only by the statutory body but also by such third parties if it were made.[46]At p 380F, the Vice-Chancellor, Sir Donald Nicholls, said this:
“Since the S.F.O. is the creature of statute, its powers and functions comprise, and are confined to, the powers and functions expressly or impliedly conferred or imposed upon it by the statute. The information obtained by the S.F.O. is obtained to enable or assist it to carry out its primary functions of investigating serious fraud and instituting and conducting criminal proceedings relating to serious fraud. Section 3 authorises disclosure of that information to other persons, but liquidators and provisional liquidators and administrators and administrative receivers, conveniently referred to as “office-holders,” are not included in the list of those to whom disclosure may be made In the absence of an express power to make disclosure to office-holders, is a power to make disclosure to them to be implied? In my view it is not. Whether the list in section 3 is to be regarded as exhaustive for all purposes in respect of information obtained by the S.F.O. from all types of sources is not a matter I need pursue on this application. Suffice to say, I can see no justification for implying a general power for the S.F.O. to disclose information, obtained in the exercise of compulsory powers conferred by the Act, to persons not named in section 3. That, surely, is only what one would expect. The compulsory powers of investigation exist to facilitate the discharge by the S.F.O. of its statutory investigative functions. The powers conferred by section 2 are exercisable only for the purposes of an investigation under section 1. When information is obtained in exercise of those powers the S.F.O. may use the information for those purposes and purposes reasonably incidental thereto and such other purposes as may be authorised by statute, but not otherwise. Compulsory powers are not to be regarded as encroaching more upon the rights of individuals than is fairly and reasonably necessary to achieve the purpose for which the powers were created. That is to be taken as the intention of Parliament, unless the contrary is clearly apparent.”
[47]It is to be noted that the Vice-Chancellor, in this part of his judgment, was addressing the question of disclosure of documents by the SFO. He was not addressing what could be done by the recipient himself with documents properly disclosed to him by the SFO. Similarly, in later parts of the judgment (see pp 383D – 384E), the Vice-Chancellor considered the protection to be afforded to a person from whom documents have been seized (and the same would go for documents compulsorily acquired) or to the true owner. He concluded that, in general, the person from whom documents have been seized and the true owner of the documents are entitled to an opportunity to present to the court any ground of objection they may have to the production of the documents. What is said by Mr Beazley, of course, is that what the Vice-Chancellor said in relation to disclosure applies equally to the use of the documents by the recipient; he can no more disclose them to third parties than could the SFO itself. And if the recipient wishes to use them for some purpose of his own, in particular, the bringing of civil proceedings, he must obtain the consent of the court before doing so.[48]Taylor v Serious Fraud Office [1999] 2 AC 177 concerned the use of unused material disclosed to the defendants D and F in criminal proceedings by the prosecution in those proceedings. That material was shown to the first plaintiff in the subject proceedings when he was asked to give evidence by F’s solicitors on behalf of F. The plaintiffs regarded the material as defamatory; they commenced a libel action and sought to rely on the unused material in support of their claim. The main issue was whether such material was subject to an implied undertaking (similar to the well-known implied undertaking in relation to documents disclosed in civil proceedings) not to use the material other than for the purposes of the defendant’s defence in the criminal proceedings. The judge at first instance had struck out the claim as an abuse of process, holding that the disclosure had been subject to an implied undertaking as just described. The Court of Appeal held that there was no such implied undertaking. They regarded themselves bound by the then unreported decision of Mahon v Rahn (now see [1998] QB 424) to reject the proposition that such an undertaking applied in criminal proceedings.[49]The House of Lords, disapproving Mahon v Rahn, held that the disclosure of documents by the prosecution as unused material under its common law obligations did generate an implied undertaking not to use them for any collateral purpose. Lord Hoffmann discussed the nature of such an undertaking in section 3 of his speech (under the heading “The two principles”). He said this:
“The concept of an implied undertaking originated in the law of discovery in civil proceedings. A solicitor or litigant who receives documents by way of discovery is treated as if he had given an undertaking not to use them for any purpose other than the conduct of the litigation. As Hobhouse J. pointed out in Prudential Assurance Co Ltd v. Fountain Page Ltd [1991] 1 W.L.R. 756, 764 the undertaking is in reality an obligation imposed by operation of law by virtue of the circumstances in which the document or information is obtained. The reasons for imposing such an obligation were explained by Lord Keith of Kinkel in Home Office v. Harman [1983] 1 A.C. 280, 308: “Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant's affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done.”
The question in this appeal is whether the public interest in the administration of justice requires the application of an analogous principle to documents disclosed by the prosecution to the defence in criminal proceedings.” “Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant's affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done.”[50]It is worth quoting what Hobhouse J actually said (see at p 764):
“This undertaking is implied whether the court expressly requires it or not. The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle. It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information. However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from. It is an obligation which arises from legal process and therefore is within the control of the court, gives rise to direct sanctions which the court may impose (viz. contempt of court) and can be relieved or modified by an order of the court. It is thus a formulation of the obligation which has merit and convenience and enables it to be treated flexibly having regard to circumstances of any particular case. Treating the duty as one which is owed to the court and breach of which is contempt of court also involves the principle that such contempts of court can be restrained by injunction and that any person who knowingly aids a contempt or does acts which are inconsistent with the undertaking is himself in contempt and liable to sanctions: see Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd [1975] Q.B. 613.”
[51]The approach of Lord Hoffmann (himself adopting that of Hobhouse J) which sees the implied undertaking as an obligation imposed by operation of law reflects how Lord Keith in Home Office v Harman described what Ms Harman had accepted namely that she and her clients “were placed under an implied obligation not to make use of the documents for any purpose other than the proper conduct of the litigation in the course of which the order was made”. In the same case, Lord Scarman (who dissented in the result but not on this aspect) said this: “But there is also the general right of the citizen to privacy, which includes a right to keep his own documents to himself. It is this countervailing right with which your Lordships are concerned. The law imposes the obligation under consideration in this appeal for the protection of the party compelled to make discovery of documents in legal proceedings. It does so by implying an undertaking by the party to whom discovery is made and his solicitor not to use them for any purpose other than that of the action. Disregard of the undertaking is enforceable by the party for whose benefit it is exacted in committal proceedings for contempt of court. The specific object of the law in imposing the obligation was described by Lord Denning M.R. in Riddick v. Thames Board Mills Ltd [1977] Q.B. 881, 896 in these words: “Compulsion [to disclose] is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires.”“ “Compulsion [to disclose] is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires.”“[52]Riddick, it should be noted, was a case where the allegedly defamatory document was disclosed in the course of other proceedings brought by the plaintiff in connection with his dismissal by the plaintiff. It was another case concerning the right to use documents in litigation which had only been made available to the plaintiff by the court’s own process of discovery in another action.[53]It seems to me that, just as much in the criminal context of use of unused material as in the civil context of use of material produced on discovery (and now disclosure), the implied obligation is in reality an obligation imposed by operation of law by virtue of the circumstances in which the document or information is obtained.[54]Mr Beazley has cited extensively from the speeches of Lord Hoffmann and Lord Hope in Taylor v SFO drawing attention to these observations:• The implied undertaking arises irrespective of the contents of the documents. All collateral use is excluded, whether in other litigation or by way of publication. The undertaking may be varied or released. (See p 208 B-E) I add that, although variation or release was by then dealt with under RSC Ord 24, I see no reason to doubt that the court had an inherent power to vary or release an undertaking given to it.• He saw the implied undertaking which was held to exist in relation to disclosure in criminal cases as “a matter of justice and fairness, to ensure that his privacy and confidentiality are not invaded more than is absolutely necessary for the purposes of justice”. (See p 210 G) But that is to quote slightly out of context. The words immediately preceding those quoted were “I think it more”: Lord Hoffmann was contrasting how he saw the position as compared with what had been submitted namely that the implied undertaking in civil proceedings was merely an inducement to a litigant to disclose documents.• The interests of persons only remotely interested in the privacy and confidentiality were to be recognised. Thus, at p 211 one finds these passages:
“They [persons helping the police or other authorities whether voluntarily or under compulsion] must naturally accept that the interests of justice may in the end require the publication of the information or at any rate its disclosure to the accused for the purposes of enabling him to conduct his defence. But there seems to me no reason why the law should not encourage their assistance by offering them the assurance that, subject to these overriding requirements, their privacy and confidentiality will be respected. One must also consider the interests of persons who are mentioned in the statements. …… But there seems to me no reason why the accused should be free, outside court, to publish such statements to the world at large. The possibility of a defamation action is for most people too expensive and impractical to amount to an adequate remedy.”
[55]The implied undertaking is one which is given to the court: it is not, in civil litigation, one given by one party to another. That is why it is punishable as a contempt and does not simply sound in damages. Similarly, in a criminal case the undertaking is not given to the person making disclosure. Thus, in Taylor v SFO it was not one given by F or his solicitors to the SFO. The implied undertaking is, in any case, only one aspect of the obligation, arising as a matter of law, not to use the documents for a collateral purpose. The implied undertaking, in Taylor v SFO, was presumably given to the Crown Court. Nonetheless, the High Court could strike out the libel proceedings as an abuse of process (that is to say and abuse of the High Court’s own process, not the process of the Crown Court) because, according to Mr Beazley, the obligation not to use the documents for a collateral purpose was a general obligation arising as a matter of law and which ought to be recognised by all courts.[56]The next case I wish to refer to is Preston Borough Council v McGrath [2000] (12 May 2000) [2000] WL 571189. In this action, the Council claimed damages against Mr McGrath for breach of fiduciary duty in his position as a councillor, the allegation being that he had received undisclosed financial benefits from a subsidiary or associated company of Balfour Beatty Ltd (“BB”). Reference was made in the Council’s pleading to certain Heads of Agreement detailing an alleged payment by B to Mr McGrath. He immediately protested about the use of these documents which he said the Council only knew about because of information provided to it by the police. In that context, the police had carried out an investigation into suspected corruption in relation to officers of the Council. Although he was the defendant to certain criminal proceedings, none was ever prosecuted to trial against him. In the course of their investigations, the police had obtained a copy of the Heads of Agreement (seemingly provided voluntarily) from BB. The contents of the Heads of Agreement became known to the Chief Executive of the Council as the result of the provision to him, with the consent of the maker, of a witness statement referring to it. Mr McGrath later claimed that the Council’s claim relied on the witness statement supplied to the police and that the Council was thereby in breach of an implied undertaking given to the Crown Court in relation to the use of material obtained during the prosecution of the criminal proceedings. He applied to strike out the proceedings as an abuse of the process of the court. The Council had not obtained the consent of the court to use the material; and so Mr McGrath asserted that the Council was in contempt of court. I should note, before proceeding further, that the documents were BB’s documents and not Mr McGrath’s documents; he could not claim ownership of them and nor was there, on the facts, any rights vested in him to prevent use of the documents as confidential information.[57]The basis for the strike-out application depended on establishing that the Council’s proceedings had been brought making use of material in contempt of court. It was not argued that if the Council had wrongfully obtained evidence in some way, other than in contempt of court, that the remedy of strike out should be available. As Waller LJ said, this was a recognition of the fact that the remedy in such circumstances would be limited to an application for an injunction to restrain the use of such evidence; and the availability of such a remedy would depend on Mr McGrath establishing a cause of action or an equitable entitlement to such a remedy.[58]Waller LJ identified the critical issue as being whether the police and/or the Council were bound by any implied undertaking to the court not to use the material obtained from BB for any purpose other than the criminal proceedings, and not to use the witness statement which I have referred to for any purpose other than any criminal proceedings that might be pursued. He referred to Taylor v Serious Fraud Office explaining how the implied undertaking is generated and quoting the passage which I have set out in the third bullet point under paragraph 54 above.[59]The argument then focused on the interests of witnesses and other who come forward. It is the protection of those interests which gives rise to the implied undertaking and so, it was said, the prosecution must be under the same implied obligation to the court in relation any to material which the prosecuting authorities gather during the criminal investigation because the same interests must be protected. Waller LJ rejected that argument:
“The argument is however logically flawed. The fact that the identified mischief generates an implied undertaking to the court when the subject matter is discovery in the course of proceedings in court, does not mean that the same mischief must generate an undertaking to the court where the police are using their powers outside court process. To put the same point more explicitly. I accept that there are, as Marcel v Commissioner of Police [1992] Ch 225 demonstrates, constraints placed on the prosecuting authorities. But once it is appreciated that the contention of Mr McGrath has to be that the constraints which should be placed on the prosecuting authorities arise whether or not proceedings are on foot and whether or not proceedings are ever brought, it can be seen how impossible it is to suggest that constraints are imposed by some form of undertaking to the court.”
[60]That is entirely consistent with what Lord Hoffmann was saying in Taylor v Serious Fraud Office, in particular in the passage which Waller LJ set out and which I too have quoted. The law should, no doubt, protect the interests of those compelled to provide documents and information and the confidentiality and privacy of those identified in documents which are disclosed under compulsory powers subject to any overriding requirements of justice.[61]That, however, is not to say that those interests must in all respects be protected as if the use of the relevant material for any purpose other than the relevant criminal prosecution were a contempt of court, as the passages quoted in paragraph 59 above demonstrates.[62]The same points can be made in the present case in the context of the CJA 1987. There are, of course, constraints on the use which can be made by the SFO of the material which it has obtained under its statutory powers. It could not, for instance, publish the contents of a document in a newspaper unless, perhaps, it were appropriate and proportionate to do so for some reason connected with the criminal investigation. The persons who had been forced to disclose the documents, and perhaps others whose confidentiality and privacy would be infringed by publication, might obtain injunctive relief. But by no stretch of the imagination could it be said that such publication would be a contempt of court since no prosecution might yet have been commenced or even been decided upon. Contrast publication in a case where documents have been disclosed in the context of proceedings, whether civil or criminal, when such publication would be a clear contempt of court.[63]Considerations such as that show conclusively, to my mind, that the disclosure of information by a person to the SFO pursuant to the latter’s statutory powers under the CJA 1987 does not give rise to any implied undertaking to any court not to use the documents other than for the purposes of a prosecution, actual or potential or any undertaking to the court not to provide them to any person other than through one of the gateways under section 3.[64]I am unpersuaded by Mr Beazley’s submissions to the contrary in the context of abuse of process. He submits that Preston Borough Council v McGrath is not helpful to Standard Life. Amongst other matters: i) He says that the approach of Waller LJ in reaching his decision on the powers of the police are simply inapplicable to the situation of the SFO. The SFO is subject not merely to a “duty of confidence”, but to a clear and explicit statutory framework governing in detail the circumstances in which information may be disclosed by it. That is true and it may be relevant to the question whether the court should in its discretion prevent the use of the disclosed material in civil proceedings. But what Waller LJ had to say in the context of contempt of court appears to me to have clear parallels in relation to use of documents disclosed as a result of the exercise by the SFO of its powers under the CJA 1987. And just as what he said in relation to contempt is relevant to a case concerned with the CJA 1987, so too is the approach in that case to abuse of process also relevant. ii) The documents were supplied by the police to the Council as a “victim” to enable it to advance a civil claim. The Court of Appeal was being asked to consider the ability of the police in ordinary circumstances voluntarily to disclose documents for use in civil proceedings. In the present case, Mr Beazley says that this was not, and, never has been, the purpose of the SFO. I agree that that is a distinction, but again it does not, in my judgment, touch on the issue of contempt or (as I will explain) abuse of process. And the same goes for Mr Beazley’s point that the documents could not properly have been provided for the purpose of bringing civil proceedings.[65]Mr Beazley also submits that, to the extent that the decision in Preston Borough Council v McGrath turned on the lack of court proceedings in which the undertaking could be given, it did not take account of the fact that the implied undertaking is only one way of giving effect to the obligation not to use for a collateral purpose. If he is suggesting that the decision is wrong, that is not open to him in this Court. But he goes on to say that, in any event, it surely can make no difference as a matter of policy whether the documents are obtained or disclosed before or after the commencement of criminal proceedings. Why should compelled documents be subject to collateral use (or not) by virtue of whether or not proceedings are or have been or will be commenced? All the policy, and other (including privacy), reasons for restraint identified in cases such as Taylor apply regardless of the existence of proceedings.[66]But this, with respect, misses the point. The central thrust of Mr Beazley’s argument is to establish that use of the documents is an abuse since, if it is an abuse, the proceedings must, he submits, be struck out. The consequence of that would be that(a) Standard Life will have to commence new proceedings after having obtained, if it can, the consent of the court to use the documents and(b) that this will be after the expiry of the primary limitation period which has already expired so that Standard Life will have to rely on section 32 Limitation Act 1980. In contrast, if there is no abuse, the question whether the Court should now prevent use of the documents in the existing proceedings will depend on a number of factors of which the policy matters identified by Mr Beazley are of course an important aspect but ones which can be displaced in the balancing exercise which must be carried out.[67]Then he says that the Court of Appeal does not appear to have considered or addressed arguments along the lines that it is an obligation of the recipient only to use the information for the purpose for which it was given. For my part, I do not see how that can make any difference to Waller LJ’s central reasoning. He rejected the argument based on protecting the interests of witnesses and those who come forward to the police as logically flawed so far as establishing an undertaking to the court is concerned. The passages which I have quoted at paragraph 59 above demonstrate the logical flaw in any argument that the SFO is under any implied undertaking to the court merely by virtue of obtaining documents and information pursuant to its statutory powers. The same must follow, in my judgment, in relation to a person who receives documents or information through one of the gateways or even without a gateway at all.

Conclusion on implied undertaking

[68]In my judgment, therefore, the conclusion to be drawn from the statutory material and the authorities which I have considered is that no implied undertaking to the Court (whether the Crown Court or any other Court) is given by the SFO when it obtains documents or information pursuant to its compulsory powers under the CJA 1987 nor is any similar implied obligation given by a recipient who properly or indeed improperly receives such documents or information through one of the gateways in section 3, and in particular where it is disclosed by the SFO to a third party for the purposes of its investigation. Accordingly, neither Mr Chapman nor Standard Life were under any such implied obligation to the court. Whether either Standard Life or Mr Chapman would have been under such an implied obligation if the disclosure to Mr Chapman of documents and information had been in the course of, and as part of, a criminal prosecution which had already been commenced, I do not need to decide.

Abuse of process

[69]The question then is whether, when a person seeks to use the documents properly disclosed to him through the gateway under section 3(5)(c) of the CJA 1987, by relying on them to found a civil claim and to bring proceedings in a civil court, his actions are an abuse of process even though they are not a contempt of court. I will turn later in this judgment to consider whether such use of documents disclosed under compulsion should attract some form of injunctive relief; but for the moment, I address only the question of abuse of the court’s process for the purposes of CPR 3.4(2)(b).[70]Abuse, in this context of striking out, is about using the process of the court for an improper purpose or in a way which is contrary to the court’s own injunction or undertaking given to it. As an example of an abuse of the court’s own process, I mention Nomura International plc v Granada Group Ltd [2007] EWHC 642 (Comm) as an example since it is relied on by Topland. In that case, the claimant had issued a claim form shortly before the expiry of a limitation period. At that time, it did not know whether it had a claim or not. It had issued the claim form to stop limitation running in case it had a claim.[71]Cooke J identified the issue as follows:
“In my judgment, when regard is had to these authorities the key question must always be whether or not, at the time of issuing a writ, the claimant was in a position properly to identify the essence of the tort or breach of contract complained of and if given appropriate time to marshall what it knew, to formulate particulars of claim. If the claimant was not in a position to do so, then the claimant could have no present intention of prosecuting proceedings, since it had no known basis for doing so. Whilst therefore the absence of present intention to prosecute proceedings is not enough to constitute an abuse of process, without the additional absence of known valid grounds for a claim, the latter carries with it, as a matter of necessity, the former. If a claimant cannot do that which is necessary to prosecute the claim by setting out the basis of it, even in a rudimentary way, a claimant has no business to issue a claim form at all “in the hope that something may turn up”
. The effect of issuing a writ or claim form in such circumstances is, so the plaintiff/claimant hopes, to stop the limitation period running and thus deprive the defendant of a potential limitation defence. The plaintiff/claimant thus, unilaterally, by its own action, seeks to achieve for itself an extension of the time allowed by statute for the commencement of an action, even though it is in no position properly to formulate a claim against the relevant defendant. That must, in my judgment, be an abuse of process and one for which there can be no remedy save that of striking out the proceedings so as to deprive the claimant of its putative advantage. The illegitimate benefit hopefully achieved can only be nullified by this means. Whatever powers may be available to the court for other abuses, if this is an abuse, there is only one suitable sanction.”(see [37])[72]He went on to say this: “….if a claimant cannot point to any particular instance of negligence, breach of duty, negligent misstatement or negligent misrepresentation at the time of the issue of the claim form, he cannot have any valid basis for his claim at that point and has no business issuing a claim form to stop the running of time in respect of some claim which he hopes in the future to be able to formulate. That is the key element of abuse in this case”. (see [47])[73]That, of course, is nowhere near the present case on its facts. In the present case, Standard Life knew perfectly well the facts on which it wanted to rely in its claim form and particulars of claim. What is said in effect, however, is that Standard Life was not entitled to rely on the disclosed documents to formulate its claim so that everything which was said by Cooke J has an echo in the present case. What cannot be properly be used should be ignored; and if the SFO Pack is ignored, Standard Life, it is said, has no case.[74]I do not find the decision in Nomura of any assistance in the present case. To take the words of Cooke J out of context and to attempt to apply them to an entirely different factual situation is to beg the very question which is in issue, namely whether reliance on documents obtained by the SFO in court in a case such as the present is an abuse of the court’s own process. The court’s principal function might be seen as the resolution of existing disputes between claimants and defendants. If there is no existing dispute, then it is not open to a party to formulate a claim by reference to what might (or might not) turn up. If a present claim cannot be formulated, there is no cause of action, and if there is no cause of action, to bring a claim it is an abuse of process, at least if the purpose is to evade a limitation period. That is what Nomura is concerned with.[75]There is no parallel where a claim relies on identified facts. If those facts are based on material which has been obtained under compulsory powers then the defendant may be entitled to prevent the use of that material but this will not, as I see it, be because the use would amount to an abuse of process. Rather, it will be based on some right or interest which the defendant is able to assert directly against the claimant and to which effect will be given by injunctive relief or other relief (such as striking out reference to the offending material).[76]I note in passing that Mr Beazley correctly states that Riddick v Thames Board Mills Ltd [1977] QB 881 was a case of abuse of process and not of contempt of court. I think he refers to it to show that there can be an abuse without a contempt of court. But the point to make about Riddick is that it concerned breach of an implied undertaking to the court. It does not matter whether you care to describe the particular use of material disclosed in support of other proceedings as an abuse or as a contempt. Either way, the result which flows – striking out the proceedings – arises out of an undertaking which has been given to the court.[77]There is further authority which supports the proposition that the concept of abuse of process is not concerned with a situation where a party uses information in breach of an obligation owed other than to the court: see Land Securities plc v Fladgate Fielder [2009] EWCA Civ 1402. I agree with Mr Gatt when he says that the following principles emerge from that decision in the context of the Court's discussion of the tort of abuse of process: i) The circumstances which the Court will regard as conduct amounting to an abuse are not narrowly defined. It is necessary for the courts to have the power to control their proceedings and to prevent abuse, whatever guise it may take. ii) Abuse of process involves a misuse of the Court's process. It is concerned not with the merits of the claim but with the purpose for which the proceedings are brought. iii) The essential element in abuse of process is the misuse of the Court's process to achieve something not available in the course of (or by means of) properly conducted proceedings. Whether the question is one of staying, or striking out the proceedings themselves or of the existence of a cause of action for the tort of abuse of process, the claimant/applicant must be able to establish that the defendant/respondent's predominant purpose in bringing the proceedings was not to obtain the remedy the law offers but to achieve some other object that lies outside the range of remedies that the law grants. iv) The court's process is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims without an ulterior motive or seeking a collateral advantage beyond what the law offers.[78]Moore-Bick LJ (with whose judgment Mummery LJ agreed) said that the tort of abuse of process and the procedural remedy of strike out were governed by the same principles: “In Broxton v McClelland [1995] EMLR 485 Simon Brown LJ identified as the essential element in abuse of process the misuse of the court's process to achieve something not available in the course of (or, I would say, by means of) properly conducted proceedings. I respectfully agree. It seems to me that whether the question is one of staying or striking out the proceedings themselves or of the existence of a cause of action, the claimant must be able to establish that the defendant's predominant purpose in bringing the proceedings is not to obtain the remedy that the law offers (disregarding for this purpose the use he may seek to make of that remedy once he has obtained it) but to achieve some other object that lies outside the range of remedies that the law grants. At the level of this principle I see no difficulty in assimilating the decisions on abuse of process as a tort with the decisions concerning staying or striking out the proceedings”(see [89] - emphasis added)

Conclusion on abuse of the court’s process

[79]In my judgment, there is no abuse of the Court’s process, any more than there is a contempt of court, in the mere use in civil proceedings by the recipient of documents or information from the SFO (at least before the commencement of any criminal proceedings – I again say nothing about the position after that) obtained by the SFO pursuant to its statutory powers. I say “mere” use because there may be special features about a particular case which make the use of those documents or that information, coupled with other factors, an abuse. In other words, the absence of an implied undertaking means not only that there is no contempt of court in using the documents or information for purposes other than the relevant criminal investigation, but there is no abuse of the court’s process in doing so either.[80]Before leaving the issue of abuse of process, I should mention the other limb of CPR 3.4(2)(b) namely that the statement of case “is otherwise likely to obstruct the just disposal of the proceedings”. I do not think that any reliance can be placed on that. Indeed, the whole difficulty with the use of documents obtained by the SFO for purposes other than the criminal investigation or prosecution is to strike the right balance between two principles, one of which is to achieve “a fair trial on full evidence”: see paragraph 92 below. It seems to me that the exclusion of important and relevant evidence, indeed the complete suppression of a civil claim, would itself prevent, rather than promote, the just disposal of the proceedings; but it is a result which the vital countervailing interest of preserving confidentiality in documents compulsorily obtained may dictate.

The status of documents and information received from the SFO

[81]From what I have said already, it is apparent that the SFO is constrained in the use which it may make of documents or information it has obtained. In the context of the present case, we are concerned with disclosure by the SFO under section 3(5)(c) of the CJA 1987 which allows the SFO to disclose documents to a third party for the purposes of any criminal investigation or criminal proceedings. It is clear to my mind that as a general rule the SFO itself is not entitled to disclose any material obtained by it except for the purposes of such investigation or proceedings. It is not necessary, or appropriate, in this judgment for me to consider the extent of the exceptions to that general rule although there clearly are some. Thus voluntary disclosure could be given if the person from whom the documents have been obtained consents (subject always to the observance of the ordinary legal rules designed to preserve the confidentiality and privacy of third parties). And, I would have thought, if the documents belong to a third party, that third party could consent to their use (subject to observance of those same legal rules). And there are without doubt circumstances in which the process of the court could lead to disclosure. Marcel v Commissioner of Police [1992] Ch 225 (“Marcel”) provides an example in an analogous context; and Morris v Director of the Serious Fraud Office provides an example in the context of the CJA 1987, indicating the protection to be afforded to the owner of the documents before an order is made.[82]So far as disclosure by the SFO is concerned, a person seeking to prevent disclosure may have a public law right enforceable through judicial review proceedings. He will also have remedies in private law: just as there is no undertaking to the court (and thus no contempt of court or abuse of process) when documents are obtained pursuant to statutory powers (unless the statute expressly provides for improper use to be a contempt of court, as it does under section 18 of the Criminal Procedure and Investigations Act 1996) so too, it seems to me, the CJA 1987 does not touch upon the private law rights which a person would otherwise have.[83]This is so whether those private law rights are sought to be enforced against the SFO or any person into whose hand the documents have come (as to which see below). The position is different from that discussed by Ferris J in Apple Corps Ltd v Apple Computers Inc [1992] 1 CMLR 969 at [84] to [92], addressing the question whether or not the use of documents produced in the course of legal proceedings was governed thereafter solely by the legal principles or Rules of Court which relate to use of such material to the exclusion of any private law rights.[84]What are these private law rights? A similar question was discussed at some length by Sir Nicolas Browne-Wilkinson V-C in Marcel. Although his actual decision was overruled in part, no criticism was made of his analysis of the available causes of action (which is to be found under the heading “Is there any cause of action?” starting at p 235G). The Vice-Chancellor mentioned a number of possible causes of action which had been suggested by counsel. He had grave doubts about all of them other than the one he actually addressed, namely a cause of action based on breach of confidence.[85]Putting the argument succinctly, he said this, starting at p 236B:
“In equity, a person who has given information or documents in confidence to another is entitled to insist on the observance of that confidence and to obtain an injunction to restrain the recipient of the information from breaching his duty. Further, any third party receiving such confidential information will be restrained from making any further disclosure of it if, at the time of the threatened further disclosure, the third party is aware of the confidentiality attached to the original communication. Such duty of confidence has been held to arise from contract, from the relationship of the parties (e.g. husband and wife, priest and penitent) and from the unilateral imposition of such a duty by the confider telling the confidant that the information is given in confidence. I was not referred to any case in which it has been held that a public authority which has obtained information or documents under compulsory powers has been held to come under a duty of confidence enforceable by the person who has been required to produce such documents or information. But in principle I can see no legal reason why such duty should not arise. As I have said, the existence of the duty does not depend on contract but can arise from the relationship between the parties and the circumstances of the communication. If a public authority is given compulsory powers to obtain information or documents for a limited purpose only and the carrying out of that purpose does not require the communication of such information to third parties, in my judgment the duty not to use such information or documents by communicating to third parties is inherent in the relationship between the parties.”
[86]Then, after considering a number of authorities, he concluded with this at p 237D:
“So, in my judgment, where the police or any other public authority use compulsory powers to obtain information and documents from the citizen, the relationship between them is such that the information or documents are received solely for those purposes for which the power was conferred and equity imposes on the public authority a duty not to disclose them to third parties, save under order of the court.”
[87]The Vice-Chancellor was focusing on the position of the police. In my judgment, a person (such as Mr Chapman in the present case) who properly receives documents by way of the gateway under section 3(5)(c) of the CJA 1987 is under the same duty as the SFO itself. He is not entitled to deal with the documents which he receives free from all constraints. It is obvious, I suggest, that such a person could not take the documents to the newspapers for publication.[88]In the context of the police or any other public authority, the Vice-Chancellor qualified the duty not to disclose by the words “save under order of the court”. He did so having just discussed what he described as the close analogy with documents obtained on discovery in civil proceedings. It is not explained by the Vice-Chancellor, and it is not entirely clear to me, how the involvement of the court at this stage is juridically justified. It could be because the police or other public authorities are subject to the judicial review jurisdiction of the Court and that it would be regarded as a breach of public law duties to disclose without an order of the court. Or it could be because disclosure of confidential information is prima facie a breach of a duty of confidence which the court would restrain and that a public authority should obtain an order before departing from that prima facie position.[89]Whatever the true analysis, it is more difficult to apply to the recipient of documents from a public authority, in the present case Mr Chapman who has received documents from the SFO, or to any person who is an onward recipient of such documents, Standard Life in the present case. If in a particular case the court would grant an injunction against disclosure (eg disclosure by Mr Chapman or Standard Life in the present case) then it can be said that there is a duty not to disclose; but if the court would refuse an injunction, there is no duty not to disclose and that is so whether or not there might be some other remedy, such as damages, if disclosure actually takes place. I doubt that the duty on the recipient (Mr Chapman or Standard Life in the present case) is properly to be described as a duty not to disclose without the consent of the court any more than in any ordinary case of confidential information.[90]This would, in any case, be mere semantics were it not for one relevant distinction. If the duty of confidence in respect of documents properly disclosed by the SFO is to be dealt with in the same way as the duty of confidence in any ordinary case relating to confidential information, the person to whom the duty is owed can seek injunctive relief: no question of abuse of the process of the court would arise even if the documents had already been used in civil proceedings. In contrast, if it is part of the duty not to disclose (or use) the documents other than under an order of the court, it is arguable that disclosure or use without an order is an abuse of process.[91]I would reject such an argument. The nature of the court’s involvement under this formulation of the duty is not at all similar to that in cases of an implied undertaking (breach of which engages the contempt jurisdiction and the power to strike out for abuse) and does not give rise to the sort of abuse of process which I have discussed earlier in this judgment. In my view, the qualification that the documents should not be disclosed without an order of the court is a qualification of the rights and duties as between the provider and user of the documents (in the present case, Topland and Standard Life respectively). An unqualified duty not to disclose documents might well be restrained by injunctive relief, but their use (in breach of duty) in civil proceedings would not be an abuse of process. A qualification on that duty which allows use of documents with the consent of the court would not, I consider, render unintentional use an abuse.[92]The Vice-Chancellor then went on to identify two relevant limitations on the duty of confidence. The first is that there can be no breach of the duty of confidence once the information or documents are in the public domain and any confidentiality has disappeared. The second is that the right to confidentiality is not an absolute one. Where the enforcement of the duty comes into conflict with other public interests, the court has to balance the relevant factors to see whether that duty is outweighed by the public interest. In this context, the relevant public interest in that case, as in the present case, is the “basic public interest in ensuring a fair trial on full evidence”(see at p 239F). These exceptions apply, in my view, as much in relation to documents disclosed by the SFO as to the documents with which the Vice-Chancellor was concerned.[93]In carrying out that balancing exercise, the Vice-Chancellor came down firmly in favour of protecting confidentiality in what I read as a powerful defence of the rights of the citizen against the state: see at p 240B to D ending just before the sentence “Apart from authority….”.. What he said in 1992 is as true today as it was then. After considering the authorities (which he recognised forced him to temper the broad formulation which he favoured) he said this:
“However there is nothing in the Alfred Crompton case inconsistent with a narrower formulation, viz. that where documents have been physically seized by the police in exercise of their powers under the Act, the public interest demands that the documents are used solely for the police purposes for which the powers of seizure were conferred and for no other purpose whatsoever. In my judgment, for the reasons I have given, that public interest should be inviolate and outweigh the public interest in ensuring that in any given civil case all relevant information should be available to the court. Such an approach will not render that evidence inevitably unavailable in civil litigation. If the information obtained by the police is used in the course of a criminal trial, it will enter the public domain and will cease to be confidential. It will thereupon become available for use in civil proceedings”
[94]He accordingly, granted injunctions restraining use of the documents not already in the public domain. He set aside the subpoena duces tecum on the police notwithstanding that the documents concerned had in fact been provided to the court pursuant to it. As a result, he ordered delivery up of the documents to the police, not to the plaintiffs, from whose lawful custody they had been delivered pursuant to the subpoena.[95]His decision was overruled in part by the Court of Appeal. The Court acknowledged that there were restrictions on the voluntary use to which the police could put the documents (although they did not speak with quite one voice on that) and that there was a duty of confidentiality owed by the police. However, the plaintiffs themselves could have been required by subpoena to produce the documents at the trial of the main action if they had still been in their possession or if they had been supplied with copies by the police. Dillon and Nolan LJJ held that the police were bound to produce the documents in court pursuant to the subpoena except documents to which the plaintiffs had a legitimate ground of challenge. As Dillon LJ put it at p 257A:
“I see no reason to raise a public interest immunity against the use of documents seized by the police in evidence in civil proceedings if there would be no similar immunity against the use in such proceedings of copies of such documents supplied by the police to the true owners under Code of Practice B. Any other view would have the result that the seizure of documents by the police would give the owner of the documents an uncovenanted benefit in the way of a public interest immunity as against his innocent antagonist in the civil proceedings ……….. In my judgment, the true view is that the police officer is, like anyone else, and as the Commissioner of Police of the Metropolis concedes, amenable to produce on subpoena any documents in his possession, subject to the true owner having the right to challenge the subpoena, or the production of the documents, on any of the grounds on which a subpoena can be challenged. This would of course include, as is conceded, the ground of legal professional privilege in favour of the true owner. But it would not include any such grounds of confidentiality as between the police and the true owner, or abuse of power, as have been suggested; it is not an abuse of power for a police officer to obey an order of a civil court of competent jurisdiction.”
[96]It will be noted that Dillon LJ therefore treated the documents which had been disclosed by the police to Mr Barker (the defendant’s solicitor) in the same way as the documents produced on the subpoena. Nolan LJ was unable to see why the owners of the documents should be able to stop the police from producing them to the court in obedience to a subpoena duces tecum when the owners themselves, if the documents were in their possession, would be bound to obey such a subpoena. And he regarded it as unrealistic to distinguish between the copies which had, possibly improperly, been taken by Mr Barker (the defendant’s solicitor) and the original documents lodged with the court pursuant to the subpoena.[97]Slade LJ took a different approach. He dealt first with the documents which had been disclosed to Mr Barker. Slade LJ agreed with the greater part of the Vice-Chancellor’s judgment but considered that he had gone wrong in regarding his discretion as fettered by the rigid restrictions which he did. He accordingly saw the matter as one where there was a duty of confidentiality. But this gave rise (see p 265E) to a balancing exercise:
“I of course accept that there is a public interest in ensuring a proper observance by the police of the obligation of confidentiality in respect of documents seized under relevant powers. It is the existence of this obligation which, in my judgment, alone gives rise to a cause of action at the suit of the person from whom the documents were seized in cases where the police use or propose to use them otherwise than for police purposes at a time when they are still properly retaining them. I cannot, however, see why that public interest should in all cases and in all circumstances outweigh the public interest in ensuring a full and fair trial on full evidence in cases where the police have seized documents under Part II of the Act of 1984 and wish to use them for the purpose of assisting the supposed victim of an alleged crime to obtain a fair trial of a claim for damages in a civil case on full evidence. Everything must depend on the circumstances of the particular case.”
[98]Then, in exercising his discretion in relation to the disclosed documents, he said this (and I make no apology for the rather long citation since it is instructive):
“More broadly, I am of the clear opinion that this is a case where justice and the proper balancing of the public interest clearly require the disclosure of the documents and information comprised in category 1 - with which at present I am dealing - for the purpose of the civil proceedings, rather than their concealment. As appears from Dillon L.J.'s judgment, if copies of such documents had been supplied by the police to the true owners under Code of Practice B made under section 66 of the Act of 1984, and a subpoena duces tecum had been addressed to those owners to produce them in the civil proceedings, there are no discernible grounds upon which they could have successfully resisted it. When this court comes to exercise its discretion in the present case, I can see no reason why, by reference to some supposed public interest immunity, it should permit the plaintiffs to enjoy a more favourable position than that which they would have enjoyed if copies of the documents had been supplied to them - or indeed if the original documents had never been seized at all. A striking example may be given of one possible consequence which could ensue if the documents are not now disclosed. The trial of the civil proceedings could begin in their absence. Representatives of the police might attend the trial for the purpose of hearing the evidence. They might hear evidence given which was adduced for the purpose of refuting Mr. Jaggard's case. By reference to the documents in their possession, they might know for a fact that such evidence was false. Yet on the basis of the plaintiffs' case as presented to us, they would be obliged to remain silent and to let the civil proceedings advance to a judgment which might be arrived at essentially on the basis of incorrect findings or assumptions of fact. I cannot, for my part, believe that a course which would involve this risk would best serve justice or the public interest. In relation to the category 1 documents, therefore, justice and the public interest in my judgment do not require that the judge who tries the civil proceedings should be obliged to try them with the benefit of only part of the relevant and admissible evidence; they demand the withholding, rather than the grant, of an injunction by this court in the exercise of its discretion.”
[99]He then went on to consider the documents lodged with the court pursuant to the subpoena which he regarded and dealt with as an a fortiori case.[100]In my judgment, if one is to apply the approach of Dillon and Nolan LJJ, there is a close analogy to be drawn between(a) the position in that case where the documents subject to the subpoena on the police could have been made subject to a subpoena on the plaintiffs if they still retained them and(b) the position in where the documents obtained by the SFO would be subject to disclosure in a subsequent civil action. And if one is to apply the approach of Slade LJ, a balancing exercise must be carried out which, in the present case, must take account of what would be the position in relation to the obtaining of documents within the SFO Pack quite apart from their disclosure by the SFO. I shall return to these aspects in a moment.[101]But before I do, I want to consider a discrete question which arises. Mr Beazley has submitted, as I have said, that the present proceedings are an abuse of process on the basis that use was made of the SFO Pack in formulating the Claim Form and the Particulars of Claim and that without use of the SFO Pack, it would not have been possible to formulate a claim. Had I accepted that submission, it would then be well arguable that it is not possible to escape the consequence of the abusive conduct by pointing out that it is now possible to formulate a claim by reference to material now in the public domain or which it is otherwise now proper to use, especially where limitation issues are involved: see in relation to that the decision of Rimer J in Miller v Scorey [1996] 1 WLR 1122. Mr Gatt has some powerful arguments to distinguish Miller v Scorey in order to conclude that, even if there were an abuse of process in the present case, striking out the proceedings would be disproportionate. Given my conclusions on abuse of process, I do not need to address those arguments in that context.[102]However, having rejected Mr Beazley’s submissions based on abuse of process, the proceedings are not to be struck out as an abuse of process. That is not to say that, had injunctive relief been sought and obtained as soon as the proceedings were issued to restrain use of the confidential material, a limited application to strike out on the grounds of abuse (relying for instance on Nomura International plc v Granada Group Ltd)would not have succeeded. But no such relief was obtained. Further material has come into the public domain, in particular the contents of the pleadings in the Lessee’s second action are known. There can be no objection, in my view, in Standard Life now relying on all of the material which is in the public domain to support its existing claim. If (ignoring limitation problems for this purpose) it were possible to formulate a claim on the basis of material on which Standard Life can now rely, I see no reason why it should be compelled to bring a new action rather than continue with the present action (amending it if necessary so as to eliminate reliance on any of the documents in the SFO Pack on which it is not entitled to rely). In my judgment, it makes no difference to that conclusion that a limitation period may have expired perhaps rendering a new action vulnerable to a limitation defence.[103]The same applies to documents and information which, although not in the public domain, are now held by or known by Standard Life from sources other than the SFO Pack or, although contained in the SFO Pack, are not in their nature confidential.[104]The material on which Standard Life is now entitled to rely therefore includes the following: i) All material now in the public domain; this will include the contents of the pleadings in the Lessee’s two actions. ii) Material not in the public domain but which Standard Life has obtained from sources (such as the Lessee) and in relation to which Topland and LSM can take no valid objection.[105]Further, Standard Life cannot be prevented by Topland or LSM from using documents in the SFO Pack which were not obtained by the SFO from either of them unless those documents contain information confidential to either of them. In particular, Standard Life cannot be (and probably never could have been) prevented from using its own documents even though it may have lost or forgotten them and been reminded of them only on receipt of the SFO Pack. Similarly, I do not consider that Standard Life can be prevented by Topland or LSM from using documents (for instance emails) which were created by and sent to Topland or LSM by the Lessee or copies of the Lessee’s own documents which were contained in the SFO Pack. Whether the Lessee could prevent such use is a different matter; it has not sought to do so and from what I know I consider it unlikely in the extreme that it would ever wish to do so.[106]For reasons which I will come to in due course, I consider that using only this material, Standard Life would be able to formulate a Claim Form and Particulars of Claim which would enable it to make the same claim, or broadly the same with some changes in the detailed pleading, as is made in the present action sufficient to preclude an application to strike out under CPR 3.4(2).[107]Picking up from where I left, at the end of paragraph 100 above, it inevitably follows, if I am right in saying in the preceding paragraph that Standard Life would be able to formulate a claim the same as or broadly similar to that made in the present action, that there should be no injunction preventing the use of any of the documents in the SFO Pack. Applying an approach analogous to that of Dillon and Nolan LLJ, all of those documents will have to be disclosed by Topland and LSM in this action (alternatively, if they do not have the documents or copies, they have no standing to seek injunctive relief in the first place). Alternatively, applying the approach of Slade LJ, the balance comes down clearly in favour of allowing Standard Life to use these documents. To reflect his words at p 266C, I see can see no reason why, by reference to some supposed public interest immunity, the court should permit Topland and LSM to enjoy a more favourable position than that which they would have enjoyed if the documents had never been obtained by the SFO at all. Whichever approach is adopted, the result is that no injunction should be granted preventing the use by Standard Life of any the documents in the SFO Pack.[108]Disclosure will, of course, be subject to the usual implied undertaking so that use of the documents disclosed other than for the purposes of this action will be prohibited save under a court order and unauthorised use will be a contempt. To that extent, the confidentiality and privacy of Topland and LSM is maintained. Standard Life could not go off to the newspapers with the material. There is, I think, no discernible reason why Topland and LSM should be entitled to refuse to disclose in the action any of the documents in the SFO Pack of which they have the original or copies.[109]The same result would, of course, flow if the material available to Standard Life (without reliance on the SFO Pack) when it issued the Claim Form was sufficient to found the claim. The claim would not be struck out in such a case (although amendment of the Particulars of Claim to remove reference to any confidential material might be required). Disclosure would have to be given, after which the pleading could be re-amended back to its original form. It seems hardly likely that the court would require this to be done when it is already known exactly what the contents of the yet-to-be-disclosed material actually is.[110]The position is less straightforward if, in order to formulate and maintain a valid claim against Topland and LSM, it was and still remains necessary to rely on documents contained in the SFO Pack which were obtained from Topland and LSM and in which Topland or LSM can assert confidentiality. It is true that the claim, nonetheless, remains a valid claim unless and until struck out. Accordingly, it might be said that, since the claim is not an abuse and is not to be struck out, Topland and LSM must give disclosure which will include disclosure of the SFO Pack or at least the documents contained in it which emanated from Topland and LSM. Applying the approach of Dillon and Nolan LJJ in the analogous context of the subpoena against the police, there is then no justification in granting an injunction to restrain use of the documents in the present action. But this might be thought to be something of a “bootstraps” argument. Another view is that use of the offending material should be prohibited by injunction, resulting in the pleadings having to be amended. Given the requirement for a Statement of Truth, and given that a claim cannot, on the hypothesis under consideration, be formulated without reliance on material which cannot be used, there should be nothing left.[111]I think that the true position, in this last case, is somewhere in between these two extremes. The issue, in my view, becomes one of balancing, in accordance with the approach of Slade LJ, the competing public interests of(i) confidentiality in documents disclosed under compulsion and(ii) the public interest in ensuring a fair trial on the basis of full evidence, an interest which is most obviously defeated if there can be no trial at all because the relevant documents are not made available.[112]I should add that the scenario discussed in the last two paragraphs is somewhat unreal. One of the claims against LSM does not involve any conspiracy at all and does not involve Topland. There is today clearly adequate material to justify a claim against LSM without the SFO Pack. Disclosure by LSM will inevitably produce the important documents on which Standard Life now relies in support of its case against Topland. There is no reason to prevent their use now.[113]Let me now turn to look at the documents in the SFO Pack the use of which is in dispute. I shall do so, by reference to the helpful table which has been prepared as the result of efforts by both sides with some input from the SFO itself. i) Letter dated 5 April 2002 Mr Smith (of LSM) to Mr Chapman. Having been sent to Standard Life, it is really Standard Life’s own document. Certainly, its use cannot be prevented on the basis that it is confidential. ii) Email 15 July 2002 Mr Chapman to Mr Smith. Similarly, this cannot be regarded as confidential and may be used by Standard Life. iii) Email 15 July 2002 Mr Smith to Mr Chapman. The position is the same as in ii). iv) Email 7 November 2002 from a James Siefert (of LSM) to Mr Bush (at Topland). This is alluded to in the first of the Lessee’s actions. Although of Topland’s documents and subject to confidentiality if the only source was the SFO, the contents of this document can nonetheless be relied on by Standard Life by way of what can be derived from the Lessee’s first action. v) Email 20 November 2002 (9.36 am) from Mr Shaw (at LSM) to Mr Bush. The position is the same as in iv). vi) Email dated 20 November 2002 (10.07 am) Mr Bush to Mr Shaw. The position is the same as in iv). vii) Email dated 20 November 2002 (10.34 am) from Mr Shaw to Mr Bush. The position is the same as in iv). viii) Email dated 20 November 2002 (11.41 am) from Mr Bush to Mr Shaw. This document is not referred to in the Lessee’s proceedings.Although this email is quoted, in part, in Standard Life’s Particulars of Claim, it is not, in contrast with the next email, an essential part of Standard Life’s claim. The absence of this document or information in it would not make the difference between Standard Life being able and being unable to formulate a valid claim. ix) Email dated 20 November 2002 (11.57 am) from Mr Shaw to Mr Bush, (see paragraph 13 iii) above). The position is the same as in iv). This is an important email for Standard Life’s case. x) Email dated 20 November 2002 (12.05 pm) from Mr Bush to Mr Shaw. The position is the same as in viii). xi) Email dated 20 November 2002 (12.19 pm) from Mr Bush to Mr Chapman. The position is the same as in i). xii) Email dated 20 November 2002 (12.24 pm) from Mr Shaw to Mr Bush. The position is the same as in iv). xiii) Email dated 2 December 2002 from Mr Shaw to Mr Bush. This is quoted in part in the Lessee’s proceedings. Although Standard Life’s Particulars of Claim includes some other words from the email, the substance relied on is found in the parts quoted in the Lessee’s proceedings and knowledge of the words in those proceedings was enough for Standard Life to be able to plead the point which it did. xiv) Note of meeting 6 December 2002 between representatives of the Lessee and LSM. It is apparent from the reference number of the document that the SFO did not obtain this document from Topland. It is not Topland’s document nor are its contents Topland’s confidential information. Moreover, the matters discussed at the meeting are relevantly disclosed in the Lessee’s second action: see paragraph 37 of the Particulars of Claim in that action. Topland cannot restrain use of it by Standard Life. xv) Letter dated 20 December 2002 from Mr Smith (of LSM) to Standard Life’s property agents. Standard Life has now produced its own copy of this letter so that there can be no objection to its use even though another copy was in the SFO Pack (although not obtained from Topland). xvi) Email dated 27 February 2003 from Mr Bush to Mr Chapman. The position is as in ii). xvii) Email dated 28 February 2003 from Mr Chapman to Mr Bush. It is not entirely clear whether this document was obtained by the SFO from Topland. But even if it was, the position is as in ii). xviii) Email dated 8 May 2003 from Mr Bush to Mr Chapman. The position is as in ii). Further, the document is alluded to and partially quoted in the Lessee’s first action. xix) Email dated 8 May 2003 from Mr Chapman to Mr Bush. The position is as in xviii). xx) Emails dated 22 May, 23 May and 27 May 2003, passing between Mr Chapman and Mr Bush. The position is as in ii). xxi) Letter dated 27 June 2003 from an employee of the Lessee to an individual at LSM. This document was not obtained by the SFO from Topland. Standard Life now has a copy obtained from the legal representative of the Lessee. It is referred to and partially quoted in the Lessee’s first action. Standard Life is clearly entitled now to rely on it. xxii) Letter dated 30 June 2003 from Mr Bush to Mr Smith (of LSM) (with annotations). This document was not obtained by the SFO from Topland. It is referred to in the Lessee’s first action and partially quoted (the annotations being quoted in full). Standard Life is now entitled to use this document. xxiii) Letter dated 7 August 2003 from Mr Bush to Mr Smith. The copy was not obtained by the SFO from Topland but rather from LSM. This letter is relied on by Standard Life as one of several pieces of material to draw certain inferences namely(i) that LSM informed Topland of the Lessee’s intentions and instructions to commence certain negotiations with Standard Life for regearing of the Lease and(ii) that Topland and LSM knew that if Standard Life became aware of the Lessee’s wish to commit on a long term basis to the Property it would either not wish to continue with the sale of the Property to Topland or would increase the price. The letter is, however, only one of the factors relevant to the drawing of the inference. Even if reference to this letter were deleted from the Particulars of Claim, Standard Life would still have a case which could not be struck out as an abuse or as disclosing no cause of action. Accordingly, this letter would be revealed on disclosure in any event. xxiv) Letter dated 14 August 2003 from Mr Smith to the Lessee. It is not clear whether the copy was obtained by the SFO from Topland. It is, however, referred to and partially quoted in the Lessee’s first action. There is enough in the reference and quote to enable Standard Life now to rely on it. xxv) Letter dated 12 September 2003 from Mr Smith to the Lessee’s solicitors. This was obtained by the SFO from LSM, not from Topland and is accordingly not one of Topland’s confidential documents. Even if Topland were able to assert some confidentiality of its own in the document, the position would be the same as in xxiii). The action would be well-founded without reliance needing to be placed on this letter. The letter would then have to be disclosed in due course.[114]In my judgment, it follows from this review of the documents in the SFO Pack, Topland is not now entitled to assert confidentiality in any of them so as to prevent Standard Life from using their contents in support of its claims against Topland and LSM.[115]I have not, in this analysis, taken account of the Particulars of Claim in the Lessee’s second action. This action is concerned primarily with the rent review on the Property and the subsequent regearing in relation to which it is alleged that the Lessee has been the victim of : i) deceit and/or fraud by bribery and/or dishonest assistance and/or breach of confidence by Topland, Mr Bush and Mr Zakay (of Topland); ii) an unlawful conspiracy by those parties, LSM and Mr Smith (of LSM) to injure the Lessee; iii) deceit and/or breach of fiduciary duties and/or breach of common law duties and/or breach of contractual duties by LSM and Mr Smith.[116]I do not propose to review the long Particulars of Claim which are for the main part not especially relevant to the present strike-out application. But I note the following: i) Paragraph 29 refers to an offer by Topland to purchase the Property of which the Lessee was unaware (and thus had not been informed of it by LSM, its own agent). ii) Paragraph 30 refers to a document emanating from LSM in November 2002 called “Accommodation Options Study” and which, it is pleaded, recommended that LSM should continue with the active negotiation and arbitration process, thus implying that LSM was already actively negotiating with Standard Life (which, I add, it was not) recommending a revised lease to reduce the impact of the prospective rent increases. iii) Paragraph 37 gives some detail of the meeting between representatives of the Lessee and of LSM on 6 December 2002 referred to above. iv) The allegations of conspiracy start at paragraph 93. A conspiracy involving Topland and LSM (among others) is alleged under which the conspirators would cause a number of things to happen including: a) causing Standard Life to believe that the Lessee did not intend to remain in the Property in the medium term; b) causing Standard Life to sell the Property to Topland to enable Topland to benefit from the higher than market rent payable under the Lease and to execute a new lease on terms even more favourable to Topland and unfavourable to the Lessee c) causing the Lessee to believe that Standard Life would or would be likely to redevelop the Property at the end of the Lease rather than agreeing to extend the Lease.[117]There is then set out, in paragraphs 100ff, the evidence in support of the pleaded conspiracy. At paragraph 107, the 3 emails of 20 November 2002 are expressly referred to, including reference to the possibility that if Standard Life became aware even of the possibility that the Lessee was interested in extending or renewing the Lease, they obviously might not be interested in selling but would take the “massive profit for themselves”.[118]At paragraph 109, reference is made to an email later the same day from Mr Bush to Mr Chapman stating, untruthfully, that he had “come across the details of your ownership” of the Property making an offer to purchase. And in paragraph 11 it is then stated that on 6 January 2003, Mr Shaw and/or Mr Smith emailed Mr Bush to inform him that a rent had been agreed and that it was “probably a good time” to speak to Standard Life about purchasing the Property.[119]At paragraphs 114 and 115 it is pleaded that on 24 February 2003, Mr Shaw and/or Mr Smith emailed Mr Bush in the course of which it was inquired whether there was any progress on the purchase of the Property. Three days later, Mr Bush emailed Mr Chapman to ask if he was in a position to discuss such a sale but he was informed that the possibility of sale was remote.[120]At paragraph 118, it is pleaded that Mr Shaw emailed Mr Bush to inform him that Mr Smith was meeting the Lessee’s “decision maker” on 13 May and would advise him that the Lessee may be able to negotiate a Lease on better terms if it acted quickly. Later that day, Standard Life contacted Mr Bush to ascertain whether Topland remained interested in purchasing. Mr Bush informed Standard Life that the Property was over-rented showing that Standard Life “did a good rent review” and that he hoped to revert the following week in respect of the sale. This, it is pleaded, shows that Topland and Mr Bush were aware that the rent for the Property was significantly higher than the market rent.[121]Section F of the pleading beginning at paragraph 129 relates to the conspirators’ acts. It is alleged that, pursuant to their agreement or common understanding, they carried out the following injurious acts: i) Breaches of fiduciary duty and/or contractual and/or common law duties by LSM and/or Mr Smith; ii) Deceit etc by LSM and/or Mr Smith and/or Topland; iii) Dishonest assistance by Topland.[122]The breaches of duty are set at out length in section G. And in section H, the claims in deceit are made. The representations relied on are alleged to have been “pursuant to and in furtherance of the Conspiracy”. Those representations are alleged to have been made with the intention of inducing the Lessee to settle the rent review above market rent and to surrender the Lease and execute the new lease at a rent well above the market rent. The pleading, of course, is concerned with the position of the Lessee and it is not part of the Lessee’s case that Standard Life might have suffered loss and damage. However, if the Lessee were to establish its case on conspiracy it inevitably follows that Standard Life has been deprived, as the result of the conspiracy, of the opportunity of negotiating with the Lessee for the regearing of the Lease. I appreciate Mr Beazley’s submission that the actual sale by Standard Life came about following the making of contact by Standard Life with Topland rather than the other way round. But that does not, even if it were not challenged, which it is, present an insuperable obstacle to Standard Life’s case. In one of its formulations, that case is that Standard Life has been deprived of the opportunity of dealing with the Lessee in respect of regearing as the result of a unlawful conspiracy in which Topland was complicit.[123]It seems to me that there is enough in the Lessee’s second action, even without use of the documents in the SFO Pack which were not independently available to Standard Life prior to the issue of its own proceedings, to enable it to plead its case. In other words, even if those documents are removed from the frame, Standard Life would be able to plead a case, based on documents and information which is now independently available and based on the information contained in the Particulars of Claim in the Lessee’s second action, which would not be vulnerable to a strike-out application.[124]If that is wrong, then a balancing exercise between the competing interests of a fair trial of Standard Life’s claim and the confidentiality of Topland’s documents would have to be carried out. It is not appropriate for me to attempt to carry out that exercise. It can only be done with knowledge of what information and documents in respect of which Topland is entitled to assert confidentiality. Without knowing why, and the extent to which, I am wrong (if I am wrong) I cannot attach appropriate weight to the different factors in the balancing exercise. In the context of that balancing exercise, some, if not all, of the factors on which Mr Gatt relied in saying that strike-out would not be a proportionate remedy even if an abuse of process were established would be relevant.[125]Finally, I should note that a considerable amount of evidence was produced about what the SFO is said to have authorised by way of disclosure and use of the SFO Pack by Mr Chapman and Standard Life and a considerable amount of time at the hearing was spent in considering it. In my view, this is of no relevance in reaching the result in the present case. Whether the SFO thought it had power to disclose matters to Mr Chapman for onward transmission to Standard Life for Standard Life to use in a civil action is neither here nor there. The SFO was entitled to release the documents to Mr Chapman only for the purposes of its criminal investigation. Mr Chapman (and Standard Life in turn) received the documents subject to the duty of confidentiality which I have described. That was a duty of confidentiality owed to Topland and LSM at least in relation to documents obtained from them by the SFO. I reject Mr Gatt’s submission that this was a duty owed to the SFO and only to the SFO.[126]Further, this was a duty which the SFO was not in any way able to modify or release. It may be – I do not need to decide – that Mr Chapman and Standard Life also owed a duty of confidentiality to the SFO, although it does not appear that the SFO is interested in enforcing it even if there is one. What is perfectly clear is that neither Topland and LSM nor their solicitors have themselves in any way acted so as to deprive Topland and LSM from relying and enforcing such rights as they would otherwise have.[127]In my judgment, it follows from this review of the documents in the SFO Pack that Topland is not now entitled to assert confidentiality in any of them so as to prevent Standard Life from using their contents in support of its claims against Topland and LSM.

Conclusions

[128]Topland’s application to strike-out the proceedings as an abuse of process is dismissed. Topland’s application for an injunction restraining the use of confidential information is dismissed. Topland’s claim for summary judgment on its counterclaim is dismissed.[129]Standard Life is not entitled to an order that it be permitted to use the documents in the SFO Pack. Topland cannot prevent Standard Life from using them, for reasons already given; on disclosure, Topland will, in any event, have to give disclosure of those documents in respect of which it is capable of so doing (but obviously not of documents which are not and never have been in its possession or available to it). If there are documents in the SFO Pack in respect of which some third party is able to, but has not, asserted confidence, it is not appropriate for me to make an order expressly permitting their use in the absence of any notice to the third party concerned. But, since there is no order to be made against Standard Life restraining their use, and since their use is not an abuse of the process of the court, Standard Life is not precluded from relying on them.

Cited in 1 later judgment