LLC Eurochem North-West-2 & Anor v Société Générale S.A. & Ors [2025] EWHC 1614 (Comm)

[2025] EWHC 1614 (Comm)Case No CL-2022-000456
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, WC4A 1NLDate 26 June 2025
Before
MR JUSTICE BRIGHT
Between
(1) LLC EUROCHEM NORTH-WEST-2Claimants(2) EUROCHEM GROUP AGClaimant(1) SOCIÉTÉ GÉNÉRALE S.A.Defendants(2) SOCIÉTÉ GÉNÉRALE S.A.Third Party(3) SOCIÉTÉ GÉNÉRALE – MILANO BRANCHDefendant(4) ING BANK N.V.Defendant(5) ING BANK N.V. – MILAN BRANCHDefendantTECNIMONT S.P.A.
Mr Tim Chelmick, Ms Marie-Claire O’Kane, Mr Emile Simpson, Ms Helena Spector (instructed by Vinson & Elkins RLLP) for ClaimantsMr Richard Handyside KC, Mr James Duffy KC, Ms Natasha Bennett (instructed by Herbert Smith Freehills LLP) for First, Second and Third DefendantsMr Neil Kitchener KC, Mr James Weale, Mr Robert Harris (instructed by Clifford Chance LLP) for Fourth and Fifth DefendantsMr Alan Maclean KC, Mr Tom Leary (instructed by McDermott Will & Emery UK LLP) for Third PartyHearing Hearing dates: 25 June 2025
Approved JudgmentThis judgment was handed down remotely at 3:00pm on 26/06/25 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]This judgment is concerned with issues as to whether certain documents disclosed by the Claimants in the course of the proceedings should be treated as confidential and should be subject to the terms of a confidentiality club, or whether they should now be released from the confidentiality club.[2]The proceedings relate to six on-demand bonds (“the Bonds”), each governed by English law, issued by the First to Third Defendants (“SocGen”) and Fourth to Fifth Defendants (“ING”) (together “the Banks”), in favour of the First Claimant (“Eurochem NW2”) as beneficiary. The Second Claimant (“Eurochem AG”) is a group holding company and claims to be the assignee of the proceeds. The Third Party (“Tecnimont”) procured the Bonds and (I understand) may well be liable under counter-guarantees if the Banks are obliged to pay.[3]The total value of the Bonds was approximately €275 million. They were issued on various dates in 2020 and 2021 in connection with the construction for Eurochem NW2 of a significant fertiliser plant in Kingisepp, Russia.[4]On 24 February 2022, Russia invaded Ukraine. On 9 March 2022, the EU imposed sanctions on the founder of the Eurochem Group, Mr Andrey Melnichenko. Eurochem NW2 made demands under the Bonds on various dates in August 2022. The Banks have declined to pay, on the basis that to do would be illegal because of the EU sanctions.

The Proceedings

[5]The proceedings were commenced by Eurochem NW2 in August 2022. Eurochem AG was added as Second Claimant in January 2025.[6]It is not necessary to describe the issues in any detail, but they include issues about the views of the relevant national authorities that are responsible for dealing with EU sanctions in a number of countries, including France, the Netherlands and Italy. They also involve exchanges between the parties and the regulators, as well as other events in the EU and in Russia.[7]It took a long time for the Claimants to provide disclosure. When they did, a large number of documents were significantly redacted, on the basis that some parts of them were irrelevant and confidential; and some documents initially were not produced at all, on the same basis. Such documents included exchanges between Eurochem NW2 and the Italian national authority, the Comitato di Sicurezza Finanziera (“CSF”). These documents responded to issue for disclosure no. 6, which was specifically concerned with exchanges with the CSF; I refer to them for convenience as “the IFD6 documents”.[8]At a hearing on 5 December 2024, Dias J concluded that the IFD6 documents were relevant. However, the Claimants maintained their position on confidentiality. In the course of the hearing, Dias J asked what the basis was of the assertion of confidentiality. She was told that this was twofold: i) Eurochem NW2 and its associated companies (notably Eurochem AG) must be allowed to have interaction with national regulators/authorities such as the CSF was Bonds, and such interaction was “highly confidential while it is going on.” ii) There were EU law restrictions about the deployment of the documents, which were currently being bottomed out.[9]At that hearing, counsel for ING (who effectively led the argument on this point on behalf of the Defendants) objected that these were nebulous objections being set out for the first time.[10]However, Dias J needed to resolve as many issues on disclosure as she practically could; and it was not possible for her to resolve the contested issues as to the confidentiality of the documents in question. Her pragmatic solution was to order that the IFD6 documents be disclosed, but “such disclosure to be provided by way of confidentiality club, the terms of which are to be agreed between the parties with liberty to apply in the event that agreement cannot be reached…”[11]It transpired that agreement could not be reached as to the terms. They were finally resolved at a further hearing before Dias J, on 18 March 2025. The order recording the relevant terms included the following recital:
“AND UPON the First to Fifth Defendants and Third Party being content for those documents to be disclosed by way of confidentiality club as an interim measure pending disclosure and review of those documents…”
[12]Although the confidentiality club was initially established solely relation to the IFD6 documents, a number of further documents and categories of documents have been added to it subsequently, pursuant to further orders which have not, however, altered the terms of those two orders made by Dias J. Some documents appear to have been added to the confidentiality club by the Claimants spontaneously.[13]Importantly, none of these documents was added to the confidentiality club because of a ruling, either way, that they were or were not confidential. They were added on an interim basis, it being left open to any party to put confidentiality in issue at a later stage, if so desired. This reflected the practice endorsed by the Court of Appeal in Interdigital v OnePlus [2023] EWCA Civ 166 at [28]:
“The authorities make clear that a staged approach is appropriate… . Imposing a wider form of order at an early stage is plainly sensible… it is more straightforward to relax confidentiality restrictions over the course of proceedings…”

The legal principles

[14]It was common ground that the legal principles applicable to confidentiality were as set out by Cockerill J in Cavallari v Mercedes-Benz Group AG [2024] EWHC 190 (KB), at [22]-[50]. In summary: i) “The starting point as a matter of law is the principle of open justice”, which is “vital”: [22]-[23]. ii) A confidentiality order should be “the exception rather than the rule” and must be “justified” and go “no further than is necessary”: [25]-[26]. iii) “The burden lies on those seeking to displace the application of the open justice principle to produce clear and cogent evidence to explain why that departure is justified” [27]. iv) “… no claim of confidentiality can be maintained in respect of information which can be readily obtained by inspecting an article which is publicly accessible…”: [39]-[40]. v) The material in question must comprise “information the release of which the owner believes would be injurious to him or of advantage to his rivals or others”, and this belief must be reasonable: [36], citing Thomas Marshall Ltd v Guinle [1979] Ch. 227, per Sir Robert Megarry VC at p. 248. vi) However, “material which is commercially sensitive to the extent that it is confidential may cease to be confidential because the value of the information is lost by passage of time and progress”: [41].

Tecnimont’s challenge to confidentiality; the Claimants’ response

[15]The application before me was issued by Tecnimont, but was supported by SocGen and ING. Tecnimont challenged the confidentiality of all the IFD6 documents, as well as certain other specified documents. Ultimately, the application related to a total of 55 documents, set out in a schedule to the application.[16]Tecnimont also sought an order in relation to the evidence given by one of the Claimants’ witnesses. I deal with this separately, below.[17]Upon receipt of the application and of Tecnimont’ skeleton argument, the Claimants abandoned any claim to confidentiality in respect of most of the 55 documents – including the IFD6 documents which had initiated the confidentiality club.[18]The documents whose status remains contentious can be dealt with in separate categories, only two of which are significant.

CJEU documents

[19]The documents at lines 9 to 13 to Tecnimont’s schedule related to proceedings commenced by Mr and Mrs Melnichenko before the Court of Justice of the European Union (“the CJEU documents”).[20]Confidentiality was first asserted by the Claimants in relation to the CJEU documents at a hearing before Jacobs J on 23 May 2025. In relation to these documents, but not in relation to any other documents in Tecnimont’s schedule, the Claimants maintained one of the arguments originally advanced in relation to the IFD6 documents, at the hearing before Dias J: that there were EU law restrictions.[21]I have noted that, before Dias J and in the context of the IFD6 documents, this argument was characterised by ING as “nebulous”. By the time of the hearing before Jacobs J, that could no longer be said. The Claimant’s position as to EU law was explained in a witness statement concerning advice as to EU law, provided by a law firm in Brussels. The Claimants’ EU law evidence was that documents submitted to the Court of Justice, such as pleadings, cannot be disclosed or used without the consent of the party that produced them.[22]Jacobs J expressed some doubt about this but, as I have already noted, did not decide the point. This left it open to any party to challenge the Claimant’s assertion of confidentiality. I would expect any party wishing to do this to have adduced its own evidence as to EU law, to counter the Claimants’ evidence (rather than merely relying on submissions, as happened did before Jacobs J).[23]In the event, Tecnimont did not adduce any evidence on the point, either before Jacobs J or before me. Nor, indeed, did they repeat the submissions made on the EU law to Jacobs J. The Claimants’ evidence is, accordingly, uncontradicted by any opposing evidence from an expert or practitioner in what is, now, a foreign system of law. In these circumstances I accept the Claimants’ case that disclosure or use of the CJEU documents would be contrary to EU law. They are, accordingly, impressed by confidentiality, and must remain subject to the confidentiality club.

Documents put to Mr Fokin in cross-examination

[24]The other significant category comprised documents put to one of the Claimants’ witnesses, Mr Andrei Fokin, in the course of his cross-examination. These documents were at lines 27 to 32 of Tecnimont’s schedule. Central to all of them was a single document at line 29 – a spreadsheet of cash balances, created in March 2022.[25]The financial information in this spreadsheet had been the subject of an appreciable number of questions put to Mr Fokin. It related to the cash balances in various bank accounts, associated with a number of different entities, which were arguably relevant to some of matters covered by Mr Fokin in his witness statement as to events in early 2022.[26]I cannot see that information regarding the state of these cash balances in March 2022 can still be considered confidential in June 2025.[27]One part of the spreadsheet sets out the account numbers for all the relevant bank accounts. These details, by contrast, remain sensitive and confidential even now – at least to the relevant entities.[28]The various account numbers should be redacted. Once redacted in this limited manner, the spreadsheet is not confidential and should not be subject to the confidentiality club.[29]In relation to the other documents in this category, the Claimants’ case as to their confidentiality was entirely parasitic on the confidentiality of the spreadsheet. None of the other documents in this category requires redaction. None of them is confidential.

Clifford Chance letter to Vinson & Elkins

[30]Line 3 of a section of the schedule headed “Clifford Chance requests” concerned a letter from Clifford Chance LLP (ING’s solicitors) to Vinson & Elkins RLLP (the Claimants’ solicitors), dated 22 June 2025. It was common ground that the status of this document would turn on my decision as to the documents put to Mr Fokin (to which the letter referred). It follows that this letter is not confidential.

SocGen trial written opening

[31]The final relevant document was SocGen’s trial written opening. It was common ground that the status of this document would turn on my decision as to the CJEU documents (to which it referred). It follows that this document is confidential (save in so far as the relevant references are redacted).

Transcript of Mr Fokin’s evidence

[32]Mr Fokin is resident in Cyprus. He made a witness statement, but it later became apparent that he was reluctant to give oral evidence. ING sought and obtained a letter of request, which was sent to the authorities in Cyprus.[33]This ultimately led to Mr Fokin giving evidence remotely, from Cyprus, in circumstances where it had been agreed that his evidence would be given in private, with no members of the public present; albeit he had no objection to his evidence then being relied on and referred to in the proceedings, or in my judgment. This agreement was negotiated on Mr Fokin’s behalf by his Cypriot lawyers. It was agreed, not only by ING’s Cypriot lawyers, but also (as I understood it) by all the other parties.[34]It having been agreed by everyone that Mr Fokin should give his evidence in private, I directed, just before he was called, that the hearing was now taking place in private. I did so because the parties asked me to. I understood this to be the joint position of all the parties, including Tecnimont. The hearing then proceeded in private for the duration of Mr Fokin’s evidence.[35]An inevitable consequence of the fact that Mr Fokin’s evidence was given in private was that the transcript of his evidence could not be made public: CPR r 39.9(3)-(4), providing for this result “unless the court so orders.”[36]Tecnimont argued that I should make such an order, because of the unusual circumstances in which Mr Fokin’s evidence came to be given in private. In my clear view, however, the fact that Mr Fokin ultimately gave evidence after terms stipulating for a private hearing had been negotiated by his lawyers, and were ultimately agreed by all the parties, points the other way.[37]It would set a potentially harmful precedent if, absent a compelling reason, I were now to allow Tecnimont to overturn the parties’ universal agreement. It would mean that, in the future, no witness would feel confident that he can rely on the English court to hold parties to such an agreement; so no promise of privacy can be given any weight. This could deter witnesses from giving evidence at all.[38]If any party had objected before the fact to Mr Fokin’s evidence being given in private, matters might no doubt have proceeded differently. In particular, if Tecnimont had indicated at that point that it would wish the transcript of his evidence to be made public, notwithstanding CPR 39.3(3)-(4), this point could have been properly explored then. It would have become apparent whether Mr Fokin would have been reluctant to give evidence in those circumstances, whether some accommodation could be found that would enable him to participate voluntarily or whether other measures might be necessary.[39]As it is, however, Tecnimont made its bed and must lie on it.[40]I can imagine circumstances where the interests of justice might make it appropriate for the court to make an order that the transcript of a witness’s evidence be made public, despite prior agreement that the evidence be heard in private. However, Tecnimont has not really advanced any reason why to do so is appropriate in this case, beyond the fact that it may wish to rely on Mr Fokin’s evidence in related arbitration proceedings. I know next to nothing about those arbitration proceedings, not least whether any of Mr Fokin’s evidence is relevant to any of the issues, or whether he will or may be a witness (or, if so, on what basis).[41]Accordingly, the application in respect of the transcript of Mr Fokin’s evidence is refused.

Cited in 1 later judgment