Civil fraud claims are often complicated by the existence of parallel criminal investigations and prosecutions, whether here or abroad. In such circumstances, a litigant may contend that it would infringe a foreign law for them to disclose certain documents in the English civil litigation. Further, and more generally, many foreign countries have stringent confidentiality regimes which may restrict the disclosure of certain types of information or document in English litigation. In such situations, a litigant may apply to the English court for an order relieving it from its disclosure obligations.
This situation has arisen recently in three cases in the Business and Property Courts: (1) LLC Eurochem North-West-2 v Société Générale S.A. [2025] 6 WLUK 298 (Bright J); (2) Persons Identified in Schedule 1 v Standard Chartered PLC [2025] EWHC 2136 (Ch) (Michael Green J); and (3) Aabar Holdings v Glencore Plc [2025] EWHC 2243 (KB) (Bryan J).
Richard Mott and Andrew Lodder were involved in the most recent judgment to consider this question in the multi-billion dollar Glencore litigation. Glencore Plc and Mr Glasenberg applied to be relieved from the obligation to produce a limited number of documents created in the course of a Dutch criminal investigation on the basis that doing so would infringe various provisions of Dutch law. Mr Justice Bryan considered a significant amount of expert evidence on Dutch law, and applied the three-stage test set out in Bank Mellat v HM Treasury [2019] EWCA Civ 449, i.e. (1) whether compliance with an English disclosure order would (or might) entail a breach of foreign criminal law; (2) if so, whether there was a real or actual risk of prosecution in the foreign state, and (3) if so, whether, on balance, the risk of prosecution outweighs the importance of the documents to the fair disposal of the English proceedings.
Bryan J ultimately preferred the Claimants’ Dutch law evidence and dismissed the Defendants’ applications to withhold the documents at all three stages, finding that production of the documents would not infringe Dutch law, and even if it did that there was no real risk of prosecution and the balance lay in favour of production. At the consequential hearing last week, the Judge ordered the documents be disclosed into a restrictive confidentiality ring.
Of interest to practitioners in future cases, during the hearing of the Defendants’ applications Bryan J invited the parties to produce an agreed draft order, setting out those matters which they considered would show that Glencore and Mr Glasenberg were acting under compulsion in terms of an Order of the English Court if inspection was ordered, together with a proposed confidentiality club, in each case designed to reduce the risk that Glencore and Mr Glasenberg would be prosecuted. The Judge also asked that recitals be included to the effect that the Court has had regard to the possible consequences of breach of an English Court Order (the possibility of sanction in the UK) and this being a matter that might be borne in mind by the Dutch authorities in considering whether to prosecute. The order ultimately made by the Court contained the recitals and confidentiality restrictions agreed by the parties.
Richard Mott (instructed by Stewarts LLP) acted for all the Claimant groups on this issue.
Andrew Lodder acted for Mr Glasenberg (instructed by Steptoe International (UK) LLP).
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