ACL Netherlands, Hewlett-Packard The Hague and others v Michael Lynch & Sushovan Hussain  EWHC 249 (Ch)
In a judgment given on 12 February 2019, Mr Justice Hildyard has refused an application by HP group companies for permission to hand over almost the entirety of the Defendants’ disclosed documents and witness statements to the FBI in advance of the trial in the Autonomy litigation.
The material had been sought by the US authorities via a Grand Jury subpoena, and encompassed tens of thousands of documents. The applicants suggested that they might be sanctioned by the US courts for non-compliance with the subpoena. Hildyard J. held that, notwithstanding the subpoena, the applicants had to satisfy the Court that there were “cogent and persuasive” reasons to lift the restrictions on collateral use contained in CPR 31.22 and 32.12. He found that they had not discharged this burden: they had not clearly demonstrated that they, as opposed to their US parent company, were under any compulsion to hand over the documents; nor had a sufficient need for the documents been shown so as to outweigh the public policy and interests protected by the collateral use rules. In addition, the release of the documents and statements prior to trial gave rise to a risk of prejudice and injustice to the Defendants in both the English proceedings and any US criminal proceedings.
The judgment can be found here.
Andrew McIntyre appeared for the Second Defendant, Mr Hussain.