Litigating without disclosure

28/04/20

In a long-running dispute between the liquidators of Saad Investments Company Limited and Samba Financial Group (“Samba”), Mr Justice Fancourt has handed down judgment on a series of applications arising out of the refusal of Samba’s regulator, the Saudi Arabian Monetary Authority, to give approval for Samba (a Saudi Arabian bank) to give disclosure in the proceedings.

Applying the principles recently summarised by the Court of Appeal in Bank Mellat v HM Treasury [2019] EWCA Civ 449, the Judge refused to vary the English court’s order for standard disclosure notwithstanding his findings as to the existence of a risk to Samba of prosecution in Saudi Arabia were it to comply.  Amongst other considerations, the Judge held that Samba’s documents were likely to be of the highest importance to a fair trial of the claim, and that this outweighed, in the circumstances of the case, any risk of prosecution.

Although the result of this decision was that Samba was in continuing breach of a number of orders of the English court, the Judge, after analysing the case law on strike-out and debarring orders, declined to strike out Samba’s defence in its entirety.  Instead, the Judge distinguished between those issues in the case that could, and those that could not, fairly be tried in the absence of Samba’s disclosure, and held that Samba should be permitted to defend issues falling into the former category.   Accordingly, a trial of the issues that the Judge has held can fairly be tried without disclosure has been listed to proceed in October.

Amongst other matters, the judgment also contains a discussion of the rarely considered question of the scope and limits of the Court’s inherent jurisdiction to issue letters of request to foreign authorities in support of English proceedings (at paras [52] – [69]).

The judgment is here.