The CPR Standard Disclosure test is a strict one says the Court of Appeal

March 19, 2012

Disclosure in UK civil proceedings, with or without an “e” at the front of “disclosure”, is not a game for amateurs, raising serious points about the strict interpretation of a deceptively simple-looking rule as well as practical considerations – and that is before you get to the technology. If UK lawyers can learn something from Shah v HSBC Private Bank, US litigators will see one reason why UK disclosure is so much narrower in scope than the bloated excesses of US discovery.

I am obliged to Ashurst for the case summary which tipped me off to the judgment covered here. The case is Shah & Anor v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154 (13 October 2011). The claim itself concerns a delay in banking transactions which occurred because the bank suspected money-laundering and felt obliged to make authorised disclosures under the Proceeds of Crime Act 2002.

The application which came before the Court of Appeal concerned disclosure under the Civil Procedure Rules. Two questions arose: did the bank’s standard disclosure obligations require it to reveal the names of the bank employees who were involved? If they did, was it entitled to preserve that anonymity by redacting those names on the ground of public interest immunity?

The court (the main judgment is from Lord Justice Lewison) found for the bank on a strict interpretation of Rule 31.6, the definition of standard disclosure; the PII point effectively dropped away.

The paragraphs numbered down to 18 are a recital of the underlying facts. The claimants wanted to know the names of the individual employees involved in complying with the POCA requirements and with the bank’s internal procedures. The question arose as to whether this information was “relevant” although, as we shall see, this is in fact the wrong question. Read the rest of this entry »


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