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UK litigants unable to plead the Fifth Amendment despite pressure from the Feds

UK Court orders disclosure of a document subject to US Department of Justice confidentiality.

The disclosure of confidential information is very topical at the moment in light of the exposure of stolen banking information from the Swiss commercial arm of HSBC. Here the High Court have ordered that a Defendant cannot rely upon its obligations to the US Department of Justice in resisting the inspection of documents in court proceedings despite the risk that it might have faced prosecution in the US courts.

This is a stark reminder that the ongoing duty of parties to ensure that all relevant material and documents are disclosed during proceedings, can overcome what parties may consider to be the protection afforded by agreements or obligations even when they are imposed by other jurisdictions. The courts will consider the relevance of any such sensitive material, but if it determines that the document is of real significance to the case and the risk of prosecution for contempt is low, then inspection will be ordered. The UK Courts can put additional safeguards in place to allow for inspection, even where it would potentially breach foreign agreements and court orders.

Parties to litigation should be aware that the courts will always want to allow as full a disclosure of documents as possible to ensure that the evidence before the court is as comprehensive as possible. Parties often underestimate the extent to which material may have been dissipated prior to proceedings commencing and can sometimes be embarrassed for not disclosing documents which would appear to have been within their possession and control at the time of disclosure. This can be especially true of emails where the sender may fail to disclose an email, overlooking the fact that there may have been other recipients who were copied in or to whom the email may have been forwarded.

Litigators are always encouraging their clients to consider the full spectrum of evidence that may be relevant and may well be disclosed when considering whether to embark on litigation.

A party cannot control what is disclosed and so should be prepared to deal as openly as possible with their lawyers to ensure there are no nasty surprises during the disclosure process.

Even an agreement with the US Department of Justice is not beyond the reach of the UK courts. Please see Property Alliance Group Ltd v The Royal Bank of Scotland Plc [2015] EWHC 321 (Ch) for more information.

For further information on disclosure of confidential information and other Dispute Resolution matters speak to our team on 01274 306000.

About the Author

Tariq Umer


Tariq specialises in providing insolvency advice to practitioners; advising and assisting trustees…

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