FL-2020-000038 - [2025] EWHC 2136 (Ch)

You will be pleased to hear that I can be somewhat quicker with the remaining two Categories of documents, as it largely flows from my conclusions on the CSI Documents and the Defendant being in a somewhat weaker position on those. First, the US SAR documents.

There are 16 unique documents in this category, consisting of the US SARs themselves and the US SAR Information that might reveal the existence or content of the US SARs. FinCEN has not responded to letters seeking its consent to disclosure.

Once again, the Defendant says that it is constrained by US law as to what it can say about the content of these documents. In Mr Lewis’ reply evidence, a little bit more information has been disclosed, but not much.

He said that in November 2015, the Defendant’s lawyers sent four US SARs that were previously filed with FinCEN to various US authorities in the context of Project Larch. The US SARs raised issues concerning potential Iranian breaches, for example, shell companies being used to avoid US sanctions online banking transactions being made from Iranian IP addresses. Mr Lewis asserted that those documents would be of limited probative value, and they do not evidence awareness by any PDMR that any of the representations in the Published Information were false. Mr Patel submitted that from that limited explanation, these documents appear to be highly relevant, as they show facilitation of the evasion of US sanctions on Iran which is at the heart of the case. The reference to Project Larch is also significant, as the Claimants have the Project Larch list which includes certain PDMRs, and the question will be whether PDMRs saw these US SARs which were collected together to provide to the other authorities.

The other documents in this category are engagements by the Bank with the US Authorities between November 2014 and December 2018, again in the context of Project Larch. On the face of it, the same points as to relevance apply. There is also a suggestion in Mr Lewis’ evidence as to the redaction of the references to the US SARs in these documents, but I do not understand why that might have been thought to be appropriate.

As to the risk of prosecution or civil sanction, the Defendant has provided evidence on this from a Mr Himamauli Das, who served as acting director of FinCEN from September 2021 to September 2023 and currently works as a Senior Managing Director and Counsel at KS Integrity, a consulting firm working with governments and financial institutions on compliance programmes and interpretation of FinCEN rules. The Claimants do not challenge the accuracy of his evidence, but they say that it does not actually provide any evidence of a real risk of criminal or civil prosecution or sanction being applied in this case.

Mr Das explained that the unauthorised disclosure of US SARs or US SAR Information is a violation of US federal law, and both criminal and civil penalties may be imposed for such violations. He identified three cases where civil or criminal penalties for unauthorised disclosure of US SARs have been imposed on individuals. However those cases are far removed from this case, in that: one involved disclosure in exchange for a bribe; another involved a former Inland Revenue Service employee disclosing a US SAR related to President Trump’s former attorney, Michael Cohen; and the third was a former FinCEN senior adviser who disclosed more than 2,000 US SARs to a journalist. The penalties were relatively modest, no more than $25,000, but the disclosure of the 2,000 US SARs attracted a six-month prison sentence.

While Mr Das spent some time talking about disclosure in US litigation, he accepted that he was not aware of any case in which FinCEN had imposed penalties in a situation where a foreign Court had ordered the disclosure of US SARs. What is singularly missing from Mr Das’ analysis is any assessment of the risk of prosecution or even civil sanction in the circumstances of this case. He does not even seem to have been asked the question, despite that being the core issue on this application. I cannot conclude, therefore, based on the evidence before me that the Defendant has demonstrated any real risk of prosecution or civil sanction if the Defendant discloses US SARs pursuant to an English Court order.

I should add that the Defendant says – and this is not disputed – that US SARs documents are CSI, and so the considerations and risks in relation to CSI apply. However, I have made my findings in relation to the CSI Documents, and clearly they do not help the Defendant in relation to US SARs documents either.

Accordingly, I will order the US SARs and US SAR Information to be disclosed into a confidentiality ring.

Now the MAS Documents, of which there are 361 in total, comprising 74 unique documents. There are two categories of documents: the MAS Reports; and MAS Communications. The former comprise an inspection report of SCBSG, the Singaporean branch of the Bank, issued by MAS, and internal documents prepared by or for other regulators which reference parts of this or other MAS inspection reports. Mr Lewis makes the same points about relevance and nexus, saying that, while the MAS Reports touch on Group systems related to the pleaded Relevant Misconduct, they do not expressly deal with the UAE branches or the UK Wholesale Bank’s Correspondent Banking business.

The MAS Communications comprise email exchanges with MAS or summaries of communications with MAS in internal documents or documents prepared by other regulators. For the same reasons as the MAS Reports, Mr Lewis maintains that these are of only marginal relevance.

I have already dealt with similar arguments concerning the CSI Documents, and it seems to me very difficult to come to any judgment without seeing the documents as to their relative probative value. Having passed the threshold test of relevance, it does seem probable that these documents are inherently likely to contain details of the relevant failings of Group supervision and compliance and as to the knowledge of those failings at a senior level.

In relation to the risk of prosecution or civil sanction, both parties have obtained some expert evidence as to the position in Singapore. The Defendant has two letters dated 13 June and 23 July 2025 from Prolegis LLP, a Singapore law firm; and the Claimants have a letter dated 10 July 2025 from a Mr Clement Tan of Nine Yards Chambers LLC. Mr Tan worked as a District Judge in the State Courts of Singapore and as a contributing editor to major Singapore texts on civil procedure.

The restrictions on disclosure are said to derive from two sources: the Banking Act 1947; and the Official Secrets Act 1935, both of course in Singapore law.

Prolegis’ view is that the MAS’ refusal to consent to disclosure would have a real risk of “consequence” which could be a prosecution under s.46(5) of the Banking Act or the imposition of additional conditions on the banking licence. Having said that, they were not aware of this happening in the past, which they said was because no Singaporean bank would disclose inspection reports without the written consent of MAS.

This whole argument is dependent on MAS’ refusal to consent in an oral conversation that took place on 28 May 2025. I have already expressed my surprise at the lack of any written communication from MAS, and Mr Lewis has provided very scant details of this oral conversation. In his witness statement, he said: “On the call, the MAS refused permission to disclose the MAS Reports and MAS Communications, but permitted disclosure of internal documents containing reference to the MAS…” I have no idea what was said to MAS about the documents, a confidentiality ring, or the litigation here. I do not know upon which basis MAS refused to authorise disclosure of the MAS Reports and the MAS Communications. I do not know if MAS threatened sanctions if they were disclosed pursuant to a court order. In summary, it is pretty weak evidence upon which to base a suggestion that there is a real risk of prosecution, particularly as the basis for this at law is not clear and the experts are in conflict. In fact, all Prolegis say is that there is a “real risk of consequence”. They do not say “real risk of prosecution”. The notion that there could be conditions on the banking licence as a result of compliance with an English Court order seems somewhat fanciful and unlikely.I agree with Mr Patel that the more likely reason for there being no prosecutions under the Banking Act in similar circumstances is that the factors that MAS or prosecuting authorities would take into account include, in particular, once again, that it has been ordered by an English Court. As Mr Tan pointed out, Singapore law is based on English law, and there are strong considerations of comity between Singapore and England. It is inherently unlikely that MAS would prosecute a bank headquartered in London in respect to the activities of its Singapore branch for complying with a London Court order.

It seems to me that there is actually no evidence before me on which I could conclude that there is a real risk of prosecution by MAS under the Banking Act for disclosure pursuant to an English Court order. There are disputes on the evidence as to whether the Defendant itself is prohibited from disclosing the MAS Documents, for example on the basis that the Defendant is not incorporated in Singapore, and whether it could be prosecuted for accessory liability. I cannot possibly resolve those disputes before me this occasion, but I agree with what Henshaw J said in Al Wazzan, that the uncertainty as to the legal position reduces the risk even further of any risk of prosecution.

As to the Official Secrets Act, this has of course been applied many times, but in very different situations. Mr Tan questioned whether s.5 can properly apply to MAS Documents that do not have a bearing on Singaporean national interests. He also said that the Bank would have a defence to any such proceedings on the basis that it had a duty to communicate the relevant documents pursuant to an English Court order. Prolegis were of the view that MAS were relying on the Official Secrets Act in refusing consent. But there is no way of knowing if this was so, as it is again dependent on the content of the oral conversation, as MAS has not deigned to reduce its objections to writing.

In all the circumstances, I conclude that the Defendant has again not demonstrated any real risk of prosecution in relation to the MAS Documents. Accordingly, given their apparent relevance to the issues in dispute in this litigation, I exercise my discretion to require them to be disclosed. The MAS will be protected by the fact that this will be disclosed into a confidentiality ring.

As a result of all these conclusions, I dismiss the Defendant’s Dispensation Application.

I therefore turn to the Confidentiality Ring Application, and this now concerns all the aforementioned documents that I have ordered to be disclosed, together with Categories 5 and 6 of the CSI Documents that the FRB and NYDFS permitted disclosure of into an EEO confidentiality ring. I also have to consider whether the Accountability Review Documents should go into a confidentiality ring.

The points at issue therefore seem to me to be:

The proposal from the Defendant is that there should be two CROs working in parallel, I assume:

While the parties are said to have been agreed on the relevant principles, it is as well to remind ourselves of them, in particular the exceptional nature of any form of CRO and especially an EEO CRO. The principles have been helpfully and comprehensively set out by Cockerill J in another of the Nox Emissions group litigation, Cavallari v Mercedes-Benz Group AG & Ors [2024] EWHC 190 (KB) at [20] -[33].

In [22] and following, Cockerill J said as follows:

“22.

The starting point as a matter of law is the principle of open justice. It is, as the Court of Appeal recently remarked in J.C. Bamford Excavators Ltd v Manitou UK Ltd [2023] EWCA Civ 840 at [71] a fundamental principle of English Law. The reasoning of the House of Lords in Scott v Scott [1913] AC 417 remains as sound today as it was then; as does the quote from Jeremy Bentham which they cite:

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial."

23.

Open justice is also, as noted in Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38, [2020] AC 629 (per Lady Hale at [43]), vital to enable the public to understand how the justice system works, to understand the issues in cases and how, based on those issues, decisions are reached by the courts.

24.

It follows from this that each party should generally have unrestricted access to the other’s disclosure (see for example Hamblen J in Libyan Investment Authority v Société Générale SA [2015] EWHC 550 (QB) (“LIA”) at [20]). All parties have the benefit of the protection offered by the collateral undertaking at r 31.22 CPR regarding the use of documents disclosed in the course of proceedings. In the vast majority of cases and for the vast majority of documents, the undertaking will be sufficient protection.

25.

Confidentiality orders offering enhanced protection beyond the collateral undertaking are therefore “the exception rather than the rule” (per Christopher Clarke J in Porton Capital Technology Funds v 3M UK Holdings Ltd [2010] EWHC 114 (Comm) at [43]).

26.

A confidentiality ring involves a departure from the open justice principle which must be justified. As Hamblen J made clear in LIA at [21] “It is for the person seeking the imposition of a confidentiality club to justify any departure from the norm” (see also Porton Capital at [43]). Any restriction should “go no further than is necessary” for the protection of the right in question (LIA at [21]-[22]). As Roth J explained in Infederation Limited v Google LLC & ors [2020] EWHC 657 (Ch) at [42]: “…the important points to emerge from the authorities are that: (i) such arrangements are exceptional; (ii) they must be limited to the narrowest extent possible; and (iii) they require careful scrutiny by the court to ensure that there is no resulting unfairness.”

27.

With that scrutiny in mind, the burden lies on those seeking to displace the application of the open justice principle to produce clear and cogent evidence to explain why that departure is justified: the “real risk” of the right of inspection being used for a collateral purpose. It must be shown that “by nothing short of the exclusion of the public can justice be done” (Scott v Scott [1913] AC 417, per Viscount Haldane at page 438, and per Earl Loreburn at page 446). The question is not one of convenience, but of necessity (Al Rawi v Security Service [2011] UKSC 34.

28.

The claim to confidentiality therefore needs to be focused with precision by reference to the precise contents of documents: it can often be suitably protected by the use of redaction and/or gisting as tools by which as much of a document or its relevant contents is put into open (see e.g. London Regional Transport v Mayor of London [2001] EWCA Civ 1491...).”

Then turning quickly to [31], Cockerill J said:

“31.

The considerations relevant to the imposition and terms of a confidentiality club were summarised by Hamblen J in LIA at [34] (see also per Floyd LJ in Oneplus Technology v Mitsubishi [2020] EWCA Civ 1562 at [39]):

“The imposition of a confidentiality club and, if so, its terms, generally involves a balancing exercise. Factors relevant to the exercise of the court’s discretion are likely to include:

(1)

The court’s assessment of the degree and severity of the identified risk and the threat posed by the inclusion or exclusion of particular individuals within the confidentiality club — see, for example, InterDigital Technology Corporation v Nokia [2008] EWHC 969 at [18] and [19].

(2)

The inherent desirability of including at least one duly appointed representative of each party within a confidentiality club — see, for example, Warner-Lambert v Glaxo Laboratories [1975] RPC 354 at [359] to [361].

(3)

The importance of the confidential information to the issues in the case — see Roussel UCLAF v ICI at [54] and IPCom GmbH v HTC Europe [2013] EWHC 52 (Pat) at [20].

(4)

The nature of the confidential information and whether it needs to be considered by people with access to technical or expert knowledge — see IPCom GmbH v HTC Europe at [18].

(5)

Practical considerations, such as the degree of disruption that will be caused if only part of a legal team is entitled to review, discuss and act upon the confidential information — see Roussel UCLAF v ICI at [54] and InterDigital Technology Corporation v Nokia at [7].”

Finally, in [33], she said:

“33.

It must be kept in mind that although the parties may agree an ‘external eyes only’ confidentiality ring, ‘[a]n arrangement under which an officer or employee of the receiving party gains no access at all to documents of importance at trial will be exceptionally rare, if indeed it can happen at all’, ‘restricting disclosure to external eyes only at any stage is exceptional’, and the ‘onus remains on the disclosing party throughout to justify [external eyes only] designation for the documents so designated’... (per Floyd LJ in Oneplus Technology (Shenzhen) Co Ltd v Mitsubishi Electric Corp [2020] EWCA Civ 1562; [2021] FSR 13 at [39]).”

So it is, therefore, for the Defendant to demonstrate why such exceptional orders in exceptional EEO terms should be made in this case. Mr Handyside’s application in this respect was largely based on the CSI Documents Categories 5 and 6, that the FRB and the NYDFS agreed should be disclosed but specified in their letters that it must be into an EEO confidentiality ring. I assume that the Defendant will maintain the same position in relation to the remainder of the documents that I have just ordered to be disclosed.

A CRO on EEO terms is wholly exceptional. It prevents the lawyers for that receiving party from discussing the documents and giving advice on them. If that party wished to rely on those documents for the purpose of amending their pleadings, there would be difficulties in taking instructions to such effect and providing a statement of truth, although Mr Handyside did suggest a way round that. Furthermore, the Claimants in this case have obligations towards their funders to keep them informed as to the material developments in the proceedings and it is necessary for a representative of the funders to be kept fully abreast of all developments and to discuss the impact of new significant evidence coming to hand. It is obvious that the Defendant must show a very good justification for preventing representatives of the receiving party and their funders from being party to the confidentiality ring.

The only justification for limiting the CRO to EEO put forward by Mr Handyside is that this was what was stipulated by the FRB and the NYDFS in their letters as a condition of granting approval for the disclosure of Categories 5 and 6 of the CSI Documents. Mr Handyside submitted that, this being a condition of the grant of permission, that, if the CRO was widened to include Claimants and funder representatives, this would mean a breach of the CSI rules and federal criminal law and would be an aggravating factor for the FRB and NYDFS who would be likely to take a dim view of this result and there is a real risk of prosecution or civil sanction. He said that the position is exacerbated by defiance of an express stipulation in the letters of approval.

I do not accept this for the same reasons as I have explained in relation to the risk of prosecution and other civil sanctions for complying with an English Court order to disclose. That risk is no greater, it seems to me, when the documents are disclosed into a CRO that is not limited to EEO. Neither expert suggests that the risk has increased in those circumstances.

T In fact, it is interesting to see what Mr Bourtin said in his second letter dated 12 June 2025. His evidence was that the FRB and NYDFS would likely consider allowing their CSI to be disclosed into a confidentiality ring limited to, “the Court, attorneys for the parties, and a limited number of client representatives”. It therefore seems to have been Mr Bourtin’s view that there was no particular reason why the FRB and NYDFS would insist on an EEO confidentiality ring.

However, the way this was put to the FRB and NYDFS became the subject of some debate at the hearing, because it appears from their letters that the Defendant only gave them the option of an EEO confidentiality ring if they were minded to allow disclosure of some or all of the CSI Documents. The FRB referred to the draft CRO that had been provided to it by the Defendant’s lawyers and said that that was what it required as a condition of permitting disclosure of Categories 5 and 6 of the CSI Documents. In his reply oral submissions, Mr Handyside told me on instructions what had happened. The long and short of it is that during discussions with the FRB and NYDFS in the run-up to their letters, it was made clear that there would need to be a protective order in place if any disclosure was permitted, and the draft order on the CRO application, which was in EEO terms, was provided to them. It was also apparently made clear, I do not know in what form, i.e. orally or in writing, that the Claimants would be likely to want to widen the EEO restriction to include Claimant and funder representatives. It was also suggested that there could be a staged process where the documents go first into an EEO ring and this is later reviewed and the net possibly widened. This was something that Mr Handyside also urged on me, saying that for now we should comply with the conditions in the FRB and NYDFS letters and then review, perhaps after going back to them to see if they might relent further.

The net result, according to Mr Handyside, is that the Defendant has been put in a very difficult position and it runs the risk of suffering consequence, not only by defying its regulators’ refusal to omit disclosure of Categories 1 to 4, but also defying the EEO condition.

In my view, there is no justification for limiting the CRO to EEO terms. That can only be done where there is some valid distinction to be made between disclosure to a party’s lawyers and a very small number of representatives of the Claimants and their funders. The Defendant does not suggest that such representatives cannot be trusted to comply with their undertakings to the Court, which they will give so as to be part of the ring. Nor is there commercially sensitive material being disclosed or trade secrets or patent designs that could be abused by a competitor or rival. That is the normal justification for an EEO restriction. There is nothing like that in this case. The only justification put forward is that the FRB and NYDFS have made it a condition of their permission. But as we have seen, that was the only CRO that was put to them and there does not seem to me to be any principled reason why it has to be on EEO terms; nor, according to their own expert, is there any suggestion that the FRB or NYDFS would have any real objection to the Claimant and funder representatives being included in the ring.

It is for the English Court to decide, in accordance with the principles it adopts in relation to withholding documents from the normal rules of disclosure and I can see no justification for the ring being limited to EEO. The fact that it causes the Claimants no real prejudice, something which is not accepted by them, is neither here nor there. The open justice principle is a fundamental tenet of English law, and it can only be derogated from for very good reason. I do not believe that it puts the Defendant in any more peril than it was in before and no credible justification has been put forward for the ring being limited to EEO. Accordingly, I will direct that the CRO for the documents that I have ordered to be disclosed will be on terms to include three Claimant representatives and a representative of the funder. It will therefore be on the same terms as the CRO for the UAE SAR Documents and the STR Document.

The second question is whether the Defendant should be entitled to approve in advance the identities of the representatives. The only reason put forward for this condition is that the Defendant would like to ensure that the representatives are of the Claimants that the Defendant has agreed have standing. It is not said, as I understand it, that the Claimants who have not yet proved their standing to the Defendant’s satisfaction are any less trustworthy or engaged than those that have been approved.

Mr Patel submitted that it would be totally wrong to allow the Defendant to dictate which Claimant representatives are to be part of the confidentiality ring. Whoever the Claimants choose will be subject to undertakings to the Court and the CPR 31.22 restriction of only using the documents for the purposes of the proceedings. Whether the Defendant has accepted standing in relation to that Claimant is irrelevant, as it would be in relation to any other issue in the proceedings. It is a matter for the Claimants alone.

I agree. I do not see there is any justification for the Defendant being involved in the selection of Claimant representatives and I will not add that as a condition.

Finally, I come to the Accountability Review Documents. These are said to include investigations into the performance, conduct, and accountability of the Bank’s employees, in relation to issues that are relevant to these proceedings. As such, they may contain criticism of employees, some of whom may not be witnesses in the case. They are therefore confidential and may be embarrassing for them to be aired in public.

This strikes me as a very weak application, and there is simply no justification for such documents to go into a confidentiality ring. If these sorts of documents were to go into confidentiality rings, it would broaden the availability of confidentiality rings hugely and would lead to a serious derogation from the principles upon which litigation is conducted in this country, through the disclosure of all relevant documents always subject to the collateral purpose restriction in CPR 31.22.

The Defendant seems to have recognised this, as paragraph 73 of its skeleton argument says: “SC plc recognises that documents of this kind might ordinarily be thought not to merit the enhanced protection of a confidentiality ring (on the basis that the protection of CPR 31.22 is sufficient).” It then goes on to explain why it is making the application but provides no explanation in the paragraphs that followed about why these documents should be protected by a confidentiality ring. The fact that they are sensitive, embarrassing, and will not prejudice either the open justice principle or the Claimants could be said about many documents that have to be disclosed in a normal way. To allow disclosure of these documents only into a confidentiality ring would be the start of a slippery slope down which the Courts should not go.

I am sure it will be possible for the parties to agree that any particularly sensitive parts of these documents could be redacted in suitable ways before being referred to in public, but at this stage it would be wholly inappropriate to order such documents to go into any sort of confidentiality ring.

I think that concludes all the matters that I have to decide and I apologise for the length of this judgment, which I see has taken nearly two hours, and that you have had to listen to me delivering it orally today. While it could have been tightened up if I had more time to deal with it, I thought it important that the parties know my decision, with the trial being only just over a year away. I also wish to add that although I have found against the Defendant in all these applications, I do understand why it was necessary for it to bring the Dispensation Application, at least, and to put forward the arguments that it did. As I have said, it has done what it was obliged to do in complying with its obligations to its regulators, and I am convinced and hopeful that those regulators will recognise that and understand the basis for my decision, which is not to downgrade the importance of protecting the confidentiality of these documents. It is to ensure that there can be no doubt that the Claimants and the Defendant will receive a fair trial of the very serious issues to be decided in this case. As was said in both Bank Mellat and the Byers case by Fancourt J, I would expect foreign regulators as a matter of international comity to take into account that disclosure has been ordered in this case after full consideration of their concerns and the requirements of the English law rules of procedure.

I hope that a suitable order can be drawn up reflecting my decision. That is the end of my judgment.

I am going to refuse permission to appeal in relation to the Dispensation Application. Mr Allen submitted to me that I had underestimated the strength of their evidence as to the risk of a prosecution. That seems to me to be attacking essentially my factual findings and my evaluation of the evidence, including the expert evidence, that had been brought before me. That will not be something, in my view, that the appeal court would want to consider again and it will not want to give the Defendant the opportunity simply to argue the same again on appeal.

For permission to be granted, Mr Allen really needed to point to some sort of error of law in my approach. However, this was essentially a discretionary exercise that I was carrying out albeit based on the principles as set out in the authorities. I did not detect from his submissions in relation to permission to appeal that I had seriously erred in law, although he did suggest that perhaps I did not consider the wider importance and the possible conflict between National Crime Agency v Abacha and Bank Mellat as to the importance of potential civil sanctions and the issue of comity as a freestanding aspect of the consideration in a case like this.

I do not accept that there is any real prospect of a successful appeal on those matters; nor do I think that there is a wider issue that is suitable to go to the Court of Appeal in this situation. It has been to the Court of Appeal in Bank Mellat. That, if anything, was a stronger case where a risk of prosecution was found to exist but, essentially, my decision was based on an exercise of discretion and as is well known, the Court of Appeal will be reluctant in the extreme to interfere with an exercise of discretion in that way. I know I do not have a particularly good record in relation to permissions to appeal in this case, but you will have to take it to the Court of Appeal if you do decide to go further.