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

This is my oral judgment being delivered at 2 p.m. on Monday, 4 August 2025, following the fifth CMC in these proceedings held on 30 and 31 July 2025, which was last Wednesday and Thursday. I thought it better that the parties had my judgment sooner rather than later, given the start of the summer vacation.

I am the assigned judge for these proceedings. The CMC was dominated by argument on two applications brought by the Defendant, Standard Chartered PLC, this time represented by Mr Richard Handyside KC, Mr Rupert Allen KC and Mr Dominic Kennelly. The two applications are:

There are also some further case management directions that the parties were seeking from the Court but which I am pleased to say were agreed between the parties, and so I need to say nothing more about them.

The Claimants, who are 217 in number and are said to represent some 1,410 funds, were investors in the Defendant, and they bring their claims against the Defendant pursuant to ss.90 and 90A of and Sch.10A to the Financial Services and Markets Act 2000. The claim is worth approximately £1.5 billion. I have set out the background in numerous previous judgments, including most recently a strikeout application in respect of what are called the “Common Reliance Claims” and my judgment on that is reported at [2025] EWHC 698 (Ch), although that judgment is now going to the Court of Appeal pursuant to permission granted by Zacaroli LJ on the 9 July 2025. I will not, therefore, set out in this judgment any of the background to the substantive case.

Mr Shail Patel KC, with Mr William Harman, represented the Claimants at the CMC. The Claimants opposed both applications, although they proposed an alternative solution to the Dispensation Application, which is to order disclosure but into a confidentiality ring. They say that the risk of criminal prosecution or civil enforcement action, if this happens, is remote in the extreme and this provides a fair balance that will ensure that all relevant material is available to the Claimants and the Court so that the issues can fairly be tried next year.

A very extensive disclosure exercise has been carried out by the Defendant and its lawyers. This is described in the witness statements of Mr Rupert Lewis of Herbert Smith Freehills Kramer LLP, the Defendant’s solicitors. They have collected many millions of documents, but they anticipate, after having conducted several layers of review, that those documents will be whittled down to about 50,000 relevant documents, including duplicates, that will be disclosed. They have spent well over £40 million so far on disclosure.

It was always anticipated that there may be issues with foreign law restrictions on disclosure, in particular in relation to the Defendant’s regulators and customers throughout the world. Accordingly, those documents that might be subject to such restrictions were left to the last tranche of disclosure in order to give the Defendant more time to work out its position in relation to them and, if possible, to get the consent of the regulatory authorities to their disclosure in these proceedings. It has managed to resolve quite a few such issues, including by making an application to the UAE Courts, but there remain issues with the US and Singapore regulators as I will explain.

In fact, there have been serious developments in the last two or three weeks, well after the application was issued, and unfortunately only notified to the Claimants quite late in the day, through the reply evidence that was served on behalf of the Defendant on Wednesday 23 July, shortly before skeleton arguments were due to be exchanged. The core point is that the majority of the documents in respect of which dispensation was being asked for can now be disclosed into a confidentiality ring. There is a dispute about who should be in the confidentiality ring but at least the principle as to disclosure of certain such documents has been resolved. There still remains, however, documents in some of the original categories that the Defendant considers cannot be disclosed without real risk of serious action being taken by its foreign regulators, so the principle does need to be considered. But at least the Claimants will get to see the majority of the documents, albeit within the restrictions of the confidentiality ring.

Mr Patel complained about the lateness of all of this and that the Defendant and its lawyers should have been progressing their negotiations with the respective regulators far earlier. But we are where we are and I need to decide whether there is any real justification for the remaining documents, which have been deemed relevant by the Defendant’s lawyers, to remain undisclosed, which would, of course, be an exceptional order to make.

The Dispensation Application concerns three categories of documents:

The Defendant wants to withhold these categories of documents from disclosure unless and until it receives authorisation from the relevant regulators to allow disclosure and inspection of them. The Defendant says the following in broad outline:

The Claimants say that they potentially could not get a fair trial without access to these documents. They say that the burden is on the Defendant to justify non-disclosure and, in the balancing between the risk of an unfair trial and the risk of criminal prosecution and/or civil enforcement action if the documents are disclosed, the Court should come down on the side of disclosure. This is consistent, they say, with the recent authorities in this area. They also complain about the way the Defendant has gone about this whole process and more particularly as to the lack of explanation as to the contents of the documents, considered relevant by the Defendant, otherwise there would be no need for disclosure at all. But that makes it difficult to assess how useful or probative they might be to the Claimants’ case. The Defendant seeks to suggest that the documents are just about relevant or “tangentially relevant”, as it prefers to say.

The Defendant is, of course, under a duty to protect the confidentiality of its regulator’s documentation and processes and to act in accordance with the law and the authorisations granted by those regulators. But I, as the Court, have to balance the need for a fair judicial process in this country in accordance with our procedural rules in relation to the disclosure of documents, which is at the core of our system, and to judge the extent to which this may put the Defendant in difficulty in another jurisdiction.

I should explain the current situation and the recent narrowing of the number and categories of documents subject to the application.

As regards the CSI Documents and the US SAR Documents, the FRB and NYDFS wrote to the Defendant on 17 July 2025 and 21 July 2025 respectively:(i) granting the Defendant’s request for permission to disclose internal documents containing references to CSI (other than US SAR Information) subject to various conditions, including that they be disclosed into a “lawyers only” confidentiality ring - these are the subcategories 5 and 6 of CSI that I will come on to describe; but (ii) otherwise refusing the Defendant’s request for permission to disclose the CSI Documents (including the US SARs and the US SAR information) - this is subcategories 1 to 4 which, as I said, I will come on to explain. This recent development is significant but also perhaps difficult to reconcile with the regulators’ overall position, but it means that the majority of the CSI Documents originally identified by the Defendant can now be disclosed – it is apparently some3,215 unique documents – subject to the conditions set out by the FRB and the NYDFS on the basis of which they were willing to authorise their disclosure.

The regulators and the Defendant assert that these internal documents are much more likely to be relevant to the issues of PDMR (Persons discharging managerial responsibility) knowledge that arise in these proceedings than the direct supervisory communications passing between the US regulators and the Defendant or its New York branch, SCBNY, in respect of which the FRB and NYDFS have expressly declined the Defendant’s request to authorise disclosure. That is challenged by the Claimants, as is the suggestion that the Defendant is at more risk now in relation to direct supervisory communications because the regulators have made it clear why there are particular sensitivities and authorisation to disclose has been specifically refused.

As regards the MAS Documents, the MAS refused to grant permission for the Defendant to disclose these documents in an oral conversation with the Defendant and its lawyers on 28 May 2025. The only evidence of this is contained in Mr Lewis’s witness statement and no detail as to the basis for their refusal of permission to the MAS Documents was provided, although they did allow another category of internal bank documents that referred to MAS Reports to be disclosed. Somewhat surprisingly in my view, the MAS has not responded in writing to the Defendant’s request and it remains, therefore, unclear as to how it will react to the Court requiring the Defendant to disclose the MAS Documents. There is expert evidence filed by both sides as to the position in Singapore in relation to these matters as there is for the US position and I will deal with this in detail later.

Before looking at that detail, I should set out the legal principles that apply in this context. There have been a number of recent authorities in this area, principally following from the Court of Appeal decision in Bank Mellat v HM Treasury [2019] EWCA Civ 449 (“Bank Mellat”). There were some points of difference between Mr Handyside and Mr Patel as to the applicable tests in this situation although I think that, in reality, these are more a difference of emphasis.

The starting point is Bank Mellat and the judgment of Gross LJ, with whom Peter Jackson and Coulson LJJ agreed. The relevant paragraph summarising the applicable principles is [63] but Mr Handyside took me to some other paragraphs of the judgment, one of which I will refer to.

This was an appeal against the decision of Cockerill J, and at [11] Gross LJ referred to the fact that Cockerill J had ruled that the risk of prosecution under Turkish law was such that the particular documents related to that should not be provided to HM Treasury. As it turned out, Bank Mellat dropped its claim in relation to Turkey, so this became irrelevant and did not form part of the appeal. The appeal concerned the risk of prosecution in Iran for disclosure of other documents and the importance of those documents to a fair trial and the discretionary balancing exercise.

After referring to earlier authorities, Gross LJ referred to Neuberger J’s judgment in Morris v Banque Arabe et Internationale d’Investissement SA [2001] IL Pr. 37, (“Morris”) which concerned a French Blocking Statute prohibiting the defendant French Bank from using certain documents in foreign legal proceedings. At [60] of Gross LJ’s judgment, he referred to Neuberger J’s judgment in Morris as follows:

“Neuberger J (as he then was) held (at [50]) that the Court had jurisdiction to order inspection of the documents. Under the CPR, the Court had a discretion whether or not to order a person resident and domiciled in another country to do something which would be a breach of the criminal law of that country (at [59] and following). On that footing, putting aside considerations relating to the Hague Convention (which ultimately did not dissuade him), he had little hesitation in exercising his discretion to do so; the absence of the documents in question (at [68]) would ‘….very substantially interfere with the liquidators’ ability to pursue the case and would clearly hamper the Court’s ability to try the case fairly’. Although (at [71]), by affording inspection, the bank would be committing an offence under the Blocking Statute.

“and could, at least in theory, suffer the imposition of a penalty, it appears to me that this risk, on the evidence I have heard, is little more, and indeed is probably no more, than purely hypothetical.”

Neuberger J (at [74]) added these observations:

“…in connection with litigation of this sort, involving a substantial sum of money, alleged wrongdoing and in the context of a massive and notorious international financial scandal….[it]…would be highly unusual if the French criminal authorities were to prosecute a party to an action such as this in England, in circumstances where he was required to comply with an order of the Court for production of documents for the purposes of that action. The enforcement of a law such as the Blocking Statute in a case such as this would not correspond with generally accepted notions of comity.””

(Mr Handyside pointed out that Gross LJ did not refer to [73] of Morris, which Mr Patel had relied upon, but that does not mean that [73] is not correct, and I will come on to refer to that in a moment.)

At [62] of Bank Mellat, Gross LJ referred to a passage that has proved to be somewhat controversial in this application from Matthews and Malek, Disclosure, 5th ed., at [8.26], and Gross LJ quoted the relevant passage from that book as follows:

“The court may take into account, in deciding whether to order disclosure, the fact that compliance with the order would or might entail a breach of foreign law… It will… need to be shown that the foreign law concerned contains no exception for legal proceedings, and that it is not just a text, or an empty vessel, but is regularly enforced, so that the threat to the party is real. Even so, the court has a discretion and, on the basis that English litigation is to be played according to English and not foreign rules, it will rarely be persuaded not to make a disclosure order on this ground. More often than not where foreign law is raised as an objection, any threat of a sanction abroad against the disclosing party is found to be more illusory than real…”

Then moving to the important [63] of Bank Mellat, I will quote it in full:

“Pulling the threads together for present purposes:

i)

In respect of litigation in this jurisdiction, this Court (i.e., the English Court) has jurisdiction to order production and inspection of documents, regardless of the fact that compliance with the order would or might entail a breach of foreign criminal law in the ‘home’ country of the party the subject of the order.

ii)

Orders for production and inspection are matters of procedural law, governed by the lex fori, here English law. Local rules apply; foreign law cannot be permitted to override this Court’s ability to conduct proceedings here in accordance with English procedures and law.

iii)

Whether or not to make such an order is a matter for the discretion of this Court. An order will not lightly be made where compliance would entail a party to English litigation breaching its own (i.e., foreign) criminal law, not least with considerations of comity in mind (discussed in Dicey, Morris and Collins, op cit, at paras. 1-008 and following). This Court is not, however, in any sense precluded from doing so. Foreign law cannot be permitted to override this court’s ability to conduct proceedings here in accordance with English procedures and law.

iv)

When exercising its discretion, this Court will take account of the real – in the sense of the actual – risk of prosecution in the foreign state. A balancing exercise must be conducted, on the one hand weighing the actual risk of prosecution in the foreign state and, on the other hand, the importance of the documents of which inspection is ordered to the fair disposal of the English proceedings. The existence of an actual risk of prosecution in the foreign state is not determinative of the balancing exercise but is a factor of which this Court would be very mindful.

v)

Should inspection be ordered, this Court can fashion the order to reduce or minimise the concerns under the foreign law, for example, by imposing confidentiality restrictions in respect of the documents inspected.

vi)

Where an order for inspection is made by this Court in such circumstances, considerations of comity may not unreasonably be expected to influence the foreign state in deciding whether or not to prosecute the foreign national for compliance with the order of this Court. Comity cuts both ways.”

Mr Handyside emphasised (iii) - that an order will not lightly be made when it requires a party to breach its own foreign criminal law. Mr Patel emphasised (iv) that it must be a real risk of prosecution – that is, not just a theoretical risk – and if there is, it has to be balanced against the importance of the documents in question. If there is, however, no real risk of prosecution, there is nothing to weigh in the balance, Mr Patel said. Also, he focused on (vi), as it makes clear that comity cuts both ways. That means, to my mind, that the foreign regulator or prosecuting authority should respect, so far as possible, the considered view of the English Court as to whether it is appropriate in the circumstances, having taken account of the views of the foreign regulator, that the respective documents should be disclosed. The Defendant’s position seems to be that they will actually pay little attention to that.

Returning to that statement in Matthews and Malek, that it will be necessary for the applicant – in this case, the Defendant – to show that the foreign criminal sanction is not just a “text or empty vessel” and is regularly enforced, this seems to have been upheld as a statement of the law by Butcher J in Tugushev v Orlov & Ors. [2021] EWHC 1514 (Comm) at [33], where he said:

“Secondly, I consider that the statement in Matthews and Malek which is cited by Gross LJ at paragraph 62 of Bank Mellat is helpful, and that it is ordinarily the case that it will need to be shown that the foreign law does not contain an exception for legal proceedings and that it is not just a text, or an empty vessel, but is regularly enforced so that the threat to the party is real.”

The Defendant in this case cannot show that there have been previous prosecutions in similar cases, because both experts cannot point to any such prosecutions. They have different explanations for why that is so, but sticking to the law, Mr Handyside also showed me Cockerill J’s judgment in the Nox Emissions litigation, Joshua & Ors. v Renault SA & Ors. [2024] EWHC 1424 (KB), in which she does not wholly support the statement that was made in Matthews and Malek. In [77] and [78], she said as follows:

“77.

But at the same time the party who alleges that it is under a risk of prosecution has the burden of proving that and that a difference of views between experts does not mean that there is such a risk: Public Institution for Social Security v Al Wazzan [2023] EWHC 1065 [156] per Henshaw J. But there is no presumption standing in the way of that proof. The Defendants suggest that the passage in Matthews and Malek, Disclosure (5th ed) at paragraph 8.26 (cited in Bank Mellat at [62]) that the court will rarely be persuaded not to make a disclosure order on this ground and only if the disclosing party shows that the foreign law is regularly enforced so that the threat to the party is real puts the case too high. This is naturally the submission which must be made where (as here) there is said to have been a recent change of approach by the foreign state which makes prosecution more likely but which has not, in the short passage of time since, resulted in actual prosecutions.

78.

I do accept that submission. In many cases the passage cited may be right; but it is not a safe rule. The rule is proof (by the party invoking it) of a real risk of prosecution. The past may or may not be a safe guide to future performance or risk, depending on the circumstances. The party relying on a risk of prosecution must show that the criminal law relied on is not merely a ‘text or an empty vessel’, to adopt the words used by Butcher J in Tugushev v Orlov [2021] EWHC 1514 (Comm), and that the risk is a real, rather than fanciful one. The relevant issue is risk of prosecution, not risk of a sanction or risk of breaching the foreign law. The greater the risk the more weight is to be given to this factor: Tugushev [32-36].”

Clearly, Cockerill J was referring to a particular situation where there may have been a change of policy by the foreign state which makes prosecution more likely. There is no evidence in this case of any change in policy by US regulators - indeed, we have no idea what their policy is in relation to prosecutions in this situation - and Cockerill J accepted that, “In many cases the passage cited may be right.”

In The Public Institution for Social Security v Al Wazzan & Ors. [2023] EWHC 1065 (Comm) (“Al Wazzan”) (which was referred to by Cockerill J), Henshaw J emphasised that the burden is on the party seeking to prevent disclosure. I think this is accepted, and it is obviously correct. At [156] of that judgment, he said as follows:

“In principle I would agree that the court should exercise care when approaching issues of Swiss substantive law on which experienced experts have expressed different views. However, it does not follow that the mere existence of genuine disagreement must be equated to the existence of a real risk. (To the contrary, there is force in the view that prosecution is relatively unlikely if there is real doubt about the law.) In my view the court can and should form a view as to whether, on the evidence put forward, one or other opinion appears materially more likely than the other to be correct. It is for the applicants to establish a real risk of prosecution or (arguably) other prejudice, and a component of that assessment must be the court’s view as to how likely it is that disclosure and inspection would infringe Swiss law. In the present case, for the reasons given in section (E) above, I consider it much more likely on the evidence that there would be no such infringement.”

He said there that there must be an assessment of the expert evidence, and if there is a disagreement, that does not equate to a risk. In [157], he went on to say that there was no evidence, in his case, of prosecutions in similar situations, and that proved influential.

In NMC Health PLC (in administration) v Ernst & Young LLP [2025] EWHC 1048 (Comm), Moulder J at [138] said as follows:

“The UAE authorities may well take breaches of court orders ‘seriously’ but that is not the test on the English authorities which this Court applies: this Court is concerned with ‘the real – in the sense of the actual – risk of prosecution in the foreign state’. The evidence of Mr Ramadan that he has not found any precedents for breach of confidentiality restrictions under Article 313 is therefore in my view highly relevant to the question of how real any risk of prosecution is.”

There needs to be actual evidence of prosecutions for it to be shown that there is a real risk of prosecution. Explanations have been offered in this case for the lack of prosecutions and those will have to be considered, but I agree with Mr Patel that it is a highly pertinent factor that there is no example of a prosecution in similar circumstances where the regulated person has been ordered by the foreign court to disclose the documents that necessarily breach the confidentiality restrictions.

One further authority to refer to is an unreported decision of Bright J, made very recently on 13 June 2025, in LLC EuroChem North-West-2 & Anor. v Société Générale SA & Ors. [unreported]. At [15] to [17], which I do not need to quote from, again show a judge requiring evidence that a particular provision constituting a breach of the criminal law has been regularly enforced.

On the assumption that an actual real risk of prosecution is shown if the Court orders disclosure, the Court then has to conduct a balancing exercise.

Going back to Al Wazzan, Henshaw J’s decision, he quoted from Morris in [44], and the quote is – I referred to this earlier – from [73] of Morris, where Neuberger J, as he then was, said as follows:

“Although not necessary to my decision, I agree… that the Court should normally lean in favour (probably heavily in favour) of ordering inspection, especially where a substantial number of important documents are involved. As I have mentioned, the question of discovery and inspection is obviously a question of procedure which, under international law, is to be determined in accordance with the lex fori.”

This makes clear that the court tends to lean very much in favour of disclosure. In all the authorities before me where this issue has been considered, there is not one where the court has refused to order disclosure. The only example was in Cockerill J’s judgment referred to in the Court of Appeal decision in Bank Mellat in relation to the Turkish documents.

But in other cases cited to me, such as Byers & Ors. v Samba Financial Group [2020] EWHC 853 (Ch) (“Byers”), a decision of Fancourt J, at [105], he ordered disclosure even though he found that there was a risk of prosecution. Fancourt J further held at [107] of that decision that the Saudi Public Prosecutor could be expected to recognise, as a matter of comity between friendly states, that compliance with a lawful order of a foreign court to disclose was so that the bank could properly defend itself in proceedings that had jurisdiction over the bank. It seems to me that one could similarly expect the foreign regulators in this case to recognise and pay heed to the fact that an English Court with competent jurisdiction over this matter has deemed documents to be so necessary to be disclosed in the interests of justice and despite their strictly confidential nature.

At [102] and [106] of Byers, Fancourt J also stated that the balancing exercise should take into account not only the real risk of prosecution, but also the likely sanction in the event of prosecution.

All of this is not to say that the balance is so weighted in favour of disclosure that no real balancing needs to be done. Clearly, if a real risk of prosecution is shown, there does need to be balancing of that against the need for the documents to be disclosed, which is a question principally of their probative value. But from the authorities, once they are deemed to be relevant it is going to be difficult to persuade the Court to dispense with disclosure.

The Defendant also seems to be asserting that the risk of civil enforcement penalties or regulatory enforcement can also weigh in the balance. Such sanctions by a regulator could be fines or a remediation programme or, in an extreme case, removal of authorisation or licence. But one just needs to step back a little here. If, as I have just explained, even where there is a real risk of prosecution proved, the English Court will rarely be persuaded to dispense with disclosure, it must be even more unlikely that it would do so because of a risk of a much lesser penalty such as a form of civil enforcement. I agree with Mr Patel that this could only be contemplated in an exceptional case.

In Palladian Partners LP & Ors v The Republic of Argentina & Anor. [2022] EWHC 2059 (Comm), Foxton J was willing to proceed on the basis that the risk of breaching obligations owed by Argentina to the IMF could be relevant as to the Court’s discretion as to whether to order inspection. Clearly the IMF does not have the power to prosecute for breach of such a duty of confidence. Foxton J went on to say in [9] of his judgment, after referring to Bank Mellat, that the mere existence of legal obligations of confidentiality: “...will often carry little weight without some evidence before the court, that [sic] is a real risk of an adverse sanction following from production or inspection.” He went on to order disclosure.

Foxton J also raised a point in [19] that Mr Patel latched on to. That is that there could be an unfairness in the fact that the party seeking to withhold documents will have had those documents and been able to use them in proofing its witnesses. Mr Patel says that the same point applies in this case. That may be so, but I do not think that it is a significant factor in relation to the discretion and balancing exercise that I am being asked to perform.

So, returning to whether something less than a real risk of prosecution can be relied on in the balancing exercise, Mr Handyside said that it is not all about criminal prosecution and I do need to take into account the risk of some civil enforcement action being taken as well. He also said that I should pay a lot of respect to the US regulators’ strict requirements of confidentiality, which have an evident public purpose. He referred to National Crime Agency v Abacha [2016] EWCA Civ 760, as a case demonstrating that the Court can withhold disclosure of documents in the absence of a real risk of prosecution. Mr Patel had submitted that there was no case where disclosure had been refused in the absence of a real risk of prosecution, but Mr Handyside referred to [47] and [56] of Abacha and it is right to say that disclosure was refused in part based on confidentiality alone without risk of prosecution. In that case, there was no issue about risk of prosecution and the need to see the redacted parts was minimal, according to Gross LJ. In this case, the Defendant says that there is a real risk of prosecution. That is the way it puts its case, and that will need to be tested.

Mr Handyside said that the English Court should pay due deference to the decisions of the US and Singaporean regulators who, for good reasons similar to those of the FCA in this country, seek to protect the confidentiality of communications between them and their regulated entities. He referred to the public policy reasons, which are principally there to encourage regulated persons to show candour towards their regulators and enable an open and fruitful relationship to flourish between regulators and regulated. These policy considerations were spelled out in general terms in [31] to [34] of Real Estate Opportunities Limited v Aberdeen Asset Managers Jersey Limited [2007] EWCA Civ 197, in the context of the FCA rules of confidentiality. And Henshaw J in Al Wazzan, at [51], said that: “Comity is capable of playing a freestanding part in the judicial decision-making process and … does not arise for consideration solely when a real risk of prosecution has been shown.”

Despite saying that, however, and as Mr Patel pointed out, Henshaw J still went on to find that there was no real risk of prosecution by the Swiss authorities in that case. Comity actually came in at a later stage when the Judge decided to place confidentiality restrictions on the documents going to the Kuwaitis, as that was what the Swiss authorities were most concerned about. In other words, one does not just put aside the question of real risk of prosecution. Instead, the Court considers whether there is a real risk first; if there is a real risk, then the balancing exercise has to be performed. If there is not, then comity might dictate that certain restrictions be placed on the material that is being disclosed to ensure that confidentiality and strict foreign banking secrecy laws are being respected.

So where does that leave us? The Defendant’s primary case, as demonstrated by its expert evidence, is that there is a real risk of criminal prosecution and the balance tips in favour of preserving confidentiality because the documents are of marginal relevance at best. That is the case I will examine on the evidence in a moment. But, if the Defendant cannot show a real risk of criminal prosecution, it seems to me that the law is against it, insofar as it relies on some lesser form of regulatory action or even paying due deference on the grounds of comity to the public policy grounds for preserving confidentiality. That, it seems to me, can be adequately protected by restrictions on the disclosure in terms of the documents going into a confidentiality ring. It is akin to respecting civil obligations of confidence to third parties, and that might only happen where the benefit of disclosure is disproportionately small by comparison with the prejudice to be suffered by the third party. But the arguments about comity and the like and the risk of a civil sanction in the absence of a real risk of prosecution cannot, in the circumstances of this case, lead to the Court granting such an exceptional order allowing a party to withhold relevant documents from the litigation.

I now turn to the specific categories of documents that the application concerns and I will start with the CSI Documents which are the preserve of the FRB and NYDFS.

The Defendant has divided these into six sub-categories as follows:

Category 1: Reports of examinations of SCBNY. This category relates to reports prepared by the FRB and the NYDFS regarding the activities of SCBNY and accompanying correspondence from the FRB and NYDFS to SCBNY. Originally when the application was issued there were 19 documents in this category which contained CSI belonging to the FRB and 84 documents which contained CSI belonging to the NYDFS. After a further relevance review this was revised down to 8 documents for FRB and 36 documents belonging to NYDFS. The Defendant has also provided a unique documents figure which excludes duplicates and near duplicates and there is, according to Mr Lewis, now only four unique documents in this Category 1.

I should add that Mr Patel did not accept that it is appropriate to look only at the unique documents total because there may be something of relevance in the duplicates or near-duplicate documents, such as the fact that the particular document was sent to a PDMR. In terms of total numbers of documents, Mr Handyside says we are now only dealing with fewer than 250 unique documents. Mr Patel maintains that the relevant figure is closer to 1,600. To my mind, this does not really matter. It is not a numbers game. All these documents have been deemed relevant and otherwise disclosable, and that is so even after a further relevance review during the course of this application.

Category 2: These are responses to examination reports sent by SCBNY to the NYDFS and/or the FRB, including draft versions. Originally, there were 56 documents in this category which contained CSI belonging to the FRB and 78 documents belonging to the NYDFS. After the review, this is now zero belonging to FRB and 50 belonging to NYDFS, but only, according to Mr Lewis, three unique documents.

Category 3: These are reports prepared by the NYDFS-appointed independent compliance monitor (“Monitor”). Its role was to monitor compliance with the terms of the 2012 Settlements and the remediation programme there set out. That has specific reference to the issues in these proceedings. In broad terms, this category relates to five compliance reports prepared by the Monitor, as well as executive summaries, extracts, appendices and monthly progress reports provided to the NYDFS relating to the same. There were 593 documents containing CSI belonging to the NYDFS. This category is not applicable to the FRB. After review, this is now 304 documents, of which 30 are said to be unique.

Category 4: These are letters and other correspondence with the FRB, NYDFS or the Monitor (including correspondence with other regulators which the FRB, NYDFS or the Monitor are copied in with) as well as presentations given by SCBNY to the FRB, NYDFS or the Monitor. This also includes draft versions of these documents. There were 1,822 documents in this category containing CSI belonging to the FRB and 1,625 documents containing CSI belonging to the NYDFS. After review, this is now 617 documents for FRB and 688 in relation to NY DFS. Of this, there are a total of 159 unique documents.

Those Categories 1 to 4 are the ones that the FRB and NYDFS have maintained their objection to disclosure. The next two categories, they have consented now to their disclosure into a confidentiality ring, and I will look at the reasons for distinguishing the categories in a moment.

Category 5: These are internal documents of the Defendant that refer substantively to communications with the FRB, NYDFS or the Monitor. In broad terms, this category contains internal Standard Chartered Bank (“SCB”), SCBNY or SC documents (including but not limited to emails, minutes and materials prepared for various committees) that discuss reports or findings by the FRB, NYDFS or the Monitor. There were approximately 8,156 documents in this category containing CSI belonging to the FRB and 12,858 documents containing CSI belonging to the NYDFS. After the review, this became whittled down to 4,418 FRB documents and 8,010 NYDFS documents.

Category 6: These are Internal documents that contain high-level, cursory or passing references to CSI. There were approximately 812 documents in this category containing CSI belonging to the FRB and 1,427 documents containing CSI belonging to the NYDFS. Those numbers are now 247 for the FRB and 677 for NYDFS, and Categories 5 and 6 together comprise some 3,215 unique documents.

Mr Handyside was keen to emphasise that the significance of these CSI Documents must be assessed in the light of the fact that all of the Defendant’s internal documents will be disclosed, including those that refer to CSI by permission of the FRB and NYDFS. It is also important to note that CSI does not attach to pre-existing documents that do not contain CSI, such as documents prepared for the Defendant’s own business purposes, even if those documents were subsequently provided to the FRB or NYDFS in the course of investigations leading to the 2019 Settlements. Mr Handyside went on to submit that those internal documents were far more likely to show contemporaneous knowledge and understanding of the Defendant’s executives and PDMRs in relation to the Relevant Misconduct alleged by the Claimants. However, this does not get away from the fact that the Defendant and its lawyers have concluded that the documents that they are trying to withhold from disclosure are relevant documents.

In his original evidence in support of the application, Mr Lewis provided only the most high-level information about the content of the documents, for fear that he could breach US law by disclosing any more. In his reply evidence, following criticism from the Claimants, however, he, with the assistance of the Defendant’s counsel team, did provide some more explanation as to their alleged probative value and asserted that the Category 1 to 4 documents were only of tangential relevance, by which I think he meant that they only just passed the threshold test of relevance requiring them to be disclosed.

Mr Patel made some general points about relevance and, in particular, that it would be unfair to the Claimants for the Court to rely on and accept only one side’s view of the relevance of a category of documents. That necessarily involves some sort of value judgment. For example, Mr Lewis often referred to whether a particular category had a “sufficient nexus” to the Relevant Misconduct, when the concept of a nexus, or what Mr Lewis meant by a nexus, is not apparent. Mr Patel suggested that I should be slow to accept the Defendant’s lawyers’ team view as to how useful the documents might be to the Claimants and their legal team.

In the authorities I have been through on the legal principles in this area, one does not see much debate about relevance. ,But there is one reference to it in Bright J’s judgment in LLC EuroChem North-West-2 v Société Générale S.A. (unreported, 13 June 2025) at [5]. There, the judge referred to counsel’s submissions as to the minimal relevance of a category of documents. Bright J said: “That seems to me an invitation to the court to speculate. I am not content to do this. I cannot exclude the possibility that the messages exchanged may say something significant. The only way to settle that question is by reading them. For that, they must be produced”.

Mr Patel asked whether I could safely conclude that these categories of documents do not say or prove anything of significance. In a case like this, where relevance is highly contested, it does seem to me that it is potentially unfair to take one side’s word for it. In saying that, I do not suggest that Mr Lewis and his team did not come to a genuine view as to their relevance.

Categories 1 to 4 are basically communications between the Bank in New York and its regulators, whether in the form of reports or presentations or responses to examination reports. A large part of the case concerns the alleged misconduct of the Defendant that led to the 2019 Settlements and what people knew about that misconduct and what should have been said to the market at the time. One of the Claimants’ core contentions is that a PDMR knew about wide-scale sanctions breaches and/or the oversight and compliance issues which enabled those sanctions breaches before they were revealed to the market in the 2019 Settlements. Those Settlements were with the FRB and NYDFS, among others. They were the parties that investigated the misconduct, even though the alleged misconduct took place in the UAE or London, and those investigations took place over five years or more. Part of the misconduct in the 2019 Settlements was misleading the regulators in 2012 as part of the 2012 Settlements.

Mr Patel referred me to para 21.3 of the Claimant’s Re-Re-Amended Particulars of Claim, in which the following is alleged:

“Prior to the 2012 Settlements, senior anti-money laundering (‘AML’) and financial crime risk (‘FCR’) officers were aware that payment instructions from Iran could be transmitted in this way, and that the Bank had no effective mechanism to detect or prevent it (NYDFS CO/[15-16]). On a number of occasions between 2010 and 2012, experienced staff within Group Compliance expressed concrete concerns to senior managers that the Bank was at risk of infiltration by Iranian parties through the online banking platform. The senior managers included a senior member of the executive management who reported directly to the CEO (NYDFS CO/[18]).”

This was an express finding set out in the 2019 Settlements, which were written in very high-level terms. But the Claimants do not know any of the facts behind this, beyond certain named PDMRs that they have discovered through a Request for Further Information. Mr Patel’s core point was that it was very important to know who - more particularly if there were PDMRs involved - saw the communications to regulators who were investigating the matters that became the subject matter of the 2019 Settlements.

Mr Lewis’s explanations for the relevance of these categories were that they refer to relevant oversight and compliance issues at the Group level and, in the case of Category 3, also at the UAE branch. Mr Lewis referred to Project Larch, which was the name given to work undertaken to respond to the requests by the various US authorities, which resulted in the 2019 Settlements. The Claimants have a list of Project Larch insiders, and this shows that a number of PDMRs are on that list. So it will be important, Mr Patel suggested, to see what PDMRs knew about what was being said to their regulators and what was actually happening internally.

Back to Mr Lewis’s explanations, as to Categories 1 and 2, he confirmed that these are concerned with group level oversight and compliance issues which seems to me to be a fairly central part of the Claimants’ case. Mr Lewis labelled the categories as of tangential relevance because they do not refer specifically to controls applicable to the UAE or to the UK’s Wholesale Bank’s correspondent banking business, with a nexus to the Relevant Misconduct. Nevertheless, I do not think these categories can so easily be dismissed as of tangential relevance, without any real detail as to what they contain or who was involved or saw them.

Category 3 is the Monitor documents and arose as part of the remediation process from the 2012 Settlements onwards. This again concerns oversight and compliance. If Monitor was saying that there continued to be serious failings and this was brought to the attention of PDMRs, that would be highly relevant to the case. I am speculating, of course, without knowing what is in the documents, but I cannot assume, like Bright J in Euro Chem, that this is not what the documents might show.

Category 4 is described in some detail in Mr Lewis’s witness statement. In paragraphs 43.2 and 43.3 of his 21st witness statement, Mr Lewis said that emails or other documents referring to relevant reports prepared by Group internal audit, other relevant internal reports or documents and relevant correspondence with the FCA have been included in this category because they may evidence that an alleged PDMR was aware of those reports or documents. Mr Patel says that these documents therefore go to key PDMR knowledge issues and are likely to be highly relevant. Furthermore, these sorts of documents are important because they may explain the full meaning and significance of other documents.

Mr Handyside made an offer during the course of his oral submissions to the effect that even if the application succeeds in relation to this category 4, the Defendant will still endeavour to provide the information as to which alleged PDMRs saw the documents in question. However, that offer was not repeated in writing and I do not think it would be appropriate to take it into account in deciding how to exercise my discretion.

Category 4 also includes documents showing the US authorities requesting and being provided with documents about matters and individuals about whom findings and admissions were later made in the 2019 Settlements and evidence of the Defendant’s own investigations into such matters and individuals. The question of who knew about the matters which became the 2019 Settlements, and when, is at the heart of the case.

Mr Lewis and Mr Handyside therefore concluded that Categories 1 to 4 were of relatively limited probative value, whereas Categories 5 and 6, namely the internal documents, together with all of the non-CSI internal documents, are likely to be of much more probative value, as they will deal more directly with PDMR knowledge. With the limited information I have about the documents in question, I do not think I can safely assume that. While respecting the Defendant’s lawyers’ conclusions on this, I make no assumptions about the relative degrees of relevance that I should apply to the different categories of documents. The important point is that, after a number of relevance reviews, including recently during the course of this application, there are still a significant number of documents that have been deemed relevant to the case by the Defendant’s lawyers and that will go into the balancing exercise that I will have to perform.

Before turning to the risk of prosecution and/or other sanctions, I should deal with the letters from the FRB and the NYDFS.

The FRB wrote to the bank on 17 July 2025 and the NYDFS wrote on 21 July 2025 in very similar terms. Their letters were in response to requests made by the Bank in February and May 2025 to be granted permission to disclose the relevant CSI Documents in the same categories that I have just described in these proceedings. There was also clearly further correspondence between the Bank and/or its lawyers as further emails are referred to in the letters, but these have not been disclosed in this application.

The Bank sent examples of the documents in question for the regulators’ review and had also provided a draft confidentiality ring order, which limited the ring to what is called “external eyes only” (“EEO”) meaning that the documents could only be seen by external lawyers with no officer or representative of the receiving party or parties being allowed in the ring. As I have already said, both the FRB and NYDFS granted permission to disclose Categories 5 and 6, being internal documents referring to CSI, but specified that this had to go into an EEO confidentiality ring and they refused permission to disclose the other categories of documents.

In their letters the FRB and NYDFS confirmed that the Bank had correctly concluded that the documents were CSI and protected from disclosure under US law, CSI being considered to be the property of the respective regulator and subject to US bank examination privilege.

It seems that the FRB distinguished Categories 5 and 6 (which were called Categories 4 and 5 in its letter because the Monitor documents (Category 3) are not applicable to it) from the others on the basis that the Bank had represented to it that documents in those Categories were relevant to these proceedings. It concluded that these categories contained relevant documents and “… will provide the parties with information they need in connection with the U.K. Litigation.” The FRB could only have concluded that on the basis of what it had been told by the Bank. It went on to say that Categories 5 and 6: “… are far more likely to contain relevant information regarding SC plc’s and its officers’ and directors’ knowledge of events relating to the 2019 Settlements, the 2012 Settlements and other topics relevant to the U.K. Litigation than the [Category 1 to 4 documents].” I think Mr Handyside accepted that it was not really for the FRB to make any conclusions on the respective relevance of the documents to these proceedings. But this seems to have been the main basis of its distinction between the Categories to which it gave consent to disclosure and those that it refused.

In relation to those other Categories, the FRB referred to the fact that the Bank had not shown a substantial need to use or disclose those documents that “… outweighs the Board’s need to maintain confidentiality over these direct supervisory communications.” It referred to the FRB’s policies, which Mr Handyside also took me to in his reply submissions. It then set out the reasons why the documents have to remain confidential, principally to preserve candour in communications between regulators and regulated banks. It referred to the notice that appears on CSI Documents, reminding the reader that the document is strictly confidential and the property of the FRB. That notice also warned that unauthorised disclosure may subject the person disclosing to penalties under section 641 of the US Criminal Code. So, for the policy reasons behind the protection of confidentiality, the FRB concluded that, these Categories: “… have marginal if any relevance to the issues and matters in the U.K. Litigation, and that information adequate to the needs of your case are available to the parties from other sources, in particular, the [other categories that they had given permission for disclosure].”

It seems clear to me that it was a large part of the FRB’s reasoning in distinguishing between the Categories, that it had somehow concluded that the Category 5 and 6 documents were relevant to the proceedings, whereas Categories 1 to 4 were not. But if the CSI is so sacrosanct, I do not see why its decision should be based on that distinction; nor do I see that it is appropriate for the FRB – a non-party to the litigation – to come to any view as to the respective probative values of the different Categories of documents.

Mr Handyside submitted that these letters are highly significant as they demonstrate how seriously the FRB and the NYDFS treat this issue and make it more likely that they would take steps to prosecute the Bank if it defied their refusal to permit disclosure and complied with an English Court order to disclose. I point out, however, that the FRB and NYDFS do not state in their letters that if the Bank were to provide disclosure pursuant to an English Court order it would face the risk of prosecution in the US or that some other sort of sanction may be imposed. There is nothing in the letters suggesting that those regulators would take such a course of action. It would, to my mind, be extraordinary if they did.

So turning to the risk of prosecution, it will be recalled from my survey of the authorities that we are looking here for a real risk of prosecution, namely whether it is likely or not or maybe more probable than not. Both sides have provided some expert evidence in this respect, although in his reply submissions Mr Handyside seemed to suggest that this was not actually an expert issue at all but a factual issue. Nevertheless, the Defendant has put in three letters from Mr Nicholas Bourtin of Sullivan & Cromwell LLP and the Claimants have relied on a letter from Ms Laurel Loomis Rimon of Jenner & Block LLP. Ms Rimon has served both as a prosecutor and then federal financial regulator in the US for more than 20 years. She is clearly independent of the parties.

Mr Patel did question Mr Bourtin’s independence while accepting that, under the Commercial Court Guide, retained foreign lawyers can be used for the purpose of giving this sort of evidence. His argument was over the weight to be applied to the evidence. It does appear from Mr Bourtin’s CV that he has acted for the Bank since at least 2010 and in relation to the negotiations leading to both the 2012 and 2019 Settlements. It appears that some of the CSI Documents we are talking about involved Mr Bourtin and Sullivan & Cromwell were involved in the obtaining of the letters from FRB and NYDFS. I am concerned that none of this was flagged up by Mr Bourtin in his letters or by the Defendant. Mr Handyside said that this was all readily available information and nothing was being hidden. Furthermore, he said that Ms Rimon accepted Mr Bourtin’s analysis of the law and how CSI is restricted under US law. I accept that, but I think they should have been more upfront about his involvement. It does seem curious to me that the person being used as the expert on the consequences of disclosing CSI Documents was actually a party to perhaps quite a lot of the very documentation in question. It is possible that that will have affected Mr Bourtin’s objectivity in the assertions that he makes, which are not grounded in actual evidence, as to what the regulators are likely to do.

So, what does Mr Bourtin say about the risk or likelihood of prosecution? Both experts are agreed on the definition of CSI and both acknowledge that there have not been prosecutions of banks or bank personnel for unauthorised disclosure of CSI in cases like this. They part company as to the reasons why, Mr Bourtin saying that this is because it is highly unlikely that any bank would ignore the clear restrictions on disclosure of CSI. Ms Rimon, however, concludes that the prospect of prosecution is “remote” in a case like this.

However, Mr Bourtin is very half-hearted in his suggestion. In his second letter dated 12 June 2025, he said that if a bank defied a direct instruction not to disclose CSI: “...the relevant regulator would believe that it had no choice but to bring a civil enforcement action and perhaps to make a referral to a criminal enforcement agency.” He does not opine on what such an agency might do with such a referral. But it is pretty weak evidence of a risk of prosecution that it might “perhaps” refer it to a prosecuting authority when it had not done so previously.

Ms Rimon considered that even this was going too far and that the prospect of criminal prosecution in a case like this was “remote”. There is no clear federal or state statute rendering unauthorised disclosure of CSI a crime and the only offence that has been identified is s.641 that I referred to as appearing in the FRB letter, but which is essentially about the theft or conversion to own use of government property. Ms Rimon referred to two cases where employees of the federal regulator had misappropriated CSI for their own personal gain and the individuals were sentenced to probation. Those cases, as Mr Bourtin accepted, are far removed from the present. At para. 6 of her letter, Ms Rimon said:

“Each of these criminal cases involved a federal employee of the regulator itself and an egregious misappropriation of CSI by an insider to further their own personal pecuniary interests. I am aware of no criminal cases outside of this context. In sum, this landscape of limited enforcement activity is consistent with the fact that, in my experience, criminal prosecutors do not typically pursue criminal cases for regulatory record-keeping violations absent significant misconduct or sensitivity, particularly where specific criminal enforcement provision is not included in the law. I would expect the real prospect of criminal prosecution outside of such circumstances to be remote.”

Mr Bourtin did not directly contradict Ms Rimon’s evidence that the risk of prosecution is remote. In his reply letter dated 22 July 2025, he essentially repeated what he had said earlier that: “In the context of disclosure in a civil litigation such as this, a regulator would likely feel compelled to pursue a civil enforcement action (if not a referral to a criminal enforcement agency) if a bank, having engaged with its regulator as to which documents containing CSI may or may not be shared, then chose to defy its regulator’s instructions.” Again, this concentrates on civil enforcement action and only in parentheses adds something about a possible referral to a prosecuting authority.

I was surprised that there seemed to be no consideration by Mr Bourtin of the impact of the disclosure being made pursuant to an order of the English Court and whether this would make a difference as to how it was viewed by the regulators. Mr Handyside submitted that this was the premise that Mr Bourtin was working under, as one can see from the first part of the passage I have just quoted from: “In the context of disclosure in a civil litigation such as this…” However, I see no reference in the letter to the assumption that disclosure of the CSI would have been pursuant to an English Court order. To my mind, this is one of the most significant aspects of this application and the question as to whether any action would be taken by the US regulators, in particular, a criminal prosecution. In the same letter, Mr Bourtin seems to have shifted his position on the nature of the potential criminal offence committed under s.641 of the US Criminal Code. In his original letter, he had referred to the part of the statute that talks about converting property to their own use, but s.641 actually states that a person could be subject to a fine or imprisonment for anyone who:

“...embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted.”

Mr Bourtin emphasised the words “without authority”, “conveys” and “record”, but provided no evidence as to what those words mean under US law. From the examples of prosecutions, it seems fairly clear that the principal focus of the offence is on theft or misappropriation or conversion to own use. No example of where the part of the section dealing with conveying a record without authority is given. There is no analysis of how this would work. In particular, harking back to my theme, there is no consideration of the fact that disclosure would be being made under compulsion of an English Court order. Can it seriously be said that that would amount to theft or conversion or any other of the offences set out in this section? In my view, that is highly improbable.

Ms Rimon referred to an FRB consultation paper as to the working of their rules and, in answer to a query about unauthorised disclosure of CSI, the FRB responded that: “Unauthorised disclosures that lack criminal intent such as those made inadvertently would not be subject to prosecution under s.641. Where the requisite criminal intent to steal or knowingly convert the information may be present, criminal prosecution may be appropriate.” That confirms what appears obvious to me, namely that this criminal offence is wholly inappropriate to the current situation where the Bank has sought approval from its regulators, where that has been denied, and so it has made this Dispensation Application to the Court but, in the end, the Court might have compelled disclosure. In other words, where the Bank has acted wholly appropriately in the circumstances, it is difficult to see how the FRB or the NYDFS can properly criticise its approach, let alone contemplate taking criminal proceedings against it.

It seems to me that the Defendant has got nowhere near demonstrating that there is any real risk of a criminal prosecution.

As to civil enforcement, Mr Bourtin is convinced that regulators would have no choice but to bring civil enforcement action, I assume even if disclosure is pursuant to a Court order. He and Mr Handyside have asserted that the regulators will be bound to bring some sort of action to protect their strict confidentiality of CSI and the purposes behind it and to show that there could be no precedent for this and to make an example of the first bank to have defied their refusal to authorise in this way. Mr Patel criticised Mr Bourtin for not providing even anecdotal evidence from all his experience as a lawyer acting for financial institutions of a similar situation where enforcement action was being contemplated. I am afraid that Mr Bourtin’s mere assertion to this effect is weak in itself and also perhaps tainted by his lack of independence from the actual documents and issues in question.

In his reply submissions, Mr Handyside took me to the Code of Federal Regulations and, in particular, s.261.23 under the heading “Board Policy”. This had been exhibited to Mr Bourtin’s original letter showing FRB’s attitude towards CSI and its policy of protecting confidentiality at all costs. It also sets out how the FRB would deal with any request to disclose CSI in civil litigation, although it is principally dealing with US civil litigation of all sorts, where CSI is protected by privilege. Ms Rimon had referred to the requirements of a written request to the FRB that has to contain requisite information including the relevance of the documents to the litigation. The Policy does, however, indicate that requests to disclose might be granted so long as sufficient protections, such as a confidentiality ring, are in place. The point of reference to this policy, as I understand it, was to emphasise how strictly the FRB regards CSI and how protected it is under US law, which would explain why there had not been any prosecutions. However, that lack of prosecution could equally be because they do not prosecute in this situation where a foreign Court order requires disclosure.

Ms Rimon said that it was not credible to believe that financial institutions have been perfectly compliant with these complex and sometimes confusing CSI rules. She concluded that the reason for an absence of comparable cases is more likely to result from the fact that the decision to take enforcement action is “highly discretionary”. Two examples were given by Ms Rimon, the most relevant one concerning Industrial Commercial Bank of China Ltd (“ICBC”) which both sides referred to. This involved the unauthorised disclosure of CSI pursuant to a request from a foreign regulator. The disclosures were made before any approval from the FRB and the NYDFS had been given. NYDFS had particular concerns about anti-money laundering failures by ICBC and it is in relation to that misconduct that the principal part of the $30 million fine seems to have been related. It appears that $2.4 million of that fine may have been related to CSI violations. While it is true to say that this was a civil enforcement action for breaching CSI rules, it does seem to me to be quite far removed from the situation here and the prospect of such action being taken if the Defendant complies with an English Court order.

Paragraph 11 of Ms Rimon’s letter is in the following terms:

“Further, a review of published supervisory priorities of both the FRB and NYDFS over the last three years does not indicate that enforcement of CSI handling and confidentiality is a regulatory enforcement priority. In any event, the decision of whether to bring in enforcement action of any kind is highly discretionary and would likely include consideration of the disclosing person’s reasons for disclosure (including whether disclosure was ordered by a court of competent jurisdiction) whether efforts were made to obtain consent to the disclosure and the sensitivity and real risk of harm to other parties (including to the supervisory agency’s ability to adequately undertake its oversight or the bank’s continued ability to operate in a safe and sound manner) by disclosure. In determining the sensitivity and risks of harm, I would consider whether the documents relate to an ongoing versus closed investigation, and whether the issues addressed in the documents have already been the subject of public sanctions to be key factors.”