CL-2024-000450 - [2025] EWHC 2968 (Comm)

The claimants have abused the process of the Court by engaging private investigators to obtain sensitive information from their opponent’s litigation solicitor through the use of unethical methods and practices. This is so irrespective of the precise evidential status of any part of the illicit information, including engagement of the iniquity principle.

I am not persuaded that it would be appropriate and proportionate to strike out (or stay) this action in light of the claimants’ abusive conduct.

I strike out the summary judgment application of my own motion and as a matter of inherent jurisdiction. Alternatively, if not struck out, I would decline to enter summary judgment or grant a conditional order as a matter of discretion even if the conditions for doing so were otherwise met.

It goes without saying that the claimants are not at liberty to bring a new summary judgment application absent material change of circumstances and subject to anything said or directed by any other judge including the one allocated for the Information Review Hearing.

The inadequate time estimate for the present hearing does not enable me to undertake the granular analysis of ascertaining the evidential status of each distinct ‘topic’ or ‘unit’ of illicit information. This will need to be undertaken at the Information Review Hearing.

I adjourn to the Information Review Hearing, or any hearing consequential upon it, the balance of the cross-applications which seek (a) directions as to the inadmissibility of or use that can be made of the illicit information, (b) discharge of the WFOs or (c) any application, if properly made, for injunctive relief restraining the claimants’ use of the illicit information or their illicit knowledge.

My chosen response to the claimants’ abuse of process does not preclude a future judge from granting any remedy or imposing any sanction which they consider appropriate and proportionate in light of their own evaluation as to the impact of the claimants’ illicit knowledge (if any) upon the fair disposal of these proceedings or risk of an unfair trial.

Subject to hearing full argument, if not agreed in the meantime, I foresee making an order that the claimants pay the costs of this hearing on the indemnity basis. An aggravating factor in this context is the claimants’ creation and protection of an evidential blackhole around the decision to target X as a source of sensitive intelligence resulting in their own illicit knowledge: see paragraph 19 to 25 above.

The interplay between competing policies deserves appellate attention. Those policies underpin (a) the protection of the Court’s process against abuse or circumvention of litigation norms and values, (b) public confidence in the administration of justice generally and more specifically the work and output of the civil justice system, (c) the sanctity of legal professional privilege and its importance to the Rule of Law, (d) the prevention of serious wrongdoing, involving fraud or dishonesty at scale, and ensuring proper accountability for such wrongdoers, and (e) public confidence in the legal profession generally and especially when advising and representing those accused of such serious wrongdoing in the context of international fraud cases.

In indicating my readiness to give permission in this way, I am not acknowledging that it would be legitimate to challenge my key findings as to the claimants’ conduct or its characterisation. They are essentially questions of fact with elements of evaluation. My concern, if anything, is that I may have been too lenient on the claimants in choice of response.

It is a matter for the Court of Appeal, if its jurisdiction is engaged, as to whether it wishes to hear any appeal or cross-appeal prior to the outcome of the Information Review Hearing and determination of the balance of the cross-applications.