CL-2022-000456 - [2025] EWHC 1614 (Comm)

The documents at lines 9 to 13 to Tecnimont’s schedule related to proceedings commenced by Mr and Mrs Melnichenko before the Court of Justice of the European Union (“the CJEU documents”).

Confidentiality was first asserted by the Claimants in relation to the CJEU documents at a hearing before Jacobs J on 23 May 2025. In relation to these documents, but not in relation to any other documents in Tecnimont’s schedule, the Claimants maintained one of the arguments originally advanced in relation to the IFD6 documents, at the hearing before Dias J: that there were EU law restrictions.

I have noted that, before Dias J and in the context of the IFD6 documents, this argument was characterised by ING as “nebulous”. By the time of the hearing before Jacobs J, that could no longer be said. The Claimant’s position as to EU law was explained in a witness statement concerning advice as to EU law, provided by a law firm in Brussels. The Claimants’ EU law evidence was that documents submitted to the Court of Justice, such as pleadings, cannot be disclosed or used without the consent of the party that produced them.

Jacobs J expressed some doubt about this but, as I have already noted, did not decide the point. This left it open to any party to challenge the Claimant’s assertion of confidentiality. I would expect any party wishing to do this to have adduced its own evidence as to EU law, to counter the Claimants’ evidence (rather than merely relying on submissions, as happened did before Jacobs J).

In the event, Tecnimont did not adduce any evidence on the point, either before Jacobs J or before me. Nor, indeed, did they repeat the submissions made on the EU law to Jacobs J. The Claimants’ evidence is, accordingly, uncontradicted by any opposing evidence from an expert or practitioner in what is, now, a foreign system of law. In these circumstances I accept the Claimants’ case that disclosure or use of the CJEU documents would be contrary to EU law. They are, accordingly, impressed by confidentiality, and must remain subject to the confidentiality club.