[2025] EWHC 2243 (KB)

The Claimants, the First Defendant Glencore Plc (“Glencore”) and the Second Defendant Mr Ivan Glasenberg (“Mr Glasenberg”) appear before the Court in these ongoing actions before the English Court (the “English Proceedings”) on the hearing of applications brought by Glencore and Mr Glasenberg respectively seeking orders that they are not required to provide disclosure of certain documents obtained from foreign investigators which would otherwise be disclosable in accordance with existing disclosure orders of this Court.

In this regard, paragraph 5 of the second Case Management Conference Order (“CMC2 Order”) in the English Proceedings required the Defendants to make (by a specified date) “any application they intend to make, based on alleged foreign restrictions on disclosure…” whereby they sought to vary their existing disclosure obligations in the English Proceedings.

On 28 February 2025, and further to paragraph 5 of the CMC2 Order, Glencore and Mr Glasenberg each issued application notices, respectively the “Glencore Disclosure Restriction Application” and the “Glasenberg Disclosure Restriction Application” (together, the “Disclosure Restriction Applications”).

The Glencore application notice and the Glasenberg application notice also made other applications, but those have already been dealt with separately, and are not addressed in this judgment.

The relevant disclosure obligations are, in summary:-

Since the issue of the Glencore Disclosure Restriction Application, and as appears below, the only remaining aspect of the Glencore Disclosure Restriction Application that remains live (as opposed to aspects that it is agreed can now be addressed in the draft Order before the Court) relate to three documents that were provided from the criminal case file by the DPPO to Glencore International AG (“GIAG”). Following a request on behalf of Glencore to the DPPO seeking its consent to the disclosure of these documents in the English Proceedings, the DPPO did not give its consent.

The Glasenberg Disclosure Restriction Application (brought by Mr Glasenberg, a former director and partial owner of Glencore) concerns Mr Glasenberg’s application to withhold inspection of one document, namely a Request for Mutual Legal Assistance (the “MLAT Request”) from the DPPO and FIOD to the Swiss OAG dated 3 November 2023. Again, following a request on behalf of Mr Glasenberg to the DPPO seeking its consent to the disclosure of the MLAT Request in the English Proceedings, the DPPO did not give its consent.

The Glencore Disclosure Restriction Application had also sought relief in relation to documents provided by the authorities in Canada and Switzerland, in the course of the investigations into certain Glencore Group companies in those jurisdictions. However, it is now common ground that:-

As for the three documents provided by the Dutch authorities, Glencore says that it has been placed in an invidious position. Taking steps to provide disclosure under the existing order for early disclosure in the English Proceedings, in relation to these documents could (it is said) put them in breach of Dutch law and at risk of prosecution and sanction in the Netherlands, but withholding disclosure (absent relief from this Court as sought in the Glencore Disclosure Restriction Application) would put them in breach of existing orders as to early disclosure in the English Proceedings and so at risk of committal for contempt and sequestration of assets. Mr Glasenberg makes a similar submission in relation to his position and the MLAT Request.

The relevant principles of English law on applications such as the present are well established, and were largely common ground. I address them in detail in Section C below. They were set out in Bank Mellat v HM Treasury [2019] EWCA Civ 449 (“Bank Mellat”) from which a “three-stage” approach can be discerned: stage 1, would or might compliance with the order entail a breach of foreign criminal law; stage 2, if so is there a real (that is actual) risk of prosecution in the foreign state; and (if reached) stage 3, a balancing exercise is conducted weighing the risk of prosecution in the foreign state with the importance of the documents of which inspection is ordered to the fair disposal of the English Proceedings.

For their part, Glencore and Mr Glasenberg submit that disclosure of the respective documents in the English Proceedings would amount to an offence in Dutch criminal law (under section 184(1) of the Dutch Criminal Code (“DCC”)), with Mr Glasenberg submitting (in relation to the MLAT Request) that it would also be an offence under section 272 of the DCC (stage 1). They each submit that this would give rise to a real risk of prosecution in the Dutch courts by the Dutch prosecuting authorities (stage 2) and, submit that at stage 3, on the balancing exercise, the risk of prosecution in the Netherlands outweighs the value of the documents, which they submit are likely to be of limited relevance and not necessary for the fair disposal of the English Proceedings.

For its part, the Claimants oppose the Disclosure Restriction Applications. They submit that the disclosure of the documents would not amount to an offence under section 184(1) of the DCC or (in relation to Mr Glasenberg) section 272 of the DCC (stage 1), that in any event there is no real risk of prosecution (stage 2), and if stage 3 is reached, when the Court does the balancing exercise between any risk of prosecution in the Netherlands (which the Claimants submit is less than real) and the importance of the documents of which inspection is ordered for the fair disposal of these proceedings (which the Claimants submit is high), the balance comes down overwhelmingly in favour of refusing the Disclosure Restriction Applications.