Parties who have engaged inquiry agents or investigators often resist disclosure of the names of their sources. Rio Tinto PLC v Vale SA makes it clear that whether or not the court orders disclosure is not a matter of applying a hard and fast rule, but depends on a number of factors.
These include:
- The importance and degree of relevance of the confidential information being sought (described by Andrews J in Rio Tinto as “one of the most critical factors in the complex balancing exercise”).
- Cogent and detailed evidence being provided about the risks to which a source might be exposed were he to be identified. The greater the degree of relevance, the greater the particularity that the court might require.
- What, if any, undertakings of confidentiality had been given to the sources, and their basis. It was recognised that the court had power to order disclosure, notwithstanding contractual or non-contractual assurances shown by the evidence to have been given to sources, and frequently did so where the information was of central importance to the issues in the case, for example in the detection of fraud. However, other principles were also in play here. Some of the sources were said to be journalists, and the judge also acknowledged that the English courts respect the importance of keeping journalists’ sources confidential.
- Of lesser weight, though not tossed off the scales, was the complaint by the corporate investigators themselves that enforced disclosure might have an adverse impact on their own businesses and business reputations.
- If the court decided to order disclosure, notwithstanding that it would involve a breach of the duty of confidence owed to the source by the corporate investigator, it would then, but only then, consider whether the information or documents should be disclosed to a limited class of people.
In the particular case, however, the judge decided that the names of the sources constituted information of only peripheral relevance to the underlying litigation (which was taking place in the USA).
A second strand of the case concerned an admission by one of the corporate investigators, BRG, that it had, at Rio Tinto’s behest, destroyed potentially relevant documents. BRG’s company secretary (its deponent) was ordered to submit to an examination about the searches which had been made for missing documents, and his explanation for the inability of BRG to produce them.
Although this case is set against the background of a Hague Evidence Convention letter of request from the courts of New York, the principles set out are not confined to request cases, but apply generally, although the oral examination of the BRG company secretary might be said to be an unusual course of action in the UK that might not have been adopted had it not been a request case. In deciding that the names of the sources were only of peripheral relevance, the judge appears to have reached her own view about the scope of the main issues in the litigation.
