In PJSC National Bank Trust and another v Mints and others, the court granted an application to release the claimants (C) from the standard cross-undertaking (see PD 25A) not to use, without the court’s permission, any information obtained as a result of a worldwide freezing order (WFO) for any civil or criminal proceedings other than that claim.
In his judgment, Bryan J found that by virtue of the defendants’ asset disclosure, produced pursuant to the WFO, being referred to in open court at the return date hearing (which followed the without notice hearing granting the WFO), and read by the judge when preparing his judgment, those documents were now in the public domain and had lost their confidential status despite C giving the standard cross-undertaking not to use them for any other purpose.
In essence, Bryan J applied the collateral use release contained in CPR 31.22(1) to the express cross-undertaking given in a WFO. Reference was also made to the fact that at the return date hearing, the defendants (D) had not applied for the court either to sit in private or for an order restricting the use of disclosed documents under CPR 31.22(2)). This was subsequently affirmed by Flaux LJ when considering D’s application for permission to appeal.
It is commonly the case that the asset disclosure provided under compulsion of a WFO is considered by the court on the return date. The implications of this case for practitioners is that now, in every case unless steps are taken to preserve confidentiality, the asset disclosure will be put into the public domain by virtue of it being placed before the judge at the return date hearing. In our experience, it has not been usual practice for parties to seek such protective measures and have perhaps taken false comfort from the claimant’s undertakings on collateral use.
This decision renders the standard cross-undertaking given in a WFO in respect of non-use of asset information effectively nugatory, rather than representing a meaningful default position for the duration of the proceedings. Moreover, it means that any cross-undertaking given (in the same form as that given in the WFO) as part of the order made after the return date will be inherently misleading since the information which it ostensibly protects will in fact no longer be safeguarded; it will be available for any other creditor or interested party to exploit.
To avoid the risk of confidential asset disclosure falling into the public domain and losing its confidential status at the return date or any subsequent hearing at which it is referred to, we consider that the following routes can be taken.
At the return date, you could ask the court to make an order such as “Pursuant to CPR 31.22(2) and/or the court’s inherent jurisdiction, any document obtained as a result of the [WFO] and read to or by the court, or referred to, at or in relation to a hearing, whether that hearing takes place in public or private, will be treated as subject to the rule in CPR 31.22(1) or CPR 32.12(1), and subject to none of the exceptions to those rules, unless otherwise ordered.”
If the court is not willing to make such an order, at any hearing (including the return date) that confidential information is referred to, you could ask the court:
- To hold the hearing in private pursuant to CPR 39.2(3)(a). In applications for permission to use disclosed documents, the court will generally sit in private for any part of the hearing where the content of the disclosed documents is referred to (White Book 2020: Civil Procedure, Volume 1 at paragraph 31.22.1. We note, however, that in the interests of open justice, Bryan J was reluctant to do so in this case.
- To make an order that “Pursuant to CPR 31.22(2) and/or the court’s inherent jurisdiction, any document obtained as a result of the [WFO] and read to or by the court, or referred to, at or in relation to this hearing, whether that hearing takes place in public or private, will be treated as subject to the rule in CPR 31.22(1) or CPR 32.12(1), and subject to none of the exceptions to those rules, unless otherwise ordered.” This type of order can also be sought retrospectively.
Bryan J referred to both routes in his judgment at paragraph 145.