Loreley Financing (Jersey) No. 30 Limited v Credit Suisse Securities (Europe) Limited & Ors.
[2023] EWHC 548 (Comm)
Barclays Bank PLC v Citibank NA
16 January 2024
[2024] EWHC 53 (Ch)
High Court
A bank (Barclays) thinks other people conspired to steal its money and wants documents from another bank (Citi) to prove it. The judge agreed to give Barclays some of the documents but not all of them, because the judge wanted to be fair and make sure Barclays only got relevant information.
Key Facts
- •Barclays Bank PLC brought two claims against various individuals and companies related to the alleged unlawful transfer of approximately £13.7 million.
- •The funds were transferred through numerous CHAPS payments below the £50,000 threshold requiring further approval.
- •Fresh Thinking Group Limited (FTG) and Inc Travel Group Limited (ITG), involved in the transfers, are in compulsory liquidation.
- •Barclays alleges a conspiracy to cause damage by unlawful means involving several defendants.
- •Three corporate restructurings are central to Barclays' claims, with the third restructuring involving Global Investment Management Holdings Inc (GIMH).
- •Barclays seeks non-party disclosure orders against Citibank, N.A. (Citi) for documents related to GIMH's involvement in the third restructuring.
- •GIMH objected to the non-party disclosure orders, leading to a hearing before the court.
- •The court considered evidence from both Barclays and GIMH, including witness statements and documents.
Legal Principles
Non-party disclosure under CPR 31.17 requires the documents to be likely to support the applicant's case or adversely affect another party's case, and disclosure must be necessary for a fair disposal or cost savings.
CPR 31.17
The test for 'likely' in CPR 31.17(3)(a) is lower than 'more probable than not'.
Three Rivers DC v Bank of England (No 4) [2002] EWCA Civ 1182
The court must be satisfied that all documents sought fall within CPR 31.17(3), and that the documents exist.
Re Howglen Ltd [2001] 1 All ER 376
Necessity for non-party disclosure is determined on a case-by-case basis.
Sarayiah v Royal and Sun Alliance [2018] EWHC 3437 (Ch)
Non-party disclosure is exceptional and should be exercised cautiously.
Frankson v Home Office [2003] EWCA Civ 655
The court needs sufficient information to evaluate the necessity of disclosure.
Commissioner of Police of the Metropolis v Times Newspapers Ltd [2011] EWHC 1566 (QB)
Even if relevance and necessity are met, the court retains discretion on non-party disclosure.
Mitchell v News Group Newspapers Ltd [2014] EWHC 1885 (QB)
Outcomes
Granted non-party disclosure orders for categories (a), (b), (c), and (d) of documents sought by Barclays from Citi, subject to conditions.
The court found the documents likely to support Barclays' case and necessary for fair disposal, despite GIMH's objections and claims of fishing expedition and privilege.
Rejected non-party disclosure for category (e) documents.
The court deemed this category too broad and lacked sufficient evidence of their existence.
Limited disclosure of bank statements (category (c)) to those related to the single account identified in Ms Kerkhove's exhibit.
Insufficient evidence to establish the existence of additional GIMH accounts with Citi.
Required Citi to disclose privileged documents (category (b)) but allowed GIMH to apply for an order preventing inspection.
Protecting privilege while still allowing for relevant disclosure.
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