Omers Administration Corporation & Ors v Tesco Plc [2019] EWHC 109 (Ch) (25 January 2019)

Omers Administration Corporation & Ors v Tesco Plc [2019] EWHC 109 (Ch) (25 January 2019)

The court held that, although the SFO documents were obtained under compulsion and subject to confidentiality, the overriding interest of justice and the right to a fair trial require their disclosure to the claimants. Confidentiality and privacy interests, both public and private, are relevant but not determinative; the court must balance these against the necessity for disclosure. In this case, the documents are highly relevant and necessary for the fair disposition of the proceedings. Appropriate confidentiality restrictions (such as confidentiality clubs and redactions) can mitigate risks to third parties, but do not justify withholding disclosure.

Citation
[2019] EWHC 109 (Ch)
Parties
Claimant: OMERS Administration Corporation & Ors; Claimant: Manning & Napier Fund, Inc.; Claimant: Exeter Trust Company; Defendant: Tesco PLC; Intervener: Serious Fraud Office
Jurisdiction
England and Wales
Judgment Date
25 January 2019
Procedural Posture
Civil / Interlocutory Judgment on Disclosure of Documents
Outcome
Application for disclosure granted, subject to confidentiality restrictions.
Legal Topics
Disclosure of Documents, Confidentiality Obligations, Section 2 Criminal Justice Act 1987, Deferred Prosecution Agreements, Article 8 ECHR, Section 90 a Financial Services and Markets Act 2000
Civil Procedure Financial Services Law Confidentiality Law Disclosure of Documents Confidentiality Obligations Section 2 Criminal Justice Act 1987 Deferred Prosecution Agreements Article 8 ECHR +1 more

Case Brief

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Parties

OMERS Administration Corporation & Ors

Claimant

Manning & Napier Fund, Inc.

Claimant

Exeter Trust Company

Claimant

Tesco PLC

Defendant

Serious Fraud Office

Intervener

Procedural Posture

Civil / Interlocutory Judgment on Disclosure of Documents

Legal Issues

  1. 1 Whether documents obtained by the SFO under compulsion and provided to Tesco PLC for DPA negotiations should be disclosed to claimants in civil proceedings
  2. 2 What restrictions, if any, should be imposed on the use and retention of such documents
  3. 3 How to balance public and private confidentiality interests against the right to a fair trial

Ratio Decidendi

The court held that, although the SFO documents were obtained under compulsion and subject to confidentiality, the overriding interest of justice and the right to a fair trial require their disclosure to the claimants. Confidentiality and privacy interests, both public and private, are relevant but not determinative; the court must balance these against the necessity for disclosure. In this case, the documents are highly relevant and necessary for the fair disposition of the proceedings. Appropriate confidentiality restrictions (such as confidentiality clubs and redactions) can mitigate risks to third parties, but do not justify withholding disclosure.

Court Disposition

Application for disclosure granted, subject to confidentiality restrictions.

Orders

  • Tesco PLC to disclose the SFO documents to the claimants' external lawyers within an Enhanced Confidentiality Club, subject to strict confidentiality terms and redactions for irrelevance or privilege.
  • Third parties' objections adjudicated; disclosure ordered except where specific, substantiated privacy/confidentiality concerns justify further restriction.