When Does Confidential Information Fall To Be Disclosed In Litigation? A Timely Reminder From The England & Wales High Court

When conducting complex litigation, important issues can arise during the conduct of the case, in addition to the issues for trial. Disclosure, specifically the confidentiality of potentially discloseable documents, can raise problems for any financial institution that finds itself embroiled in litigation, due to the sheer volume of data present in modern litigation (generated from even the most simple financial transactions). Fortunately, the recent judgment of Mr Justice Hildyard in SL Claimants and MLB Claimants v Tesco PLC [2019] EWHC 3315 (Ch) has served to remind litigants of a number of points in relation to disclosure on complex disputes, especially in light of the overriding objective.

Following the Tesco accounting scandal of 2014, two actions against the multi-billion pound grocer were launched by the Claimants in FL-2017-000001 (the "SL Claimants") and in FL-2016-000019. The SL Claimants, who made their claims under section 90A and Schedule 10A of the Financial Services and Markets Act ("FSMA"), are seeking to recover the substantial losses they claim to have suffered on their investments in Tesco, which they allege were made in reliance on the misleading financial information that Tesco published.

In the latest of four Case Management Conferences held in these proceedings1, the Court ruled on a number of issues relating to disclosure. While the judgment may not raise any new points of law, it does offer some practical guidance that can be implemented, including in relation to:

the interaction between a loss in confidentiality and the loss of privilege over information contained in a document referred to in open court; the continued importance of proportional disclosure under the new Disclosure Pilot (set out in Practice Direction 51U of the Civil Procedure Rules), even for wide-ranging disclosure under Model E of the Disclosure Pilot; and the tension between the right to receive proper disclosure in a way that allows a party to test the other side's case against the legitimate commercial desire to protect highly confidential information, processes and materials. The judgment also briefly highlighted the importance of making applications for letters of request (which are issued by the English Court to Courts in other jurisdictions with a view to obtaining documents from those jurisdictions) in a timely manner. Whilst this update does not deal with letters of request, parties making such requests should always be mindful of the practical implications that obtaining information from a foreign jurisdiction may have on the timetable and date for trial. For further guidance on letters of request and issues of "relevance" please also see...