Robert Tchenguiz has failed in a renewed a bid to use 22 documents, disclosed during his settled claim against the Serious Fraud Office, in separate litigation in Guernsey.
The Court of Appeal backed Eder J’s ruling refusing Tchenguiz permission for the 22 documents to be provided to counsel in Guernsey to be admitted in evidence in the ongoing case of Investec and another v Glenalla Properties Ltd and others.
In an earlier decision, Jackson LJ said that the Guernsey proceedings relate to certain arrangements described as “intercompany loans”. He said that a trial took place in June 2012, and in December 2013 Lieutenant Bailiff Sir John Chadwick held that the intercompany loans which Investec Trust (Guernsey) Ltd (ITGL) had carried out gave rise to valid loans between ITGL and two other entities referred to as Glenalla and Thorson in the sums of approximately £62.7m and £80.6m respectively; that there was no loan agreed between ITGL and another entity referred to as Oscatello, but instead Oscatello had a valid claim in restitution against ITGL in the sum of approximate £39.4m; that ITGL was personally liable to these companies; and that ITGL was nevertheless entitled to be indemnified from the Tchenguiz Discretionary Trust (TDT) assets for these liabilities.
Appeals have been brought by both ITGL and by Rawlinson & Hunter S.A., trustee of the TDT, and Tchenguiz had claimed that these 22 documents were of “critical importance” to the case and could lead to the Lieutenant Bailiff’s decision being reversed. He denied that there was a public interest in protecting the documents.
However, dismissing the appeal, Jackson LJ said: “The documents in question arose from liaison between the SFO and the Guernsey authorities concerning an investigation into suspected fraud and related offences. The SFO disclosed those documents in the course of civil litigation in London between the appellant and the SFO. Both the SFO as respondent to this appeal and HM Procureur for Guernsey as first intervening party oppose the use of the 22 documents unredacted in the Guernsey proceedings.
“I have come to the conclusion that the judge correctly weighed the conflicting public interests which were in play and reached an appropriate decision.”
He said that the liaison between the SFO and foreign authorities is “inherently confidential”, and the manner in which they co-operate should not ordinarily go into the public domain, except in so far as they are relevant to any criminal prosecutions. He said there is a “high public interest” in maintaining the co-operation of foreign states in the investigation of offences with an overseas dimension, and that in this case the Guernsey authorities were strongly opposed to the application made.
He also found that the documents did not have the high degree of importance to the Guernsey proceedings claimed by Lord Goldsmith on behalf of Tchenguiz.
Tchenguiz and ors v The Director of the Serious Fraud Office Court of Appeal (Jackson, Sharp and Vos LJJ) 31 October 2014
Catherine Newman QC and John Robb (instructed by Stephenson Harwood) for the claimants
Pushpinder Saini QC and James Segan (instructed by Slaughter & May) for the defendant
Khawar Qureshi QC (instructed by Laytons LLP) for the intervener
