Jayesh Shah v HSBC Private Bank (UK) Ltd

Posted on 13/10/2011 · Posted in Expert Witness, Financial Litigation

Court of Appeal

Ability to keep employees identity confidential in court case.

The Claimants sued the Defendant for damages in excess of £300million. They alleged that they had suffered the loss because the Defendant had delayed in executing four transactions, though the Defendant contended that it had been entitled to delay compliance with the Claimants’ instructions because it suspected criminal activity and was obliged to report its suspicions to the Serious Organised Crime Agency.

Summary judgment was given in favour of the Defendant and this was reaffirmed in the Court of Appeal. All of the Claimants’ positive claims were rejected but the Defendant still had to prove that it had actually held the relevant suspicions. In proving its suspicions, the Defendant disclosed the identity of the money laundering officer but chose to redact the names of other employees who had been involved. The question for the Court of Appeal was whether or not such names should have been disclosed.

The Court of Appeal looked closely at the wording of CPR Pt 31.6. Standard disclosure required disclosure of documents which the party intended to rely upon, which adversely affect the party’s or another party’s case, which support another party’s case, or which the party is required to disclose under a practice direction. The Court of Appeal also identified comments made on redaction. Information could be redacted from documents but that redaction must not cover information which had to be disclosed under CPR Pt 31.6 or destroy the sense or make misleading information which had to be disclosed.

The Defendant has chosen to not reveal employee names by redacting the names from disclosed documents. Under CPR Pt 31.6 there was no requirement for disclosure of the names. The substance of the Claimants’ case had been rejected anyway, and the Defendant had disclosed the information adverse to its case. If the Defendant had decided not to rely on the unnamed individuals that was its strategic choice.

Link: Shah v HSBC Bank [2011] EWCA Civ 1154

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