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	England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Marlwood Commercial Incorporated v Kozeny & Ors [2004] EWHC 189 (Comm) (09 February 2004) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2004/189.html Cite as: [2004] EWHC 189 (Comm)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION Royal Courts of Justice
COMMERCIAL COURT Strand, London, WC2A 2LL

		9th February 2004

Mr. Justice Moore-Bick :

1. Before the court are two applications relating to certain documents that have been disclosed by the defendants in these proceedings. They relate to notices issued by the Serious Fraud Office to the claimants' solicitor, Mr. Charles Lloyd of Macfarlanes, and the defendants' solicitor, Ms Catherine Bailey of S J Berwin, to produce copies of the documents disclosed by the first, third and fourth defendants in the actions. By his application Mr. Lloyd asks the court for permission pursuant to rule 31.22(1)(b) of the Civil Procedure Rules to make the documents available to the S.F.O. pursuant to that notice. By their application the first, third and fourth defendants seek an order directing that neither Mr. Lloyd nor Ms Bailey is to comply with the notices issued to them.
2. The actions have their origins in the privatisation by the Republic of Azerbaijan of its state-owned oil and gas industry. In order to distribute the benefits of privatisation to the population at large the government issued vouchers to its own nationals entitling them to bid for shares in the state companies being offered for sale. The vouchers were freely transferable and it was therefore open to individuals and organisations to amass the ability to acquire substantial shareholdings in the companies in question. Foreign nationals who wished to buy vouchers from Azeris were required to purchase options from the State Property Committee entitling them to purchase a corresponding number of vouchers in the market.
3. The claimants are all companies incorporated in the British Virgin Islands which act as vehicles for various investment funds based in New York. The third defendant is a company said to be controlled by Mr. Kozeny; the fourth defendant is a company said to be controlled by Mr. Kozeny and the second defendant, Mr. Towers-Clark. In 1998 the claimants entered into agreements with the third and fourth defendants to acquire certain options and vouchers with a view to amassing substantial holdings in companies formed by the break up of the State Oil Company which was then subject to the privatisation programme. Pursuant to that agreement the claimants paid the defendants sums totalling about US$180 million for the purposes of purchasing options and vouchers.
4. The claimants allege that they were induced to enter into the agreement and to transfer the funds to the defendants by various fraudulent statements. They say that some of the funds remitted to the defendants have been misappropriated and that, insofar as funds were used for the purchase of options and vouchers, the vouchers are worthless. They say that as a result they have lost the whole of their investment.
5. The agreement between the claimants and the defendants was expressed to be governed by English law. On 17^th December 1999 Marlwood Commercial Inc obtained a worldwide freezing order against Mr. Kozeny and started proceedings against him and the other defendants in this country. On 17^th February 2000 Omega Group Holdings Ltd and the other claimants in action 2000 Folio 199 obtained a worldwide freezing order against Mr. Kozeny and started proceedings against him in this country as well. On 19^th April 2000 Thomas J. ordered that the two actions be managed and heard together.
6. On 6^th March 2001 the defendants served an amended defence in which they alleged, among other things, that the agreements were unenforceable for illegality. They said that it had been necessary to bribe certain officials and members of the Azeri government in order to obtain options and vouchers for the claimants and that that had been done with the full knowledge and consent of the claimants. The claimants deny that they knew about any bribery and say that, if the defendants did give bribes, that is an additional reason why they are liable. The action against the second defendant was settled in November 2001.
7. Between November 2000 and March 2001 the defendants disclosed 82 files of documents pursuant to their obligations under C.P.R. Part 31. Another file was disclosed in August 2001. In July 2001 the New York District Attorney began an investigation into the affairs of Mr. Kozeny which eventually led to the preferment by the Grand Jury in October 2003 of an indictment charging him with 15 counts of grand larceny and 2 counts of possessing stolen property. These charges all relate to his dealings with the claimants in relation to the oil and gas privatisation in Azerbaijan. Mr. Kozeny currently resides in the Bahamas and is not therefore personally amenable to criminal proceedings in New York, but I am told that the District Attorney is considering an application for his extradition. For completeness I should mention that the District Attorney for the Southern District of New York has carried out a separate investigation into the activities of a Swiss lawyer, Mr. Hans Bodmer, in connection with the same oil and gas privatisation. That resulted in the preferment in July 2003 of an indictment against Mr. Bodmer in the United States District Court charging him with conspiracy to violate the Foreign Corrupt Practices Act.
8. On 18^th December 2002 the New York District Attorney made a formal request to the Home Office for assistance in connection with his investigation into Mr. Kozeny's affairs. Pursuant to that request the Secretary of State, acting under section 4(2A) of the Criminal Justice (International Co-operation) Act 1990 ("the 1990 Act") requested the Director of the S.F.O. to exercise her powers under section 2 of the Criminal Justice Act 1987 ("the 1987 Act") to obtain evidence requested by the authorities in the United States. As a result, on 5^th March 2003 a member of the S.F.O. acting on behalf of the Director served a notice on Mr. Lloyd to produce copies of any documents (other than those to which legal professional privilege attached) disclosed by the first, third and fourth defendants in these proceedings. On 4^th April 2003 the S.F.O. served a similar notice on Ms Bailey.
9. On 7^th March 2003 Mr. Lloyd applied to the court under rule 31.22 for permission to produce the documents referred to in the notice. The matter came on for hearing before me on 28^th March when it became clear that Mr. Kozeny wished to contest the application and that the real dispute lay between him and the S.F.O. I therefore gave the Director permission to intervene and gave directions for the service of evidence with a view to a hearing taking place in early June. In the event, the matter has been delayed by an application on the part of Mr. Kozeny (ultimately unsuccessful) for legal assistance. In January this year, after his appeal against the refusal of the Legal Services Commission to grant him legal assistance had been dismissed, Mr. Kozeny was able to obtain sufficient funds from other sources to instruct solicitors to act on his behalf. On 21^st January 2004 he issued an application seeking an order directing both Mr. Lloyd and Ms Bailey not to comply with the notices served on them by the S.F.O.
10. Mr. Slowe, who appeared on behalf of the defendants on these applications, submitted that although the powers of the Director under section 2 of the 1987 Act are very wide, they are nonetheless subject to certain exceptions dictated by considerations of public policy. In support of that submission he relied on a passage in the judgment of Hoffmann J. in In re Arrows Ltd [1992] Ch. 545, subsequently approved by the House of Lords in Hamilton v Naviede [1995] 2 A.C. 75. He submitted that the importance of preserving the confidentiality of documents disclosed under compulsion in the course of proceedings was sufficient to outweigh the importance of providing information in furtherance of investigations into serious fraud and that therefore considerations of public policy demanded that the notices served on Mr. Lloyd and Ms Bailey should not be complied with. He did not suggest, however, that the requirements of the 1990 Act or the 1987 Act were not fully satisfied and the validity of the notices is therefore not in issue.
11. The provisions of the 1987 Act that are most relevant to the present case are subsections (3), (9), (10) and (13) of section 2 and subsection (3) of section 3. These provide as follows:

" 2 Director's investigation powers

(3) The Director may by notice in writing require the person under investigation or any other person to produce . . . . . . . . any specified documents which appear to the Director to relate to any matter relevant to the investigation or any documents of a specified description which appear to him so to relate.

(9) A person shall not under this section be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to furnish the name and address of his client.

(10) A person shall not under this section be required to disclose information or produce a document in respect of which he owes an obligation of confidence by virtue of carrying on any banking business unless

(a) the person to whom the obligation of confidence is owed consents to the disclosure or production; or

(b) the Director has authorised the making of the requirement . . . . . .

(13) Any person who without reasonable excuse fails to comply with a requirement imposed on him under this section shall be guilty of an offence . . . . .

3 Disclosure of information

(3) Where any information is subject to an obligation of secrecy imposed by or under any enactment other than an enactment contained in the Taxes Management Act 1970, the obligation shall not have effect to prohibit the disclosure of that information to any person in his capacity as a member of the Serious Fraud Office . . . . . . .

12. There is thus a statutory obligation on a person on whom a notice is served under section 2(3) to provide the documents in question unless he has a reasonable excuse for failing to do so. The Act does not define what amounts to a reasonable excuse, but in In re Arrows Ltd [1992] Ch. 545 Hoffmann J. held in relation to a notice under section 2(2) that it must include any case in which a person is required or entitled under some other rule of law to withhold the information requested (page 552A-B). Section 3(3) expressly overrides all statutory obligations of secrecy other than those arising under the Taxes Management Act 1970. By implication it also overrides the common law privilege against self-incrimination: see R v Director of Serious Fraud Office, ex parte Smith [1993] A.C. 1. However, it has been recognised that it does not override without exception all rights and duties to withhold information recognised by the common law. Hoffmann J. explained the position in this way in In re Arrows Ltd at page 552C-F:

"Section 3(3) deals with statutory obligations of secrecy but not, in my judgment, the heads of public policy which may justify non-disclosure. When one considers the various heads of policy, such as national security, diplomatic relations and the administration of central government, which have been held to justify non-disclosure even for the purposes of justice, I find it impossible to suppose that the only public interest which Parliament thought capable of taking precedence over the investigation of fraud was the efficient collection of the revenue. The reason, in my judgment, why section 3(3) overrides most statutory obligations of secrecy is that these are expressed in absolute terms, or at any rate in terms which permit no exception for the needs of the S.F.O. But the doctrine of public policy, which may well underlie some of the statutory provisions, permits a balance to be struck between the public interest in preserving secrecy and the public interest in the investigation of fraud. There was no reason why these heads of public policy should have to be excluded from the concept of "reasonable excuse" and in my judgment section 3(3) does not have this effect."

13. This analysis was expressly approved by Lord Browne-Wilkinson in Hamilton v Naviede [1995] 2 A.C. 75 at pages 100F-101C in response to the submission made on behalf of the S.F.O. that the 1987 Act overrides public interest immunity as well as common law and statutory duties of confidence.
14. Mr. Slowe submitted that, although the 1987 Act overrides any duty of confidence that Mr. Lloyd or the claimants may owe to the defendants in relation to the documents at common law, there is a public interest in maintaining the confidentiality of documents disclosed in the course of litigation pursuant to the rules of court which it does not override. He based that submission on the importance which the courts have always attached to the obligation of disclosure and the need to ensure that parties to litigation comply fully with their duty in this respect. He submitted that, if the S.F.O. were able to obtain access to documents disclosed in litigation in circumstances such as those which exist in the present case, it would discourage many parties from complying with their duty and so adversely affect the administration of justice.
15. My attention was drawn to a number of cases in which the courts have considered the circumstances in which parties to litigation should be permitted to make use of documents disclosed in the course of that litigation for other purposes. They are relevant, both because they provide insight into the importance attached to the duty of disclosure and to the part played by the implied undertaking not to use the documents obtained in that way for any collateral purpose, and also because they provide examples of circumstances in which the courts have considered it appropriate to release parties from that undertaking.
16. The nature of the implied undertaking was considered by the House of Lords in Home Office v Harman [1983] 1 A.C. 280 in which Lord Diplock described it in the following terms:

". . . . . . . . an order for production of documents to a solicitor on behalf of a party to civil litigation is made upon the implied undertaking given by the solicitor personally to the court (of which he is an officer) that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else; and any breach of that implied undertaking is a contempt of court by the solicitor himself. Save as respects the gravity of the contempt no distinction is to be drawn between those documents which have and those which have not been admitted in evidence; to make use for some collateral or ulterior purpose of the special advantage obtained by having possession of copies of any of an adverse party's documents obtained upon discovery is, in my view, a contempt of court."

17. In Crest Homes Plc v Marks [1987] A.C. 829, on which Mr. Slowe placed considerable reliance, Lord Oliver at page 860 affirmed the general rule that

"the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery.",

and it is to be noted that although he recognised that public policy requires that orders of the court should be obeyed, he would not have considered the revelation of a civil contempt in some wholly unrelated proceedings to provide sufficient grounds for relaxing the undertaking.

18. In Bank of Crete S.A. v Koskotas (No. 2) [1992] 1 W.L.R. 919 the plaintiff bank obtained orders against various other banks in London requiring them to disclose information and documents relating to certain accounts. The order permitted use of the information and documents disclosed solely for the purposes of the action. The Bank of Greece appointed a special investigator to inquire into the bank's affairs who was obliged under Greek law to report to the Governor of the Bank of Greece and to the examining magistrate appointed to consider criminal proceedings. The plaintiff applied for a variation of the disclosure order to permit use of the disclosed material to enable the special investigator to complete his report. Having considered various authorities, including Crest Homes v Marks, Millett J. recognised that save in exceptional circumstances it would not be right for the plaintiff to make use of the material for purposes other than the litigation, but that it would not be right for the court to place the bank in a position in which it would be bound either to infringe its undertaking to the court or find itself in breach of its duties under Greek law. He therefore made an order allowing it to use the material in the preparation of the report and left it to the Greek authorities to decide whether as a matter of public policy it should be provided to the examining magistrate and, if so, what use was to be made of it.
19. In Attorney-General for Gibraltar v May [1999] 1 W.L.R. 998 the plaintiff obtained a freezing order against the defendant and an order for an affidavit of assets in support. The defendant was subsequently extradited to Gibraltar on charges of conspiracy to defraud and other offences. The Attorney-General applied for permission to use the affidavit of assets as part of the evidence for the prosecution. The defendant opposed the application on the grounds that, although he could not have relied on the privilege against self-incrimination in order to refuse to disclose his assets (there being no likelihood of proceedings against him in this country), the court should exercise its discretion against making the affidavit available to the prosecution. The judge accepted that argument, but the Court of Appeal held that the Attorney-General should be released from his implied undertaking on the grounds that the judge at the criminal trial would have the power to exclude the evidence if he considered that it would be unfair to admit it and that the criminal court in Gibraltar was the proper forum in which to decide that question.
20. These cases all emphasise the importance which the courts attach to the implied undertaking not to use material obtained by means of the court's coercive powers for purposes not directly related to the litigation in which it was obtained. The justification for it is that the exercise of coercive powers involves an infringement of the defendant's right to maintain privacy in the material in question. As Millett J. observed in Bank of Crete v Koskotas,

"The material obtained from the banks was ordered to be disclosed because it was within the account-holders' power and was compellable from them. Material obtained by the use of the court's coercive powers, whether from a defendant in respect of material in his possession, or from his bank in respect of material which is confidential to him but which is within his power, may in general be used only for the purpose for which it has been obtained. To use it for any other purpose would be to invade the defendant's privacy."

It is only right, therefore, that the use of documents and information obtained by the exercise of those coercive powers should normally be carefully confined within the limits necessary to enable justice to be done in the proceedings in which they were obtained.

21. The cases to which I have referred are of particular significance when it comes to considering the position of Mr. Lloyd who obtained copies of the defendants' documents as a result of the ordinary process of disclosure and therefore subject to the restriction set out in rule 31.22, but they are not directly relevant to the position of Ms Bailey (save insofar as they shed light on the importance attached to the obligation to give disclosure) since she obtained possession of the original documents from the defendants in the ordinary way for the purposes of the litigation and made copies of them for use by her firm and others acting for the defendants in the proceedings. The basis of Mr. Slowe's submission, therefore, was not simply that compliance with a notice issued by the S.F.O. would infringe the right to maintain confidentiality in personal papers – that right is clearly overridden by the 1987 Act – but that compliance with the notice would be likely to deter foreign litigants from bringing documents to this country for the purposes of giving full disclosure and might even deter them altogether from choosing this country as a forum for resolving their disputes. Both of these, he submitted, would be contrary to public policy.
22. The second of these arguments can be disposed of quite shortly. It is no doubt of great benefit to this country that many businessmen around the world choose English law to govern their contracts and choose the English court as the forum in which to resolve their disputes. With that in mind every effort has been made to ensure that our procedural rules generally, and particularly those that apply to proceedings in the Commercial Court, are as well suited to the needs of the international business community as they are to the citizens of this country in ensuring a just and efficient resolution of their disputes. I do not think that the outcome of these applications is likely to have any impact on the position of this country as a forum for the resolution of international disputes, but where the balance of public interest lies, if there is a conflict between investigating and prosecuting serious fraud both here and abroad and enhancing the attraction of this country as a forum for international litigation, is a matter for Parliament to decide rather than the courts. All that the courts can properly do is to ensure that, within the principles laid down by statute and the rules of court, proceedings are conducted in such a way as is most likely to lead to the just and efficient disposal of the cases that come before them.
23. Mr. Slowe's primary argument, however, requires more detailed consideration. He accepted, rightly in my view, that if Mr. Kozeny were resident in this country and were himself holding the documents in the ordinary course of business, he would have no reasonable excuse for failing to comply with a notice under section 2(3) of the 1987 Act. Moreover, I think it inevitably follows that the position would be exactly the same if the documents were held by his solicitor to his order rather than by him personally. Mr. Kozeny's opposition to these applications, therefore, rests entirely on the fact that he and the other defendants are resident abroad and have been compelled to bring the documents to this country in order to comply with their obligation to give disclosure. He submitted that if documents brought to this country under those circumstances were amenable to a notice under section 2(3) of the 1987 Act, foreign litigants would be discouraged from bringing their documents here, or at any rate would be discouraged from bringing to this country documents that might be used against them in support of criminal proceedings here or in other jurisdictions. There would therefore be a risk that they would fail to give full disclosure to the prejudice of the administration of justice.
24. There are really two distinct strands to Mr. Slowe's argument, one based on the proposition that the documents in the present case were brought to this country under compulsion, the other based on the risk of undermining compliance with the duty of disclosure. The fact that the documents were brought here only for the purposes of complying with the duty to give disclosure is certainly a reason for not allowing them to be used otherwise than for the purposes of the litigation, but the only consideration of public policy which arises in relation to their disclosure is that which may be said to arise out of the general public interest in maintaining the confidentiality of private documents: see per Millett J. in Bank of Crete v Koskotas at page 925. However, there is no greater public interest in preserving the confidentiality of documents belonging to residents of other countries than there is in preserving the confidentiality of documents belonging to residents of this country. So this cannot provide a reasonable excuse for failing to produce the documents in the present case, since it is clear that the 1987 Act overrides any right to confidentiality in documents belonging to residents of this country.
25. The requirement for disclosure of documents in the possession of adverse parties to the litigation has long been regarded as making an important contribution to the just resolution of disputes and despite some criticism it was retained, albeit in a more limited form, in the Civil Procedure Rules. In my experience it is an aspect of our procedure that is highly valued by commercial litigants. However, its importance should not be over-stated, nor should it be too readily assumed that litigants of all kinds invariably comply fully and without pressure with their obligations in this respect. The rules themselves allow the court to make orders for disclosure where there are grounds for thinking that a party has failed to comply with his obligations and in an appropriate case the court may impose sanctions which might, in an extreme case, extend to striking out the case of the defaulting party. Although there is a public interest, therefore, in ensuring that parties comply with their obligations in this respect as one aspect of the proper administration of justice, it is one which the courts are well equipped to protect.
26. There will always be some litigants who seek to suppress damaging documents, but I see no reason to think that foreign litigants in general are likely to be less willing than has hitherto been the case to make documents available for inspection in this country if they know that the S.F.O. may be able to obtain access to them under section 2 of the 1987 Act and that they may even become available to prosecuting authorities in other jurisdictions. If a person has documents in his control tending to show that he has been involved in a serious fraud, there already exists a powerful incentive to withhold disclosure. If there are grounds for thinking that such documents may exist, however, the court has adequate powers to ensure that the trial process is not rendered unfair by any reluctance to produce them.
27. However, even if that were not the case, I think it clear how Parliament has decided, as a matter of policy, that any conflict between competing interests of this kind is to be resolved. The 1987 Act itself makes it clear that the public interest in investigating serious fraud, and in assisting the authorities of other countries in their investigations into serious fraud, much of which is international in character, is so great that it takes priority over almost all statutory obligations of secrecy and almost all private rights of confidentiality. It is sufficient to take priority over the privilege against self-incrimination and must equally be sufficient to take priority over the public interest in ensuring that litigants comply with the duty of disclosure. Although one can contemplate situations in which the public interest in maintaining the confidentiality of information might be so great as to override the interest in the investigation and prosecution of serious fraud, so that public policy would favour withholding the relevant information, such situations are likely to be rare and each case will have to be considered on its merits. It is not suggested, however, that there are any special features of this case that would justify that conclusion.
28. Finally, I should mention one other submission by Mr. Slowe, namely, that the claimants were responsible for instigating the investigations in New York which have led to the prosecution of Mr. Kozeny and that it would be unfair to allow litigants who have gained access to their opponents' documents through the process of disclosure in this country to instigate proceedings abroad in which prosecutors can obtain those documents by invoking the procedures available under the 1990 Act.
29. It is by no means clear what part the claimants may have played in the New York District Attorney's decision to investigate Mr. Kozeny's affairs. In a witness statement made on behalf of the defendants in February 2002 Mr. Kent Dreadon of S. J. Berwin said on instructions from Mr. Kozeny's lawyer in New York that the investigation "appears to have been recently instigated and/or actively encouraged by the claimants". It is fair to say that that statement has not been challenged, but in the absence of any further details it provides a slender basis for suggesting that the claimants have acted in any improper manner, much less that their conduct raises any important considerations of public policy. Quite apart from that, however, I think Mr. Qureshi was right in saying that, in cases where the Director makes use of his powers in response to a request from the Secretary of State under the 1990 Act, it is for the Secretary of State to decide whether proper grounds exist for asking the Director to do so and for the judge in any criminal trial abroad to decide whether it would be unfair to allow the prosecuting authorities to make use of the documents in evidence. Moreover, in the present case the District Attorney has given an undertaking to the S.F.O. not to use the documents otherwise than in criminal prosecutions arising out of the particular investigations in connection with which they were sought.
30. For these reasons I am satisfied that neither the fact that Ms Bailey is in possession of the documents as the defendants' solicitor nor the fact that the original documents were brought to this country solely for the purposes of the proceedings provides her with a reasonable excuse for failing to comply with the notice issued to her by the S.F.O.
31. Exactly the same considerations apply to copies of disclosed documents held by Mr. Lloyd, but in his case there is the additional complication that he holds them on the terms set out in rule 31.22 and may therefore use them only for the purposes of the proceedings unless the court gives him permission to do otherwise. Mr. Qureshi submitted that Mr. Lloyd does not need to obtain the court's permission to provide the documents to the S.F.O., both because compliance with a notice under section 2(3) does not involve "use" of them within the meaning of rule 31.22 and because the 1987 Act overrides any restrictions imposed by the rules.
32. The opening sentence of Rule 31.22 simply states that

"A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed . . . . . . . . "

It says nothing about information derived from the documents (though I think that must be included by necessary implication), nor does it extend to documents or information provided under any other form of compulsion, for example, in response to a witness summons (formerly a subpoena duces tecum) or an affidavit of assets ordered in support of a freezing injunction. The rule itself gives no assistance on what is comprehended by the term "use", nor does it give any indication of the possible consequences of any making improper use of the disclosed documents.

33. The predecessor of rule 31.22 was R.S.C. O. 24, r. 14A which was introduced following the decision of the House of Lords in Home Office v Harman to make it clear that the implied undertaking given on disclosure ceased to have effect once a document had been read or referred to in open court, unless the court ordered otherwise. Although the limitation itself is now expressed in terms in rule 31.22, however, I very much doubt whether the rule was intended to introduce a fundamentally different regime in relation to documents and information obtained as a result of the ordinary process of disclosure from that which applies to documents and information obtained by other forms of compulsion. Accordingly, when construing the word "use" I think it is appropriate to have regard to the authorities relating to the implied undertaking at common law.
34. In Home Office v Harman Lord Diplock at page 304 described the solicitor's implied undertaking as being

"that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else" (my emphasis),

which, as the decision in that case emphasises, not only prevents the solicitor or his client from making use of them, but prevents him from allowing a third party to have access to them for purposes of his own. In my view allowing a third party to have access to the documents for any purposes unconnected with the proceedings would involve "using" them in a manner contrary to that permitted by rule 31.22.

35. Mr. Qureshi submitted, however, that rule 31.22 imports an obligation of secrecy and is therefore overridden by section 3(3) of the 1987 Act. Since the rules are a form of delegated legislation, I can see the force of his argument, but I do not think that rule 31.22 is to be understood as imposing an obligation of secrecy as much as imposing a limitation on use which is removed in the specific circumstances to which it refers. Use of documents otherwise than allowed by the rule still amounts to a contempt of court and Mr. Lloyd was therefore right in my view to seek the court's permission before disclosing the documents he had obtained on disclosure to the S.F.O. In my view it is desirable that a solicitor in the position of Mr. Lloyd should know clearly where he stands on a matter of this kind, but I doubt whether the need to obtain the court's permission is likely to make much difference in practice because I should expect any solicitor who is served with a notice to produce documents obtained as a result of disclosure to err on the side of caution and seek the court's approval before he complies with it.
36. Whether to grant permission to disclose the documents remains a matter within the discretion of the court, but it follows from what I have already said that it will only be in those rare cases where production of the documents can properly be resisted on public policy grounds that the court will be justified in withholding it. In the present case, I am quite satisfied, for the reasons I gave earlier, that there are no such grounds in this case. Accordingly, the proper course in my view is to give Mr. Lloyd permission to disclose the documents in question to the S.F.O. in compliance with the notice served on him. on 5^th March 2003.