On 5 December 2025, the Court of Appeal handed down a major decision on the circumstances in which a party to English litigation can withhold disclosure based on an alleged risk of criminal prosecution in another jurisdiction and/or regulatory obligations.
In the context of a substantial securities fraud claim, Miles LJ (with whom Newey and Snowden LJJ agreed) considered the Court of Appeal’s decision in Bank Mellat v HM Treasury [2019] EWCA Civ 449 as to when the English court may dispense with disclosure where the disclosing party would face a real risk of criminal prosecution abroad. Miles LJ also considered the Court of Appeal’s earlier decision in National Crime Agency v Abacha [2016] EWCA Civ 760 as to when a party may withhold documents based on confidentiality obligations owed to public bodies.
In dismissing the appeal, Miles LJ provided general guidance as to the purpose and limits of disclosure in English litigation (at [71]-[72]) before emphasising that any party seeking to withhold disclosure carries the “burden of persuasion”, and “in reaching its decision the court will not lose sight of the policies and principles supporting the default position” such that “the burden of persuasion is a substantial one” (at [115]). Miles LJ also rejected the appellant’s submission that confidence owed under regulatory rules (including foreign rules) entails that the confidentiality should be given more weight than under private law obligations (at [129]).
Shail Patel KC and William Harman acted for the successful respondents.
