In Bank Mellat v Her Majesty’s Treasury [2019] EWCA Civ 449 the Court of Appeal explored the interaction of English law and foreign laws in terms of access to sensitive evidence.
- Bank Mellat has brought a $4billion claim against HM Treasury ('HMT') for losses suffered as a result of the Financial Restrictions Iran Order 2009 ('the 2009 Order'), made by HMT in October 2009 and held unlawful by the Supreme Court, by a majority, in 2013.
- In evidencing its losses Mellat disclosed some 33,000 documents, redacting in form some 12,500 as, according to the Bank, they contain confidential banking data in relation to identifiable customers.
- The bank claimed the documents were protected under Iranian, Turkish and South Korean law and it could be prosecuted if it provided unredacted documents.
- The UK commercial court decided that the documents could be provided unredacted to a ‘confidentiality club’, i.e. to specified parties in connection with the trial and therefore not provided to open court.
- This requirement was appealed to the Court of Appeal.
The court noted that that:
- There was not an issue with Turkish or Korean law.
- HMT was unable to instruct an expert on Iranian law: those approached feared repercussions from Iran if they assisted HMT and the English Court.
The bank provided its own expert witness in Iranian law.
- The court decided that a risk of prosecution in Iran was not as high as this witness suggested.
- The court also decided that the bank could apply for a local order, or the state could make a decision not to prosecute (Iran itself being a major shareholder in the bank).
The appeal was dismissed: the court’s ability to conduct its proceedings in accordance with its own law and procedures should not be overridden by foreign law.
Comment
An interesting appeal to follow if you are considering the UK court's ability to rely on foreign expert evidence and potential issues with the disclosure of personal information by third parties.
Neutral Citation Number: [2019] EWCA Civ 449 Case No: A4/2018/2445 IN THE COURT OF APPEAL (CIVIL DIVISION) on appeal from the Commercial Court,
Bank Mellat v HM Treasury (No. 2) [2013] UKSC 38; [2013] UKSC 39; [2014] AC 700.
