Finance litigation update - July 2022

FINANCE LITIGATION UPDATE – JULY 2022 2 Requests for disclosure from foreign courts: a question of compliance In Sakab Saudi Holding Co v Al Jabri & Ors, Re: HSBC & Ors [2021] EWHC 3390 (QB), the High Court acceded to a letter of request from a Canadian court requesting the production of documents by HSBC UK Bank plc, Arab National Bank and Royal Bank of Scotland plc (the "Banks") for use in relation to ongoing civil proceedings in Canada. The judgment provides a useful overview of the approach of the English courts to foreign judicial requests for assistance. In this update we examine the decision in Sakab and highlight some key practical takeaways for parties notified of, or seeking, such requests. Background A number of companies incorporated in the Kingdom of Saudi Arabia (the "Applicants"), issued proceedings in Canada alleging that a former highranking government minister in the KSA, Dr Saad Al Jabri, and others orchestrated an international scheme to defraud the Applicants of at least SAR 13 billion (US$3.47 billion). As part of those proceedings, the Canadian court granted a worldwide freezing order against Dr Al Jabri's assets and a "Norwich Pharmacal" order against various third parties (including the Banks and Farrer and Co LLP, collectively, the "Respondents") for the disclosure of certain categories of documents (the "NPO"). Although the NPO requested the judicial assistance of the English courts, it was not directly enforceable outside of Canada. As the Respondents would not provide the disclosure voluntarily, the Applicants applied for the 1 Galas v. Alere Inc [2018] EWHC 2366 (QB) issue of a letter of request from the Canadian court to the English court to give effect to the NPO in this jurisdiction (the "LOR"). Pursuant to the LOR, the Applicants applied to the English courts seeking an order for disclosure from the Respondents. Decision None of the Respondents opposed the LOR, although Farrer & Co raised 'serious concerns' about the scope of the draft order. However, the order was opposed by Dr Al Jabri on the grounds of relevance. He argued the LOR was a 'fishing expedition' for documents for investigatory purposes rather than to address issues in dispute at trial. Although questions of relevance are normally the domain of the requesting court, the receiving court can consider relevance if: (a) the requesting court has "plainly not considered the question of relevance"; or (b) it is clear to the English court, even on a broad examination, that the evidence is not relevant1. The court considered Dr Al Jabri's objections (as more fully described below) but ordered that the Banks produce the documents requested under the LOR. The Applicants had recognised that the documents sought under the NPO would not be granted under the LOR regime because some documents were sought for investigatory purposes. The Applicants therefore narrowed their request and ensured that the only documents sought from the Banks under the LOR were documents relevant to issues in dispute at trial. As the court was satisfied that the Canadian court had considered the question of relevance in relation to the NPO, it granted the disclosure sought. However, the documents requested from Farrer & Co under the LOR were entirely differently described and broader than the documents ordered to be disclosed in the NPO. On the evidence available to it, the court concluded that the Canadian court had not specifically considered the relevance of this broader class of documents because the difference between the scope of the two applications had not been made clear to it. Accordingly, the English court deemed it appropriate to conduct its own relevance assessment based on its knowledge of the Canadian civil proceedings. On the available evidence, the court concluded that the documents requested from Farrer & Co by the Applicants were not sufficiently relevant