Standard Chartered PLC fails to resist disclosure of US regulatory documents

The Court of Appeal has dismissed Standard Chartered PLC's appeal against an order requiring disclosure of approximately 176 documents subject to US regulatory confidentiality restrictions, in proceedings brought by investors claiming £1.5 billion in damages for alleged misstatements.

The appeal concerned two categories of documents: US Suspicious Activity Reports (SARs) and confidential supervisory information (CSI) held by US regulators. SC argued that disclosure would breach US law and risk criminal prosecution or regulatory sanctions, with potential penalties including fines up to $250,000 and imprisonment of five years.

Mr Justice Michael Green had rejected SC's application to withhold the documents unless US regulators granted permission. The Federal Reserve Bank and New York Department of Financial Services had refused authorisation, though they permitted disclosure of certain internal documents into a confidentiality ring.

Lord Justice Miles, delivering the leading judgement, confirmed the legal framework established in Bank Mellat v HM Treasury [2019] EWCA Civ 449. The court retains jurisdiction to order production regardless of potential breaches of foreign criminal law, though it will not lightly do so, mindful of comity considerations. The exercise requires balancing the actual risk of prosecution against the documents' importance to fair disposal of proceedings.

SC's principal ground challenged the judge's finding that no real risk of criminal prosecution or regulatory sanction existed. The court rejected this, noting the judge had properly applied the test of "real or actual risk" rather than requiring proof on the balance of probabilities. The judge's compressed reasoning adequately addressed expert evidence, including mitigating factors such as the Bank's full cooperation, the historic nature of the SARs, and disclosure being compelled by court order into a confidentiality ring.

The appeal also contended the judge had underestimated the documents' tangential relevance. The court disagreed, observing that the judge—with considerable case experience—had properly assessed their potential significance to issues including senior management knowledge of misconduct leading to the 2019 settlements.

SC's final ground argued the judge should have given substantial weight to regulatory confidentiality as a matter of comity, even absent prosecution risk. The court rejected this, finding no basis for treating regulatory confidentiality as inherently weightier than private law obligations. The US regulators had not intervened or submitted evidence supporting a blanket confidentiality claim, and their willingness to authorise disclosure of some document categories demonstrated a nuanced, case-specific approach.

The judgement reinforces that parties seeking to withhold disclosure bear a substantial burden of persuasion. Whilst the court remains mindful of foreign law obligations and comity, English procedural rules—requiring disclosure of relevant documents—constitute the default position. Generic assertions of regulatory confidentiality, unsupported by evidence of specific harm and unaccompanied by consideration of protective measures, prove insufficient to displace this principle.

The case management decision was upheld as involving no error of principle, with Lord Justice Miles emphasising that first instance discretionary decisions warrant appellate deference absent legal error or rationally insupportable conclusions.

Following circulation of the draft judgement, the parties settled the entire action. The court nevertheless handed down its decision in accordance with established practice in Barclays Bank v Nylon Capital.

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