The High Court has ordered Tesco to disclose, in civil proceedings brought by its shareholders under s.90A of the Financial Services and Markets Act 2000 (“FSMA”), documents that the SFO had provided in confidence to Tesco’s legal representatives in the course of negotiating a deferred prosecution agreement: Omers Administration Corporation & Ors v Tesco plc [2019] EWHC 109 (Ch).

The material in question comprised documents, interview transcripts and witness statements that the SFO had obtained from third parties using its powers to compel the production of information/documents under s.2 of the Criminal Justice Act 1987. Accordingly, the decision highlights the possibility that material provided to the SFO (and potentially other regulatory or enforcement bodies) may become disclosable in subsequent civil proceedings.

More generally, the decision provides an illustration of how the court will deal with a request that a party disclose documents which are subject to third party confidentiality obligations. Confidentiality is not, in itself, a bar to disclosure, but it is a factor the court will take into account in considering whether to order disclosure. The decision emphasises that the court must approach the matter by reference to all the circumstances of the case and without any presumptions one way or the other. In general, however, where the documents are relevant, the balance is very likely to favour production, unless the same information is available from another source without disproportionate difficulty – but the court will seek to impose appropriate measures to protect that confidentiality, insofar as compatible with the needs of justice.

For more information, please see our Banking litigation ebulletin on the decision.