The importance of disclosure in the English courts

A recent Court of Appeal judgment has reaffirmed the importance of disclosure in English legal proceedings - Persons Identified in Schedule 1 to the Re-Re-Amended Particulars of Claim v Standard Chartered PLC [2025] EWCA Civ 1581 (05 December 2025)

The case demonstrates the high bar applied by the Courts to any party seeking to resist disclosure of potentially relevant material and therefore also the need to engage actively with specialist and experienced disclosure lawyers to consider strategic options available in cases where disclosure may come with external complications. We summarise the key points here.

The application to withhold disclosure

The case, a group action brought by investors against Standard Chartered PLC (“SC”), concerns losses allegedly caused by misleading information published by SC regarding breaches of US economic sanctions and other alleged misconduct. The claimants sought compensation under sections 90 and 90A of the Financial Services and Markets Act 2000 (FSMA), relying on alleged misstatements, omissions, and dishonest delay in published information. The claims are substantial, with losses alleged to be in the region of £1.5 billion.

The specific issue before the Court of Appeal was SC’s application to withhold disclosure of 176 documents (out of approximately 50,000) unless and until consent was obtained from foreign regulators in the US and Singapore. The documents fell into two categories:

• US SAR Documents: Suspicious Activity Reports (SARs) and related communications, disclosure of which is prohibited under the US Bank Secrecy Act.

• Confidential Supervisory Information (CSI): Documents containing information subject to confidentiality obligations under US regulatory law.

SC argued that disclosure of these categories of documents would expose it to criminal prosecution or regulatory sanctions in the US, particularly where some regulators had refused consent. The High Court dismissed SC’s application and ordered disclosure into a confidentiality ring. SC appealed, but the Court of Appeal upheld the High Court’s decision.

Key legal principles regarding disclosure 

The Court of Appeal’s judgment provides a detailed restatement of the legal principles governing disclosure in English proceedings, particularly recognising the importance of disclosure in the fair disposal of proceedings and in achieving earlier settlements. However, the Court also recognised that “because giving disclosure is potentially expensive and burdensome it is controlled by the requirements of relevance and proportionality” and therefore may be subject to some limitations. The Court acknowledged that there may also be discretionary reasons for a court to dispense with the requirement to give disclosure, such as obligations of confidentiality owed to a third party. 

The key legal principles highlighted in the judgment were:

• Presumption in favour of disclosure: The English Courts maintain a strong presumption in favour of disclosure, regardless of the fact that compliance with a disclosure order may breach foreign law, noting that foreign law cannot be permitted to override the ability to conduct proceedings. The rationale is to ensure fairness and transparency in the resolution of disputes. 

• The burden of persuasion lies with the party seeking to withhold disclosure. Given the importance of disclosure, the burden of persuading the court to depart from the norm is a substantial one.

• Balancing exercise: Whether or not to make an order for disclosure is for the discretion of the Court. In doing so, the Court must balance the risk of adverse consequences (such as prosecution or regulatory action abroad) against the importance of the documents to the fair disposal of the case. While the existence of a real or actual risk of prosecution is a relevant factor, and one which the court would be very mindful of, it is not determinative. 

• Confidentiality protections: Where disclosure is ordered, the Court may impose confidentiality restrictions (such as confidentiality rings) to mitigate risks.

Key findings from the Court of Appeal judgment

The Court of Appeal dismissed SC’s appeal and upheld the order for disclosure. The key findings were as follows:

• No special weight for regulatory confidentiality: The Court rejected the argument that regulatory confidentiality obligations (such as those under US law) should be given special weight compared to private law obligations. The same balancing exercise applies.

• Burden of proof not discharged: SC failed to demonstrate a real or actual risk of prosecution or civil action if disclosure was ordered by a foreign Court. The Court found that the risk was not sufficiently substantiated to outweigh the importance of the documents to the proceedings.

• Importance of the documents: The Court accepted that, even though the trial judge had not been able to review the documents, they were potentially highly relevant to the proceedings and therefore potentially important for the fair disposal of the proceedings.

• Balancing exercise upheld: The Court confirmed that a proper balancing exercise had been conducted at first instance, weighing the risk of foreign prosecution against the need for disclosure in the interests of justice.

• Confidentiality measures: The Court reiterated that confidentiality measures (such as confidentiality rings) can be used to minimise any risks arising from disclosure and provided sufficient protection for the regulators.

The Court of Appeal’s judgment was handed down despite the settlement of the underlying litigation (which settled shortly after the draft judgment was handed down to the parties) demonstrating the significance of the principles considered. 

Written by Bethany Bosson