| FINANCIAL SERVICES — Confidential information — Production of documents — Trust’s adviser required as part of litigation to produce for inspection information supplied to Financial Services Authority and given to back to adviser — Adviser ordered to allow inspection of warning notices — Whether adviser “obtaining” information from authority and therefore prohibited from disclosing it — Whether inspection of warning notices would result in their prohibited “publication” — Financial Services and Markets Act 2000, ss 348, 391
Real Estate Opportunities Ltd v Aberdeen Asset Managers Jersey Ltd and others [2007] EWCA Civ 197
CA: Tuckey, Arden and Lawrence Collins LJJ: 9 March 2007
For the purposes of s 348 of the Financial Services and Markets Act 2000 a person could not be said to”obtain” information from the Financial Services Authority (“FSA”) which it had collected in the course of inquiries if the authority gave him a document containing information he already possessed even if, as far as the authority was concerned, he was not the source. Nor could he be said to obtain such information if he knew it already ,or as a body corporate, that information was attributed to it under the general law. An order for inspection of warning notices would not result in their publication contrary to s 391 of the 2000 Act.
The Court of Appeal so stated when dismissing the appeal of the defendants, Aberdeen Asset Managers Jersey Ltd, Aberdeen Asset Managers Ltd and UBS Ltd, in an action brought by the claimant, Real Estate Opportunities Ltd, against a decision of David Richards J in the Chancery Division on 15 December 2006 [2006] EWHC 3249(Ch) ordering the inspection of certain documents.
ARDEN LJ said that four issues arose on the appeal. (i) Could a person be said to "obtain" information from the FSA for the purpose of s 348 of the 2000 Act if the FSA gave that person a document containing information which he already had even if he was not the source so far as the FSA was concerned? In her Ladyship’s judgment the natural meaning of “obtaining” in s 348(1) was “who has obtained”. The purpose of section 348 was to protect confidential information which had found its way into the FSA’s hands. There were strong reasons for restricting disclosure of information provided to a regulator. The importance Parliament attached to those restrictions was emphasised by the fact that a breach of s 348 was made a criminal offence under s 352 of the 2000 Act. Examination of the purpose of ss 348, 349 and 352 militated against imposing any bar on disclosure by UBS as the secondary recipient in the situation where confidential information had been supplied to the FSA by an employee from the files of UBS without having had specific authority to do so and the situation where the FSA supplied information to UBS, which UBS already had. Her Ladyship, therefore concluded that a person did not "obtain" information from the FSA for the purpose of s 348 of the 2000 Act if he had that information before it was given to him by the FSA. That would be so even if that person were not the "source" of that information in the sense of having authorised some individual on its behalf to give the information in question to the FSA. That conclusion was consistent with Arbuthnott v Fagan [1996] 1 LRLR 143. Further in her Ladyship’s judgment, it followed from the fact that UBS could disclose certain information to another person, that person was not prohibited by s 348 from disclosing it to any other person. (ii) Could a person be said to "obtain" information from the FSA for the purpose of s 348 if he knew that information already, or, in the case of a body corporate, knowledge of that information was attributed to it under the general law? That issue covered the situation where the information was not in written form in the files of UBS, but was known to its employees or consultants. The Arbuthnott case did not draw a distinction, but in In re Galileo Group Ltd [1999] Ch 100 it had been taken as axiomatic that the Arbuthnott case would apply also to information, knowledge of which was attributed to the person seeking to rely on the prohibition. The thrust of issue (ii) was whether, as the judge had held, in the case of corporate bodies the normal rules of attribution of knowledge applied. Her Ladyship agreed that, for the purposes of ascertaining whether UBS had obtained information from the FSA, UBS did not “obtain” any information it already knew. For that purpose UBS was taken to know the information known to its employees, consultants and directors which would be attributed to it under the general rules of attribution at or before the time that the relevant information was conveyed to it by the FSA. (iii) Did the judge err in the exercise of his discretion by ordering inspection of the documents notwithstanding the objections raised by UBS? In her Ladyship’s judgment the judge did not err in the exercise of his discretion under CPR r 31.12(3). (iv) Would the order for the inspection of warning notices result in publication of them contrary to s 391 of the 2000 Act? The 2000 Act created an antithesis between the “disclosure” of information and its “publication”. The judge had not been wrong to attach significance to that distinction. Disclosure involved the revelation of information for the first time whereas publication did not. Publication, however, by its nature must, in her Ladyship’s judgment, necessarily involve a dissemination with a view to making information available to the public. On that basis, while dissemination to a single person could be publication if done for the requisite purpose, dissemination to a large number of persons for a different purpose would not necessarily amount to publication.In the present case the dissemination would only be for the purpose of litigation. The documents of which inspection was given would remain confidential until the trial began and thereafter would remain confidential if appropriate arrangements were made before they were deployed during the trial. Thus making documents available for inspection did not of itself result in the publication of the information contained in those documents.
LAWRENCE COLLINS and TUCKEY LJJ agreed.
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Appearances: Mark Howard QC, Simon Salzedo and David Scannell (CMS Cameron McKenna LLP) for the first two appellants; Iain Milligan QC and Adrian Beltrami (Mayer, Brown, Rowe & Maw) for UBS; Jonathan Sumption QC, Helen Davies and Simon Birt ( Lovells) for Real.
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