In the recent case of The Official Receiver v Andrew Nathaniel Skeene & Junie Conrad Omari Bowers  EWHC 1252 (Ch) consideration was given to the request by the Serious Fraud Office (‘SFO’) to the Official Receiver for the disclosure of documents submitted during the course of Director Disqualification Proceedings.
Timothy Thompson of Kangs Solicitors comments.
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The Circumstances | Kangs Director Disqualification Solicitors
The Director Disqualification Proceedings (Civil Proceedings)
- The defendants were directors of GFI Consultants Limited (‘the company’) which traded as Global Forestry, which had a business model centred around the promotion of investment schemes in Brazil.
- Following compulsory liquidation in 2014, the Insolvency Service conducted extensive investigations and determined that the directors ‘caused or allowed the company to operate with a lack of commercial probity’.
- Director Disqualification Proceedings were commenced against both directors who, during the course of the proceedings, submitted Affidavits and exhibits explaining their conduct.
- Ultimately the case was settled by way of each director providing an Undertaking and receiving a Director Disqualification for ten years.
The Criminal Proceedings
- The SFO conducted investigations into allegations that the directors had been operating a Ponzi-style fraud valued in the region of thirty million pounds.
- As part of its investigations, in November 2018, the SFO requested the Official Receiver to disclose documents including the Affidavits and exhibits submitted as part of the Director Disqualification proceedings.
- The Official Receiver disclosed all documents except the Affidavits and exhibits on the basis that within the Disqualification Proceedings there existed an implied undertaking that those documents would only be used for the purposes of those proceedings.
- The Official Receiver referred the SFO to Part 31.22 of Civil Procedure Rules which states:
‘(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree.’
The Judgement | Kangs Criminal & Civil Litigation Solicitors
When delivering Judgment, Kyriakides J found that, since the Affidavits had not been made under compulsion in the Disqualification Proceedings, they were not subject to an implied undertaking andcould be disclosed, together with the exhibits, to the SFO without the permission of the Court.
The Judgement can be summarised as follows:
- ‘The Defendants have been charged with very serious offences of fraud, forgery and perjury. There is clearly a public interest to ensure that the criminal proceedings against them are conducted properly and that all relevant evidence is before the court…..
- The documents in the First Exhibit are highly likely to be relevant to the criminal proceedings……
- The First Exhibit is requested as part of the SFO’s continuing duty to investigate the subject-matter of the criminal proceedings against the Defendants……
- The disclosure of the First Exhibit will not, in my judgment, circumvent the criminal rules…..
- The documents were produced by the Defendants voluntarily as part of an exhibit to the First Affidavit. The Defendants, therefore, took the risk that they might be sought for a purpose other than the Disqualification Proceedings…….
- In view of my finding that there is no restriction against the Claimant supplying the SFO with the First Affidavit, which is the document where any defence is likely to be set out…….
- Whilst my decision is that the First Exhibit should be provided to the SFO, it does not mean that any of the documents in the exhibit will be used in evidence in the criminal proceedings…..’
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