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Lord Chief Justice Applies Article 8 ECHR Rights to Business Transactions

6 March 2008

5 March 2008 - Lord Chief Justice rules that Article 8 ECHR rights to private life and correspondence must be respected in mutual assistance proceedings concerning business transactions

On 4 & 5 March 2008, the Divisional Court (Lord Phillips of Worth Matravers LCJ presiding) heard the judicial review in Hafner and anor v. City of Westminster Magistrates' Court. The case concerned a Swiss lawyer's challenge to the magistrates' court's decision to obtain evidence under compulsion in London for forwarding to the Australian Securities and Investment Commission. The claimants asserted that the evidence concerning business matters referred to them, but the magistrates' court refused to allow them to review the material to ensure that privileged or commercially sensitive material would not be unnecessarily disclosed, and concluded that the claimants' privacy rights under Article 8 European Convention on Human Rights (ECHR) were not engaged.

Giving judgment the Lord Chief Justice held that the courts, when considering requests to obtain evidence in mutual assistance proceedings, must consider the privacy rights of third parties under Article 8 ECHR. In particular, where a request for mutual assistance sought the production of evidence of business matters potentially covered by privilege, obtained in confidence or otherwise subject to privacy concerns, the courts should consider whether to give notice of the proceedings to third parties affected by the evidence. The courts should also consider allowing such parties to have prior access to the evidence, if necessary upon giving an undertaking of non-disclosure and under the supervision of the court, for the purpose of making written and/or oral submissions in respect of their confidentiality interests.

The Lord Chief Justice quashed the magistrates' court's decision and issued detailed guidance on the procedure to be used to ensure respect for Article 8 rights in mutual assistance proceedings.

Piers Gardner and Ian Rodgers appeared on behalf of the claimants, instructed by Kingsley Napley.

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Ian Rogers
Piers Gardner