Bank of England - confidential document disclosure

5 Mar 2025Court Report

High Court set aside an order compelling the Bank of England to disclose confidential documents to Ukrainian court

High Court rules on the disclosure of confidential documents

The High Court of Justice, King's Bench Division, ruled on a significant case involving the Bank of England and the Treasury. The case revolved around a request from the Commercial Court of Kyiv, Ukraine, for the disclosure of confidential documents held by the Bank of England. The request was made under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.

The Bank of England, represented by Jason Pobjoy from Allen Overy Shearman Stirling LLP, sought to set aside an earlier order requiring them to provide the requested documents.

The request from the Ukrainian court related to a letter of request seeking recognition of a bail-in under four loans made by UK SPV Credit Finance plc to PrivatBank. The Bank of England argued that disclosure of these documents was prohibited under section 348 of the Financial Services and Markets Act 2000 and section 89L of the Banking Act 2009. Additionally, they contended that such disclosure would infringe UK sovereignty.

The court considered the legal framework governing mutual legal assistance and the conditions under which the English court could exercise its discretion to provide such assistance. The court concluded that the requested documents were indeed confidential and that their disclosure was not permissible under English law.

Senior Master Cook ruled that the Bank of England is a primary recipient of the confidential information and that the requested documents fell within the definition of confidential information under the relevant statutes. The National Bank of Ukraine and PrivatBank, the entities related to the information, did not consent to the disclosure.

Furthermore, the court found that none of the exceptions in the Financial Services and Markets Act 2000 or the associated regulations applied to this case. The disclosure was not for the purpose of facilitating a public function, nor did it fall under any of the specified proceedings in the regulations.

The court also accepted the argument that compelling the Bank of England to disclose the documents would breach UK sovereignty, as it would undermine the confidentiality necessary for the Bank's regulatory functions and its interactions with other central banks.

In conclusion, the court set aside the initial order, ruling in favour of the Bank of England. This decision underscores the importance of maintaining confidentiality in regulatory matters and the limits of international legal cooperation when it conflicts with national laws.