Andrew Onslow KC successfully resists Bank Mellat application

In its latest judgment in the FSMA s.90 and s.90A action brought by investors against Glencore Plc and others, the Commercial Court (Bryan J) dismissed two applications by which the first and second defendants (Glencore Plc and Mr Ivan Glasenberg) sought to withhold disclosure of certain documents obtained from foreign investigators.

Glencore and Mr Glasenberg contended that disclosing such documents would constitute a criminal offence in the Netherlands, and that if they gave disclosure there was a real risk of their prosecution there.

The Court considered detailed expert evidence of Dutch law and practice, and the principles to be found in Bank Mellat v HM Treasury [2019] EWCA Civ 449 and subsequent cases. The Court held that the applications both failed, because disclosure would not amount to an offence under Dutch law; in any event there was no real risk of prosecution; and, even if there was such a risk, the required balancing exercise would easily have been resolved in favour of disclosure.

Andrew Onslow KC is instructed in the Glencore litigation by Stewarts for one of four Claimant groups, leading Richard Mott (One Essex Court, who argued part of the case), Usman Roohani (4 New Square) and Sabrina Nanchahal (One Essex Court). The Stewarts team is led by Keith Thomas, Elaina Bailes and Joe Mitchell.

The judgment is here.