(1) Robert Tchenguiz (2) R20 Ltd v Serious Fraud Office

The Court of Appeal has given a judgment in the Tchenguiz litigation, upholding the ability of the Serious Fraud Office to dispute liability for trespass notwithstanding a declaration by the Divisional Court that the searches and seizures in issue were unlawful. 

In March 2011, the SFO conducted raids of the homes and business premises of Robert and Vincent Tchenguiz, pursuant to warrants granted by HHJ Worsley QC. 

In July 2012, the Divisional Court allowed claims for judicial review brought by the Tchenguiz brothers and companies associated with them, quashing the search warrants on public law grounds and declaring the entries, searches and seizures conducted pursuant to those warrants to have been “unlawful on the grounds set out in the judgment”. 

In subsequent private law claims seeking substantial damages for trespass, Robert Tchenguiz and an associated company argued that the SFO was estopped from disputing liability for trespass, by reason of the Divisional Court’s declaration. 

The Court of Appeal upheld the High Court’s rejection of that argument, holding that previous decisions of the Court of Appeal “…demonstrate clearly … recognition of the distinction to be drawn between public law unlawfulness entitling the person affected to challenge the order made by a judicial authority (and its execution), and private law liability for damages of those acting under judicial authority in its execution” (para 14 per Pitchford LJ).  It followed that “[t]he making of a declaration of unlawfulness on public law grounds does not … imply any intention by the court to make a finding of tortious liability” (para 15 per Pitchford LJ).  The SFO’s defences to the trespass claim, namely lawful justification (based upon the subsequently quashed warrants) and the Constables Protection Act 1750, will be heard at the substantive trial which will being in October 2014.

James Eadie QC and James Segan, instructed by Slaughter and May, acted for the Serious Fraud Office.