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The High Court was recently required to decide whether evidence, which had been requested for use in foreign proceedings pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad, could be redacted on grounds of confidentiality.

Rio Tinto, one of the world’s leading mining companies, brought litigation in the US against a number of its competitors regarding alleged fraudulent conspiracy and corruption in the granting of iron ore concessions in Guinea. A number of the defendants to the litigation, including Vale, claimed that Rio Tinto’s lawsuit was time-barred. In due course, the New York court will have to determine whether Rio Tinto investigated the matter with reasonable diligence such that it can rely on “equitable tolling”, whereby the limitation period is postponed until the injured party could have discovered that it had a claim.

In 2009 and 2010, Rio Tinto had instructed a number of English business intelligence companies to produce reports regarding the sensitive political and commercial situation in Guinea. In the US litigation, Vale requested witness evidence and disclosure of documents from the business intelligence companies regarding the production of these reports, including evidence which identified the companies’ various confidential informants. The New York court granted Letters of Request for this evidence pursuant to the Hague Convention on the Taking of Evidence Abroad, which were given effect by Orders in the English High Court.

The three business intelligence companies asked the High Court to vary the Orders so that the identities of their sources could be protected. The companies explained that their sources provided information only on the condition that their identities would remain confidential. If their identities were disclosed, the sources were likely to be put in a position where they would fear for their and their families’ safety, or at least would be adversely affected in their careers. In response, Vale SA submitted that disclosure of the informants’ identities was necessary to enable an evaluation to be made of the credibility of the information, and that the evidence of risk provided by the companies was too vague.

Andrews J, applying the test set down in Science Research Council v Nassé [1980] AC 1028 (HL), explained that “the court must undertake a balancing exercise, weighing on the one hand the public interest in preserving the confidentiality, and on the other hand the public interest in the English court assisting the foreign court in obtaining evidence in this jurisdiction and enabling the fair resolution of court proceedings”. She held that the balancing exercise fell in favour of protecting the confidential information; the sources’ identities were of only peripheral relevance to the matters in issue in the US proceedings, whereas disclosure would require very serious breaches of undertakings of confidentiality. She therefore varied the Orders to permit redaction of the sources’ identities, requiring general information about each source to be provided in an anonymised form.

The full judgment can be read here:

Andrew George QC acted for the business intelligence companies.