1. The Framework - CPR 31

Standard Disclosure - CPR 31.6

Party must disclose only:

(a) Documents on which he relies,
(b) Documents which adversely affect his own case, adversely affect another party's case, or support another party's case, and
(c) Documents required by practice direction.

Plus duty under CPR 31.7: Reasonable search for adverse documents. CPR 31.8: Documents in his control - includes documents he can access under standing consent, even without enforceable right - BG UK case 2023.

Enhanced Disclosure: Under Business and Property Courts Disclosure Pilot PD 57AD (now permanent from 2022), court can order 5 models: Known adverse disclosure to full search-based disclosure. Banking cases typically get Model D (narrow search-based) or Model C (request-based).

2. Old Threshold - Peruvian Guano - Now Abolished for Parties

Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

Old test: "Every document relates to matters in question which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable party to advance his own case or damage adversary's case. Allows train of enquiry."

This was extremely wide - allowed disclosure of documents that might lead to other documents.

Status Today:

Shah & Anor v HSBC Private Bank (UK) Ltd EWCA Civ 1154[2011]

Court of Appeal held Peruvian Guano test is inapplicable to CPR 31.6 standard disclosure. Relevance now is limited to adverse/supporting test. No more train of enquiry for standard disclosure.

However, Peruvian Guano still referenced in two contexts:

• Waiver of privilege: Waiver does not apply to all documents relevant in Peruvian Guano sense, only same transaction - E20 Stadium LLP v Allen & Overy.
• Pre-CPR cases and Irish law - O'Brien v Red Flag Consulting IECA 258 - Irish Court still applies classic test strictly, rejecting speculative discovery.[2017]

Practical threshold for banking claim: Claimant suing bank for mis-selling IRHP must show documents directly adverse/supporting, not just "might lead to something".

3. Thresholds for Third-Party / Bank Disclosure - The Banking Exceptions

This is where banking cases are different - you need disclosure from bank who is not party.

A. Non-Party Disclosure - CPR 31.17

Threshold Test:

Court may make order only where:
(a) documents are likely to support case of applicant or adversely affect case of other party; AND
(b) disclosure is necessary to dispose fairly of claim or save costs.

"Likely" = may well exist, not 50/50. Necessity = high bar.

Example: High Court finds control includes third-party documents that litigating party can access under standing consent short of enforceable right - BG UK had standing consent to get docs from subsidiaries - held as control.

B. Norwich Pharmacal - The Fraud Exception to Bank Confidentiality

Tournier v National Provincial and Union Bank of England (1924): Bank owes duty of confidentiality, but 4 exceptions: consent, compulsion of law, public duty, protect bank's own interests.

Norwich Pharmacal v Customs & Excise (1974): Third party mixed up in wrongdoing must disclose identity of wrongdoer.

Threshold - 4 requirements:

1. Good arguable case / prima facie wrongdoing by ultimate defendant
2. Third party (bank) innocently mixed up - carrier, bank, telecoms
3. Third party is only practical source
4. Necessary in interest of justice, not fishing

UK Banking use: Fraud victim's money routed through bank - victim gets order against bank to disclose KYC, account holder identity.

C. Bankers Trust v Shapira 1 WLR 1274 - Higher Threshold for Proprietary Claim[1980]

Lord Denning extension: Where claimant has proprietary claim - money belongs to plaintiff - bank must disclose to enable tracing.

Threshold:

• Very strong evidence to support prima facie case of fraud
• Good grounds for thinking money belongs to plaintiff
• Fullest possible disclosure to enable tracing
• Only when sufficient evidence to justify overriding banking confidentiality

Difference from Norwich: Bankers Trust does NOT require defendant to be mixed up in wrongdoing, only that bank holds assets. Jurisdiction founded on preservation of proprietary rights.

Modern test comparison table (Global Law Experts):

4. Privilege Thresholds - When Bank Can Refuse

A. Legal Advice Privilege - Three Rivers

Three Rivers District Council v Governor of Bank of England (No.6) CA, HL: Bank of England collapse of BCCI. Bank sought advice from Freshfields. Court of Appeal held client for privilege = only 3 employees appointed to communicate with solicitors, not all employees. Narrow definition.[2004][2005]

But House of Lords No.5: Upheld privilege.

Result: Banks now appoint BIU (Bank Information Unit) - only designated persons = client.

B. Waiver by Reliance on Regulator - Property Alliance Group v RBS

Property Alliance Group Ltd v RBS EWHC 1557, EWCA Civ 355[2015][2018]

• PAG entered 4 interest rate swaps with RBS using GBP LIBOR.
• FCA Final Notice 6 Feb 2013 fined RBS £87.5m for CHF/JPY LIBOR misconduct, not GBP LIBOR.
• RBS in defence relied on regulatory decisions.

High Court held: RBS, by positively relying on regulatory decisions in Defence, had waived legal professional privilege and without prejudice privilege in documents provided to FCA/FSA. Must disclose negotiation docs leading to fine.

Threshold: If bank says "we were cleared by FCA", it waives privilege over material given to FCA.

C. Bankers Books Evidence Act 1879

Wangzhou Meng v HSBC Bank PLC EWHC 342: Application for disclosure of internal bank documents under 1879 Act limited to transactional records and UK proceedings only. Attempt to get internal docs for high-profile extradition case dismissed.[2021]

5. Key Banking Case Law on Disclosure Thresholds

1. Shah v HSBC: Peruvian Guano not applicable for standard disclosure. Narrows claimant's fishing.[2011]

2. Property Alliance v RBS [2015/2018]: LIBOR manipulation - bank ordered to hand over privileged docs. Establishes waiver threshold: reliance on regulator = waiver.

3. Bankers Trust v Shapira: Sets high threshold for overriding Tournier confidentiality - need prima facie fraud + proprietary claim.[1980]

4. Turner v RBS: Refined Tournier exceptions - bank can disclose to protect own interests, but must be necessary.

5. BCCI - Three Rivers: Defines who is client for privilege in banking - crucial for disclosure review.

6. Practical Checklist for Banking Litigation in UK

If you sue bank for mis-selling / LIBOR:

Standard disclosure: You get only docs bank relies on + adverse docs - no train of enquiry. Ask for Model D disclosure under PD 57AD with specific Issue for Disclosure: "All documents evidencing bank's knowledge of LIBOR manipulation relevant to GBP LIBOR".

If money stolen and routed through bank: Apply for Norwich Pharmacal + Bankers Trust - need good arguable case + show bank is only source.

If bank claims privilege over FCA docs: Argue Property Alliance waiver - if bank pleads FCA findings, must disclose underlying.

If bank is non-party: Meet CPR 31.17 threshold - likely to support + necessary.