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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> FCFM Group Ltd v Hargreaves Lansdown Asset Management Ltd [2018] EWHC 3075 (QB) (18 October 2018) URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/3075.html Cite as: [2018] EWHC 3075 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice 218 Strand London WC2A 2LL
		18 October 2018

1. MARTIN GRIFFITHS QC, DEPUTY JUDGE OF THE HIGH COURT: This is an application for Norwich Pharmacal relief in support of a private prosecution (see Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133). The action is brought by FCFM Group Ltd ("FCFM") against three defendants: Hargreaves Lansdown Asset Management Ltd, Interactive Investor Services Limited and EE Limited. The private prosecution which FCFM is considering arises out of facts which also underlie civil litigation already proceeding elsewhere between FCFM and two individuals who are not party to this action and who have not been notified of it (who I will refer to as "Mr and Mrs Y").
2. FCFM is represented before me today, but the respondents to the application have chosen not to appear or be represented, although an indication of their position appears in the evidence. They do not oppose the applications. However, the people most concerned, whose affairs would be disclosed to FCFM if I were to grant the application, are Mr and Mrs Y. They are not present or represented and are not parties to these Norwich Pharmacal proceedings. Indeed, they have not, I am told, been made aware of the application or of the basis upon which it is made. Mr Watson of Counsel, who appears for FCFM, has said that he is proceeding on the basis that FCFM should give full and frank disclosure to the Court in the absence of Mr and Mrs Y.
3. The narrative that has been outlined to me by Mr Watson from the evidence is that, between 12 and 17 October 2017, Mr Y attempted to buy from FCFM shares in a company ("RRE") which is traded on AIM. The share price had been fairly stable. There is a dispute between Mr and Mrs Y as to whether, at the end of those discussions, on 17 October 2017, there was a binding contract for Mr and Mrs Y to buy those shares from FCFM or not. On the following day, 18 October 2017, a reverse takeover was publicly announced, which caused the share price of RRE to rise substantially.
4. Civil proceedings were launched by Mr and Mrs Y against FCFM on 14 March 2018 in the Chancery Division of the High Court (Business and Property Courts, Business List), claiming specific performance of what they say was an enforceable contract between them and FCFM for the acquisition of RRE shares at the price prevailing before the public announcement. A Defence and Counterclaim was served by FCFM on 20 April 2018. A Reply and Defence to Counterclaim was served by Mr and Mrs Y on 29 May 2018. I am told that FCFM fully intends to pursue the civil action (in which, after all, it is a Counterclaimant as well as a Defendant).
5. In its Defence and Counterclaim, FCFM denies that there was a concluded contract. In addition, FCFM puts forward three alternative cases which are summarised in paragraphs 5(3), (4) and (5) of its Defence and Counterclaim.
6. First of all, FCFM contends that if the parties did enter into a contract of sale for the shares,

"…the contract should be set aside on the grounds that it was induced by false misrepresentations that were made fraudulently or negligently under section 2(1) of the Misrepresentation Act 1967"

The representations relied upon are allegedly implied representations by Mr and Mrs Y (quoting paragraph 39 of the Defence and Counterclaim) that:

"(1) They had no inside information likely to have a significant effect on the price of the [RRE] Shares;

(2) They had no inside information that [FCFM] and/or any other regular participant in the market would consider relevant to whether to sell the shares at that time or whether to sell the Shares at that time, or whether to sell the Shares at the price of £1.25 per share;

(3) They honestly believed and/or had reasonable grounds to believe that the price of £1.25 per share was a proper or market price for the Shares based on information legally available to market participants; [and]

(4) They were seeking to purchase Shares in good faith."

7. The second basis upon which the Defence and Counterclaim is put is that FCFM is entitled to damages caused by conspiracy by unlawful means and/or deceit. It is pleaded (quoting paragraph 5(4) of the Defence and Counterclaim) that Mr and Mrs Y:

"…acted pursuant to a conspiracy to purchase the Shares using unlawful means intentionally to inflict harm upon [FCFM] which has caused [FCFM] to suffer loss and damage. The unlawful means constituted the use of inside information relating to the takeover of [another company] which involved a breach of confidence owed to [RRE] and/or the offence [of] insider trading under section 52 of the Criminal Justice Act 1993."

8. The third basis upon which FCFM's case is put (quoting paragraph 5(5) of its Defence and Counterclaim) is:-

"Alternatively, if it was lawful to use such inside information, then the Claimants' common design amounted to a conspiracy to injure with the predominant purpose of damaging the Defendant which has caused loss and damage."

9. I have been told that FCFM has made contact with the prosecuting authorities, and that there are limits to what can be said about that contact, but that the prosecuting authorities have not indicated what course they propose to take. On the face of it, the prosecuting authorities, being now seized of the matter, are, with their special powers and experience, better placed to decide whether there might or should be a prosecution, and, if so, to investigate and pursue it, than FCFM is. FCFM frankly acknowledges the disadvantages it faces as a private prosecutor. It submits in its skeleton argument:

"There are substantial procedural hurdles to overcome in order to bring a private prosecution. In order to do so FCFM should seek to satisfy the Full Code Test for prosecutors and to establish that FCFM has made all reasonable enquiries before commencing the prosecution.

However, the powers available to a private prosecutor in order to do so are very limited. The only power currently available to FCFM in order to obtain the relevant information is to apply for a Norwich Pharmacal Order."

10. This seems to me to approach the situation from the wrong angle. The fact that private persons do not have the investigative powers and resources conferred upon public authorities is not, in itself, a reason to use the procedures of the civil courts in order to give them access to materials they would not otherwise be entitled to see. The fact that public authorities do have those investigative powers and resources is, on the other hand, a reason to assume (in the absence of other evidence) that, in the first instance, the work of investigation and prosecution can be left to them. There has to be good reason to allow a private person to use the Norwich Pharmacal procedure in the pursuit of materials for a private prosecution. When the matter is currently in the hands of prosecuting authorities, as in this case, and, moreover, when the private person (a company in this case) is litigating the same questions in a civil suit, it is doubtful whether it can be said that there is "the need for an order to enable action to be brought against the ultimate wrongdoer", to quote Lightman J in Mitsui & Co Ltd v Nexen Petroleum (UK) Ltd [2005] EWHC 625 (Ch), [2005] 3 All ER 511 at para 21. I will come back to that question.
11. The Norwich Pharmacal application made to me is for documents which FCFM hopes might substantiate or (as it might be) undermine the case for a private prosecution of Mr and Mrs Y, applying the Full Code Test in The Code for Crown Prosecutors (January 2013 edition) ("the Code"). The Full Code Test has two stages: (i) the evidential stage; followed by (ii) the public interest stage. At the evidential stage,

"Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be." (paragraph 4.4 of the Code).

At the public interest stage:

"In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest" (paragraph 4.7 of the Code).

12. I am told that the potential offences which FCFM has in mind are fraud by false representation against FCFM, contrary to section 2 of the Fraud Act 2006, or conspiracy to defraud FCFM. It is accepted before me that the factual basis of any private prosecution for those two potential offences will be the same as the factual basis for the Defence and Counterclaim which I have quoted. In addition, FCFM considers there is a basis for investigating a potential prosecution for what is commonly known as insider dealing, contrary to section 52(1) of the Criminal Justice Act 1993, section 52. That could not be the subject of a prosecution without the consent of the Director of Public Prosecutions, as I will explain in more detail, below. FCFM says the case would be based, not only on the facts of the negotiation and the timing of it relative to the public announcement and the rise in the share price, but also on an admitted contact between Mr Y and another party ("JM") which FCFM suspects may have been the occasion of inside information being passed from JM to Mr Y. It does not appear that the suspicion that inside information was passed on is based on anything except the fact of the meeting, and the subsequent attempt to buy shares before the price rose, in the circumstances I have outlined. JM denies that inside information was passed on, as do Mr and Mrs Y.
13. FCFM does not allege that Mr Y, still less Mrs Y, are people with any criminal convictions or that they are not respectable people of good character. FCFM simply bases its suspicions on the facts that I have outlined. FCFM is not aware of Mr or Mrs Y being charged with or convicted of any criminal offence but is not deterred by that, emphasising that, as a private entity, FCFM does not have access to what it calls in supplemental written submissions to me Mr or Mrs Y's "criminal record" – a record which there is no evidence to suggest actually exists.
14. The date ranges and categories of documents sought from each of the Defendants to these Norwich Pharmacal proceedings are quite wide, and I will briefly outline them. The request framed in the skeleton argument is modified from the draft Order attached to the application notice and I will summarise, therefore, from the skeleton argument dated 16 October 2018 as representing FCFM's latest position.
15. The documents sought from the first defendant, Hargreaves Lansdown Asset Management Ltd, are statements showing the trading history of both Mr Y and Mrs Y from 1 January 2013 to 31 December 2017 via accounts held with Hargreaves Lansdown. The date range is a period of five years. I am told the basis for the request is that FCFM would like to scrutinise the entire trading history of Mr and Mrs Y with Hargreaves Lansdown over those five years so that FCFM can form its own judgment, as a potential private prosecutor, about whether there are anomalies in the trading history, or whether the trading history suggests that the RRE share purchase proposed from FCFM, in October 2017, was anomalous. FCFM speculates that information of this sort could support FCFM's suspicions that the RRE trade was based on improperly obtained information.
16. In addition, FCFM seeks all communications between Hargreaves Lansdown and Mr Y or Mrs Y from 29 September 30 October 2017. That period of one month is chosen because it is around the time of the disputed contract for the purchase of RRE shares from FCFM and the public announcement which caused the share price to rise. The nature of the communications sought over this one month period is set out in the draft order attached to the application notice as follows:-

"Any correspondence (including but not limited to emails, letters, file notes of calls and attendances, text messages if any and recordings of calls or meetings) between Hargreaves Lansdown and [Mr Y] and/or [Mrs Y] (or their representatives) between 29 September 2017 and 30 October 2017."

17. From the second defendant, Interactive Investor Services Ltd, who are said now to hold information previously held by TD Direct, FCFM seeks, first, statements in respect of any accounts held by Mr Y and/or Mrs Y for the period 1 January 2013 to 31 December 2017 (that is, a period of five years) and, second, communications between TD Direct and Mr Y and/or Mrs Y or their representatives from 29 September 2017 to 30 October 2017 (a period of one month). I am told that it was through ISAs held by Mr and Mrs Y with TD Direct that the shares in RRE were to be bought. FCFM seeks access to these documents for reasons similar to those for which they seek documents from Hargreaves Lansdown. With an eye to the Full Code test, they hope that by looking through five years of records for Mr and Mrs Y, and one month of communications with Mr and Mrs Y, they may be able to find evidence to support the suspicions on which they plan to base an investigation which might lead to a private prosecution.
18. Finally, FCFM makes an application against a mobile telephone company, EE Ltd ("EE"). EE was a mobile phone provider to both Mr Y and Mrs Y. FCFM wants disclosure of Mr and Mrs Y's full EE call and text history from 10 August 2017 (the first date that EE has records for) to 31 August 2018, a period a little in excess of one year. The precise scope of the order sought is all Documents (as defined in CPR Rule 31.4) in EE's possession, custody or control relating to "all outgoing and incoming (voice call, text/picture messaging and other data session) communication records" for Mr and Mrs Y's respective EE mobile telephone numbers in that one-year period. FCFM is, therefore, seeking from EE a complete inventory of all the telephone calls and other communications through their mobile phones that Mr and Mrs Y have made, not just to each other, but to anybody in the world and, not just in relation to the proposed RRE share purchase, or other share purchases, but for any reason and on any topic whatsoever. FCFM wants these, I am told, to investigate any contact between Mr or Mrs Y and JM "or any other insider" in the period leading up to the proposed RRE share purchase, and to see whether the nature of any contact "was anomalous with earlier/later periods". They think that by looking at those records they might be able to obtain some additional material to support the suspicions to which I have referred.
19. I have concerns about whether the breadth of materials sought could be justified on any basis.
20. Turning the application itself, I am referred to three conditions for the grant of Norwich Pharmacal relief set out by Lightman J in Mitsui & Co Ltd v Nexen Petroleum (UK) Ltd [2005] EWHC 625 (Ch), [2005] 3 All ER 511 at para 21:-

"i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;

ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and

iii) the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued."

21. In relation to stage (i) (i.e. whether a wrong has arguably been carried out by an ultimate wrongdoer), a test for what is arguable was formulated by Mustill J (as he then was) in The Niedersachsen [1983] 2 Lloyd's Rep 600 at 615. This was applied to applications for Norwich Pharmacal relief by Flaux J in Ramilos Trading Ltd v Buyanovsky [2016] EWHC 3175 (Comm) at para 14. That test is that the case should be "more than barely capable of serious argument and yet not necessarily one which the Judge believes to have a better than 50 per cent chance of success".
22. The present case is based essentially on the timing of negotiations relative to the subsequent rise in the RRE share price and also the fact of prior contact with a person, JM, who was an insider. It is difficult to obtain convictions for insider dealing, not least because of the criminal standard of proof. However, I will assume for present purposes that there is a good arguable case sufficient for me to move on to the other conditions for the grant of Norwich Pharmacal relief.
23. Stage (ii) is whether there is the need for an order to enable action to be brought against the ultimate wrongdoer. What is a sufficient need for these purposes is illustrated by the decision of the House of Lords in Ashworth Hospital Authority v MGN Limited [2002] UKHL 29, [2002] 1 WLR 2033. In that case, Lord Woolf LCJ approved the remarks of Templeman LJ in British Steel Corporation v Granada Television Limited [1981] AC 1096, 1132, where he said:

"The principle of the Norwich Pharmacal case applies whether or not the victim intends to pursue action in the courts against a wrongdoer provided that the existence of a cause of action is established and the victim cannot otherwise obtain justice."

24. The function of the Norwich Pharmacal jurisdiction is, therefore, to allow the applicant to obtain justice. This applies whether justice is to be obtained in civil proceedings or in criminal courts: see Ashworth at paras 53 – 58. Ashworth does not itself seem to have been a case about a private prosecution but it does not dismiss the possibility of Norwich Pharmacal relief in connection with private prosecutions: see paras 55-56. I am told there are other examples of a Norwich Pharmacal order being obtained in respect of prospective criminal proceedings, and I have been referred to D Ltd v A [2017] EWCA Crim 1172. The judgment in that case, at para 31, states: "Following the outcome of the Norwich Pharmacal application, and various other steps taken and further investigations made, summonses were issued, on informations laid by the applicant, by the Westminster Magistrates Court…" The applicant was a limited company which had begun a private prosecution (para 2). However, in that case the private prosecution was brought "after the Police and Serious Fraud Office had both declined to investigate further" (para 58).
25. In Ashworth, Lord Woolf said at paragraph 57:

"The Norwich Pharmacal jurisdiction is an exceptional one and one which is only exercised by the courts when they are satisfied that it is necessary that it should be exercised."

The necessity is "to enable action to be brought against the ultimate wrongdoer" (Lightman J in Mitsui at para 21, quoted above), and the requirement is that "the victim cannot otherwise obtain justice" (Ashworth para 46, citing the remarks of Templeman LJ in British Steel v Granada to which I have already referred).

26. Assuming, as I have, that FCFM's suspicions are arguably well-founded, FCFM is putting forward two routes by which it proposes, in the phrase I have quoted, to "obtain justice" against Mr and Mrs Y, namely, the existing civil proceedings and the proposed private criminal prosecution.
27. The civil proceedings include the Counterclaim under which FCFM claims damages and other relief against Mr and Mrs Y. This should provide FCFM with full compensation for any legal wrong that it may have suffered at the hands of Mr and Mrs Y. It seems to me obvious that the first port of call for these documents, in the circumstances of this case, should be in the civil proceedings. I will explain why.
28. The documents which are sought in the application before me are documents which FCFM could seek by way of disclosure in the civil action, whether against Mr and Mrs Y themselves (who, looking at the categories of documents sought, would presumably have their own copies) or, indeed, by way of a third party disclosure application in the civil proceedings. I will not say whether FCFM will or should succeed in any such application in the civil proceedings. That would be a matter in those proceedings, in which Mr and Mrs Y might have something to say. However, the causes of action in FCFM's Counterclaim in the civil proceedings are based on the same facts as their contemplated private prosecution, so, if there is a proper basis for obtaining disclosure by way of Norwich Pharmacal relief in support of a private prosecution, the same basis can be put forward in support of a disclosure application in the civil proceedings.
29. If disclosure is ordered in the civil proceedings, only relevant documents will be obtained. If I grant the order today, all the documents within the categories mentioned, covering a number of years, and extending over a wide range of materials, will be disclosed to FCFM, regardless of relevance. Furthermore, because Mr and Mrs Y are not parties to the proceedings before me today, and have not been made aware of them, no submissions have been made to me about any objections based on relevance or privacy or privilege or anything else.
30. So far as the criminal proceedings are concerned, the submission made to me is that the victim of a crime may not be sufficiently vindicated by civil remedies because they are not punitive. It is said that there is a recognised right to bring private prosecutions and, therefore, FCFM is fully entitled to ask the Court to allow it to obtain documents which might enable it to bring a private prosecution.
31. There is not an unlimited right to pursue a private prosecution. Parties to civil disputes obtain the redress allowed to them by the law and the procedures applied to civil proceedings. As a matter of public policy, the extent to which punishment has been allowed into that has been very limited (although there are exceptional cases in which, for example, punitive damages are awarded). Private prosecutions are always subject to the supervision of the public prosecution authorities which can, if they think fit, take over a private prosecution either in order either to take it forward as a public prosecution or to close it down. In the particular context of the offences which are suspected by FCFM in this case, which are insider dealing offences, those proceedings are subject to the particular scrutiny of the Director of Public Prosecutions under section 61(2) of the Criminal Justice Act 1993. They cannot even be started without the consent of the Director of Public Prosecutions. Current practice is that, if the prosecution passes the Full Code test, the Director of Prosecutions will take it over and, if it does not, he will not give consent. Although FCFM has also devised possible prosecutions on alternative bases under section 2 of the Fraud Act 2006 or as a conspiracy to defraud, these prosecutions would be based on the same facts as an insider dealing prosecution. It seems to me unlikely that FCFM would be able, effectively, to circumvent section 61(2) of the Criminal Justice Act 1993 by either of those routes. It is more likely that the Director of Public Prosecutions would take the same interest in the proposed prosecution framed as a fraud or a conspiracy as he would if it were brought under the Criminal Justice Act as the statutory offence of insider dealing, which seems particularly apt to the allegations being made.
32. FCFM's suspicions have already been referred to the public prosecution authorities. If those authorities think they justify further investigation and, in due course, prosecution, such a prosecution will take place. If they do not, then it will not. They are well placed to make a judgment about what the interests of justice require. For my part, I am not satisfied that FCFM needs the granting of this application or that it cannot otherwise obtain such justice as it may be entitled to.
33. I am also concerned by a point which I have raised which is Article 8 of the European Convention on Human Rights, providing a right to respect for private and family life. Article 8(1) says:

"Everyone has the right to respect for his private and family life, his home and his correspondence."

Article 8(2) says:

"There shall be no interference by a public authority in the exercise of this right except such as is in accordance with the law and is necessary in a democratic society and the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others."

34. When I put this to Mr Watson, he submitted that Convention rights would not be infringed if I were to make the orders sought because I would be securing the prevention of crime by enabling an effective prosecution. I do not think that is where the balance lies on the facts of this case.
35. This application is an ambitious attempt by a private company, in litigation elsewhere with two private individuals, to obtain their private records from third parties. I appreciate that it is proposed there should be a division between documents obtained in these proceedings, to be used only for the investigation of a possible private prosecution, and documents obtained in the civil action, which would be subject to the implied undertaking that they should only be used for the purposes of the civil action. However, the undertaking offered in the application before me is not to use any documents or information obtained for any purpose except the proposed private criminal prosecution "without the permission of the court". Equally, the implied undertaking in civil proceedings does not preclude an application under the CPR for permission to use disclosed documents and information in other proceedings. Of course, such permission would only be granted if it were appropriate.
36. A Norwich Pharmacal application for examination of documents which might or might not support a private prosecution against parties with whom the applicants are already in civil litigation is unusual. The only other case of which I have been made aware is the litigation reported in D Ltd v A [2017] EWCA Crim 1172 (see para 29 of that decision). That precedent does not, in my judgment, derogate from the clear indication by the House of Lords in Ashworth that the Norwich Pharmacal jurisdiction "is an exceptional one and one which is only exercised by the courts when they are satisfied that it should be exercised" (para 57, cited above). These orders are not granted as a matter of course.
37. Care must be taken not to encourage civil litigants to open up satellite litigation canvassing the possibility of criminal prosecution as a tactical move in their existing disputes. The breadth of any Norwich Pharmacal order will also require attention, especially since the third parties giving disclosure will not have the same interest in limiting disclosure to relevant documents, and to excluding privileged documents, or other sensitive documents, as a party to civil litigation has. The public prosecution authorities are well placed to conduct investigations which respect the rights of the suspect as well as the interests of justice and the rights and interests of alleged victims. Jurisprudence for striking the correct balance in Norwich Pharmacal proceedings in aid of criminal investigations by private persons or entities has not been developed. Although the authorities I have referred to show that Norwich Pharmacal applications may be available to support private prosecutions in an appropriate case, they will by no means always be appropriate, and in my judgment this is not an appropriate case.
38. I say this having considered only stage (i) and stage (ii) of the Mitsui test. I am also not convinced that FCFM has established that the respondents to their applications can truly be said to have been "mixed up in so as to have facilitated" the alleged wrongdoing, as required by stage (iii) of the Mitsui test. Hargreaves Lansdown is said in FCFM's skeleton argument to be "an unwitting party" in that, it is said, "Mr Y intended to purchase the Shares through his brokerage account with Hargreaves Lansdown". However, FCFM refused to accept that there was a binding contract, and did not transfer the shares or accept payment for them, so this did not happen. Similarly, Interactive Investor Services Ltd (or, at least, its predecessor TD Direct) is said to have been "mixed up in the wrongdoing in that it was through ISAs held by Mr and Mrs [Y] that the shares in [RRE] were to be bought". But they were not bought, and so they were not put into these ISAs. Finally, in relation to the mobile phone provider EE, it is said "it is likely to have been caught up in the wrongdoing as those numbers were likely the numbers used by Mr and/or Mrs [Y] to contact [JF] and to discuss the potential acquisition/insider information". This appears to me to be pure speculation. The reality, rather, seems to me to be that the application is made against all three respondents by way of a fishing expedition in order to see if a wrong can be proved against Mr and Mrs Y to the standard required by the Full Code for a private prosecution, rather than on the basis of evidence of actual involvement by any of the three named respondents to the extent required by stage (iii) of the Mitsui test.
39. For the reasons I have given, I will dismiss the application.

Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

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