Judge criticises City solicitor for giving witness statement to journalist

Rolls Building: Solicitor apologises to judge

A High Court judge has strongly criticised a City partner who gave a journalist a copy of a witness statement made in support of an application for pre-action disclosure.

Mr Justice Andrew Baker described the behaviour of Ioannis Alexopoulos, partner at Signature Litigation, as a “very serious breach” of the rules, “neither sensibly explicable nor remotely excusable”.

Accepting an “unreserved and unqualified apology” from Mr Alexopoulos at a hearing earlier this month, Andrew Baker J awarded the defendants indemnity costs.

The High Court heard in The ECU Group v HSBC Bank and others [2018] EWHC 3045 (Comm) that ECU had indicated that it would assert “serious wrongdoing on the part of individuals at HSBC in connection with certain ‘stop loss’ orders placed by it”. HSBC “firmly refutes any wrongdoing”.

At a hearing this month, ECU sought permission for certain “collateral uses” of documents provided by HSBC in the course of pre-action disclosure, which the judge said were “subject to the very important rule of law that they may be used ‘only for the purpose of the proceedings in which [they were] disclosed’”.

The witness statement was made to support an application for a further order in relation to pre-action disclosure, and Baker J said it included a “detailed description of some of the contents of some of the disclosed documents and conclusions ECU may say should be drawn from them”.

ECU sought retrospective permission for the solicitor giving a copy of the statement to a journalist at FX Week, a weekly journal focusing on the foreign exchange market, in March 2018.

The judge said providing a copy of this to a journalist was “perfectly obviously prohibited collateral use” and there was “no reason at all” to grant retrospective permission.

“There is no prospect whatever that the court would have granted permission for it had it been sought prospectively.

“I do not think a solicitor with a competent, basic knowledge of the rule against collateral use, or who took a cursory glance at the White Book commentary on CPR 31.22, could reasonably have advised otherwise.”

Mr Alexopoulos told Litigation Futures: “I fully respect the judge’s ruling, including on the disclosure point. The judge has recognised that my error was not dishonest, and I have apologised unreservedly for it.

“This application related to the use of documents obtained through pre-action disclosure and does not detract from the underlying claims.”

The judge said: “Save that again I am not asked to, and do not, doubt Mr Alexopoulos’ honesty, there is really nothing that can be said to soften the criticism of ECU, and of Mr Alexopoulos, merited by the FX Week episode.”

Baker J said Mr Alexopoulos initially told the journalist she would need to apply to the court for a copy of the witness statement.

The judge said the journalist “interpreted this as an invitation simply to attend the Rolls Building and ask Commercial Court office staff” to see the document, a step she took at the beginning of March.

This was unsuccessful and she then went to Signature’s office, near to the Rolls Building, prompted by a member of staff at ECU.

“There, at Mr Alexopoulos’ direction, she was provided with a hard copy. Mr Alexopoulos has offered no real explanation for this, and indeed it seems to me inexplicable, given that earlier that day it had been his view that she would need the court’s permission and he was not told permission had been granted or even sought.”

The judge said Mr Alexopoulos spoke of wanting the journalist to be able to read the statement to prepare for the hearing of ECU’s application.

“But she had no need for that, even if there was an imminent hearing, i.e. a hearing within the next working day or two, which there was not. Fair reporting of the hearing (if in due course there was one) could only properly be based upon what was said during it, in open court.”

Baker J said Mr Alexopoulos provided a “responsive comment” for FX Weeks online news article, which the journal followed in a week’s time by a “main front page splash” in its hard copy edition.

The article was only taken down in August, “after the penny dropped for Mr Alexopoulos”.

The judge said ECU must pay “all of the respondents’ costs of the present application, assessed on the indemnity basis if not agreed”.

There were applications for retrospective permission in relation to other uses of the disclosed documents, which were granted with strict conditions, and prospective permission that was also granted on terms agreed between the parties.

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