Our Insights

On 21 January 2015 the Administrative Court (Laing J) dismissed an application for disclosure by the National Crime Agency (NCA) of letters of request for mutual legal assistance from the US.

The letters of request concerned fraud proceedings against a number of Nigerian defendants. The US had obtained a prohibition order (under Part 4A of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005/3184) freezing assets in the UK belonging to the defendants. The defendants applied for disclosure of the letters and argued that the letters lay at the heart of the NCA application; without them the application could not have been pursued at all, and they were therefore disclosable under CPR 31.14.

Laing J held as follows:

• The expectation was that communications between foreign states were confidential for reasons of international comity. It had been confirmed by the US Department of Justice that it wished to maintain the confidentiality of these letters of request. The reason for not ordering disclosure of letters of request, though in some cases it might yield to considerations of justice, was that such letters were confidential.
• There was no legislative requirement that letters of request should be disclosed. The question was whether inspection was necessary for the fair disposal of the action. The defendants had all the material that they needed in order to challenge the order.

National Crime Agency v Abacha [2015] EWHC 357 (Admin), 21 January 2015