On 5 May 2023 the Commercial Court handed down another judgment in the proceedings brought by the Kuwaiti Public Institution for Social Security in respect of the alleged bribery of its former Director General, which are listed for trial for 30 weeks commencing in March 2025. In PIFSS v Al Wazzan & others  EWHC 1065 (Comm) Henshaw J ruled upon the application of D1 and D2 to resist providing disclosure and inspection of documents held by any Swiss-based entity or individual or located in (or originating from and obtained under compulsion in) Switzerland.
The judgment contains a detailed analysis of Swiss principles of sovereignty and secrecy (in particular Swiss Criminal Code Articles 271, 273 and 293) and the status of and access to a Swiss criminal file (section E).
Applying the principles in Bank Mellat v HM Treasury  EWCA Civ 449and related case law (section D)Henshaw J held that: (a) disclosure and inspection would give rise to no real risk of infringement of Swiss law (section E); (b) there was no evidence of a real risk of prosecution or other prejudice (section F) and (c) in the exercise of discretion the application to resist disclosure and inspection should be refused (section G). The Court held open, for further submission, whether restrictions should be placed on access to the documents disclosed as a matter of comity, given the Swiss Criminal Court’s concern that disclosure of the contents of the criminal file to PIFSS could create a risk of transmission to the State of Kuwait, notwithstanding that the evidence did not establish an actual risk of transmission (paras. 161 and 166).