The "Long Losing Streak" – Joshua v Renault and the French Blocking Statute

The FBS was enacted in 1968.[2]  It was originally intended to protect French national concerns by prohibiting French persons or legal entities from communicating to foreign public authorities documents or information "the disclosure of which may damage sovereignty, security or essential economic interests of France"[3] (emphasis added).  This was subject to international treaties and agreements (foremost amongst them, from 1970, the Hague Convention[4]. The prohibition was backed up by criminal sanctions, including imprisonment up to six months and fines.    

The FBS' scope was significantly expanded in 1980 with the introduction of Article 1 bis – in part, a reaction against the perceived excesses of pre-action discovery in US litigation [5] – which provided that:

"Without prejudice to international treaties or agreements and laws and regulations in force, it is prohibited for any person to request, search for or communicate, in writing, orally or in any other form, documents or information of an economic, commercial industrial, financial or technical nature for the purposes of establishing evidence in view of foreign judicial or administrative proceedings or in relation thereto" (emphasis added). 

In spite of the broad scope of Article 1 bis, the FBS has traditionally been seen as something of a dead letter; to date, there has been just a single reported conviction (a rather unusual case known as Christopher X, which involved a French lawyer fraudulently obtaining information from a French defendant company).    

The English courts' approach to the laws of other states which seek to prohibit parties from giving disclosure in foreign proceedings, such as the FBS, has been informed by two connected principles. First, that procedural matters (such as disclosure) shall by governed by English law as the lexi fori, such that a conflicting rule of foreign law shall not be applied. And second that, in exercising that jurisdiction, the court must balance the risk to a party of prosecution for breach of the relevant foreign law against the importance of the disclosure of the documents to the fair disposal of the English proceedings. [6] In the case of the FBS, given the scant evidence of successful prosecutions, the courts were historically not persuaded to order disclosure via the cumbersome Hague Convention route.[7]  

But recent developments appeared to be likely to have changed the analysis.  In 2016, the Service de l'Information Stratégique et de la Sécurité Economiques (the "SISSE") was created, whose functions include overseeing the application of the FBS.  This was followed by a 2019 report by Raphaël Gauvain MP recommending certain measures relating to the FBS, including the creation of a mandatory early warning mechanism. [8] In 2022, a decree was passed providing for compulsory reporting of possible disclosure requests falling under Article 1 and Article 1 bis to the SISSE, and establishing a procedure whereby the SISSE is obliged to issue an opinion on the applicability of the FBS' provisions (within one month of first report).[9] That opinion could then be used as evidence before foreign courts, where there are disputes relating to disclosure.  

Taken together, these steps appeared to signal a new – more proactive – approach to enforcement of the FBS, which one might have thought would lead to a different approach from the English courts. 

Joshua v Renault is the first case in the English courts to assess the relevance of the FBS to disclosure since 2022.  It did so in the context of the "dieselgate" litigation, and concerned certain orders as to sampling disclosure given against automobile companies domiciled in France.  

The defendants, against whom the disclosure orders were made, argued that they faced a real risk of prosecution should they give disclosure without the appointment of a commissioner under Chapter II of the Hague Convention.  They relied heavily on letters from the SISSE and summonses from the Public Prosecutor, which indicated that disclosure in this case would be a breach of Article 1 bis.

The claimants referred to the string of authorities prior to 2022 endorsing the position that the FBS did not necessitate using the Hague Convention route, arguing that there had been no "paradigm shift" since 2022, and that the risk of prosecution remained low.  

The Defendants' application for disclosure via the appointment of a commissioner under the Hague Convention was rejected.

On whether there was a likely risk of prosecution, the defendants did not persuade the judge that recent developments represented a genuine change in the prospects of prosecution:  

"…the fact remains – the Defendants have adduced no evidence that there has been a shift, still less a paradigm shift, when one moves past ministerial/executive words and into action." [10] 

In Cockerill J's view, a French court which did prosecute the defendant under the FBS would be in breach of comity, citing favourably Neuberger J's dicta in Morris v Banque Arabe et Internationale d'Investissement SA (No.1) that:

"It would, I think, be highly unusual if the French criminal authorities were to prosecute a party to an action such as this in England, in circumstances where he was required to comply with an order of the Court for production of documents for the purposes of that action." [11]

She also considered that certain characteristics of the case – including that it was a high-profile piece of consumer litigation – made it improbable that the French authorities would actually prosecute.

Even if there were a real risk of prosecution, disclosure into a confidentiality ring would negate the risk of prosecution. the balancing exercise of that risk against the inconvenience of the Hague Convention did not favour the defendants – not least because of potential delays and uncertainty connected with the Convention process.  

A French-domiciled company party to litigation in the English courts and subject to a disclosure order is in an unenviable position.  On its face, Joshua v Renault only entrenches the difficulties; even where the SISSE has given an opinion that there would be a breach of the FBS, this does not necessarily suggest that there is a real risk of prosecution.  And even if prosecution were considered a real risk, this may still not be enough to tip the scales in favour of the Hague Convention route.    

But Joshua may in fact provide some footholds for different outcomes in the future.  

Communications with the SISSE

In Joshua, the defendants drew attention to the letters they had exchanged with the SISSE, and in particular the fact that they had been told expressly by the SISSE that disclosure would be a breach of Article 1 bis and that it would be reported to the French prosecutors.  But Cockerill J took issue with the nature of the defendants' letters to the SISSE, observing that they were an imbalanced representation of the facts which led to an inevitable verdict of likely prosecution:

" … it cannot be said that they [the defendants' letters to the SISSE] overall read as a neutral or favourable depiction of the direct route. They are "questions expecting the answer no"; and it is no surprise that they attract the answer no."[12]

Leaving to one side questions of comity and the balancing exercise, it is possible that an opinion from the SISSE based upon a balanced presentation of the facts might leave a different impression on the English court.  

Comity

Cockerill J expressly acknowledged that comity (in essence, mutual respect between different legal systems and courts) was a double-edged consideration in this case.  English law may have been the lex fori, but:  

"Comity is an acknowledged important factor which can cut in either or both directions. This court will not lightly make an order which involves a risk of prosecution of its subject in another jurisdiction." [13]

Conversely a prosecution would itself breach comity, as a failure to respect the procedure of the English court.[14]

It follows from this that the English courts could make an order, even where there was a real (or perhaps even probable) risk of prosecution.  This has never actually arisen in the leading cases.  It therefore remains uncertain whether the English court would put a party in such an invidious situation.

The Hague Convention route may not be perfect, but it nevertheless represents a means of protecting a French party from prosecution under the FBS, which would allow the required disclosure to be made (or substantially made), albeit in a less convenient fashion.  A minor concession from the full measure of English procedure in order to respect the French law would appear very much in keeping with the requirements of comity, and the need to balance respect between the competing legal systems.

Disruption to the English proceedings

The appointment of a commissioner under the Hague Convention must be done by way of letter of request to the French Ministry of Justice via the High Court's Foreign Process Section (the "FPS").  There is presently no separate track for such letters, and a significant backlog at the FPS meant that, in Joshua, the Hague Convention route would have involved considerable delay, particularly with respect to the wider (rather than sampling) disclosure exercise.[15] This was a factor against the use of the Hague Convention in the balancing exercise, the Court recognising that although in this case the backlog in the FPS might be circumvented at its specific direction, this would not be an appropriate basis to proceed generally, due to its implications for other court users.

But this picture could change, particularly if a separate track were established for disclosure requests such as this. Matters might equally be sped up on the French side (which is quite plausible should the increased attention on the FBS brings with it greater attention on the Hague Convention process).   

Of course, the proof of whether there really has been a paradigm shift when it comes to the FBS will be in the prosecutions.  This is one to watch; Joshua may fast become outdated.