John Szepietowski Reviews the case of R (on the application of KBR, Inc) (Appellant) v Director of the Serious Fraud Office (Respondent)

The Supreme Court heard an appeal for judicial review challenging the issue of a notice (the ‘Notice’)  pursuant to section 2(3) of the Criminal Justice Act 1987 (the ‘Act’) requiring the Appellant to produce documents it held outside the United Kingdom.

The Appellant’s case rested upon the following arguments. Primarily that the Notice was issued ultra-virus as the powers under section 2(3) of the Act do not extend to outside the jurisdiction of the United Kingdom. The Appellant company was incorporated in the United States of America, however, presents itself as a multinational collection of companies, known as the “KBR Group”. The Appellant company is the parent company of a number of subsidiaries in the United Kingdom, the most notable being the Kellogg Brown and Root Ltd. The Appellant company at no time indicated that it carried on business nor established a place of business within the United Kingdom.

The Serious Fraud Office (SFO) countered this argument by noting the implications of allowing a company within the United Kingdom to bypass the law by holding documentation on overseas servers thus out of the SFO’s reach. The SFO initiated their investigation into KBR Inc in the United Kingdom and also issued the Notice to KBR Inc in the United Kingdom despite the company being incorporated in the United States of America. Precedentially, the Respondent’s case was supported by the courts as the impact of restricting their powers under section 2 of the Act would detrimentally affect the investigation into and prosecution of serious fraud offences.

Furthermore, the Appellant’s legal representation put forth the argument that the Director of the SFO made an error of law when exercising his power under section 2 of the Criminal Justice Act. The Appellant refers to the Respondent’s power to seek Mutual Legal Assistance from authoritative bodies in the United States of America due to the Appellant’s place of incorporation. Rightly so, the SFO responded with the argument that this power was discretionary, therefore, they had no obligation to make use of that power. The Supreme Court sided with the Respondent citing R v Redmond 2006 in their concluding statements.

The Appellant’s concluding argument was that merely handing the Notice to a senior officer of KBR Inc who was transiently present in the United Kingdom failed to constitute effective service of the Notice under the Civil Procedure Rules as the territorial requirement is not satisfied. The Court disagreed with this stance, stating that the Appellant company was present within the United Kingdom as the senior officer had entered the jurisdiction for the purpose of representing the Appellant company at a meeting with the Respondent. Moreover, the court asserted that the senior officer communicated the contents of the Notice to the Appellant company and thus the location of the communication is irrelevant.

In conclusion, the Supreme Court rejected the Appellant’s appeal for a judicial review challenge to the SFO’s issuing of the Notice. Despite the efforts put towards utilising the court system, the parties seemingly resolved the matter out of court.

Please contact John Szepietowski at Audley Chaucer for details on this matter or any other legal topic February 2021.

Larissa Bourgi

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