NMC Health Plc (in administration) -v- Ernst & Young LLP (anonymity order)

Business and Property CourtsCommercial CourtHigh CourtAnonymity Order

Claim No. CL-2022-000218

In the High Court of Justice
Business and Property Courts of England and Wales
Commercial Court (KBD)

26 February 2025

Before:

Dame Clare Moulder DBE

Between:

NMC Health Plc (in administration)

-v-

Ernst & Young LLP

Order

UPON the Order of Mr Justice Foxton made on 5 May 2023 (the “Disclosure Order”).

AND UPON the Financial Reporting Council (the “FRC”) having opened an investigation into the audit by Ernst and Young LLP (the “Defendant”) of the financial statements of NMC Health plc for the year ended 31 December 2018 which has not yet concluded.

AND UPON paragraph 3 and schedule 1 of the Disclosure Order requiring the Defendant to disclose documents responding to the following Model C Requests: (a) “[c]omplete copies of…the FRC’s investigation report for the 2018 Audit (in each case including any draft or interim reports)”; and (b) “[d]ocuments generated by the process of interaction between EY and the FRC in connection with…the FRC’s investigation of the 2018 Audit, in each case insofar as relevant to the pleaded
issues” (the “FRC Model C Requests”).

AND UPON the Order of Mr Justice Picken made on 25 July 2024 by consent between the Claimant, Defendant and the FRC) (the “25 July Order”) in respect of documents disclosed to the Claimant by the Defendant pursuant to the FRC Model C Requests.

AND UPON the Defendant disclosing the documents set out in Schedule 1 to this Order on 30 September 2024.

AND UPON the Claimant having given notice to the FRC by letter dated 3 February 2025 pursuant to paragraph 1(c) of the 25 July Order of Mr Justice Picken that it intends to rely upon certain of the documents in Schedule 1 to this Order in support of an application in these proceedings.

AND UPON the Claimant issuing the disclosure application dated 5 February 2025 (“the Disclosure Application”).

AND UPON the application of the Defendants by application notice dated 21 February 2025 (the “Confidentiality Application Notice”) seeking protective measures in relation to the documents listed in Schedule 1.

AND UPON CPR 39.2 providing that a hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice.

AND UPON the court being satisfied that paragraph (c) applies in this case, namely that it involves confidential information and publicity would damage that confidentiality and that it is necessary to sit in private to secure the proper administration of justice.

IT IS ORDERED THAT:

  1. That part of the hearing of the Disclosure Application which refers to the documents listed in Schedule 1 to this Order shall be heard in private.
  2. Until further order (except to the extent that any or all of the documents listed in Schedule 1 subsequently become public documents), the documents listed in Schedule 1:
    2.1 shall not be available to non-parties without the permission of the Court, with any application for permission to be made on 14 days’ written notice to the Defendant and the FRC;
    2.2 if read to or by the Court, or referred to at a hearing, use shall not be permitted other than for the purposes of the proceedings, in accordance with CPR Rule 31.22(2).
  3. Any skeleton argument or witness statements that refer to the documents listed in Schedule 1 must also be clearly labelled as Confidential by the party preparing the document, and the restrictions at paragraphs 2.1 – 2.2 above shall apply to that document. If such a document is redacted so as to remove reference to the Schedule 1 Documents, the redacted version of that document will no longer be designated as Confidential, and the restrictions at paragraphs 2.1-2.2 above shall not apply to the redacted version of that document.
  4. A copy of this order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order.