P – Privilege
10/6/20
Considers principles of legal advice privilege [4]. On the facts a risk register prepared by in-house counsel, minutes of meetings and a script prepared by a lawyer for the chairman of a meeting, did not record legal advice and were not privileged.
1/6/20
PCP CAPITAL PARTNERS LLP v BARCLAYS BANK PLC [2020] EWHC 1393 (Comm)
Considers waiver of privilege [48] and the distinction between reference to the effect of legal advice as opposed to its contents [50]. On the facts, reference to legal advice in the Bank’s witness statements had amounted to a waiver [100].
1/5/20
BERKELEY SQUARE HOLDINGS v LANCER PROPERTY ASSET MANAGEMENT LTD [2020] EWHC 1015 (CH)
Explains the without prejudice (WP) rule which renders evidence inadmissible [39], and the exceptions to it [43]. Under the misrepresentation/fraud exception [49], statements made in connection with a mediation could be relied on to rebut an allegation that a deed had been entered into as a result of misrepresentation [52]. An estoppel exception applies where reliance has been placed on a statement made in WP correspondence [55]. The so-called ‘Muller’ exception applies where a claim or issue is only fairly justiciable on proof of WP negotiations [63]. There might be a further exception for relying on WP communications to prove independent facts but this is not clearly established [93].
11/3/20
DAWSON-DAMER v TAYLOR WESSING LLP [2020] EWCA Civ 352
Considers principles of joint privilege [26]. Whether joint privilege exists between trustee and beneficiary is a matter of procedural law, not substantive trust law [43] [47]. On the facts, joint privilege existed [53]. Also considers whether paper files are a relevant filing system within the meaning of the Data Protection Act 1998 [55]. The approach in Durant v Financial Services Authority (2003) to the meaning of relevant filing system is not compatible with later EU case-law. There are 4 questions to ask. First, are the files a "structured set of personal data"? Secondly, are the data accessible according to specific criteria? Thirdly, are those criteria "related to individuals"? Fourthly, do the specific criteria enable the data to be easily (or "readily" as the 1998 Act puts it) retrieved? [90]. If accessing the data requires the use of trainees and skilled lawyers, turning the pages of the files and reviewing the material identified, that is a clear indication that the structure itself does not enable ready access to the data [99].
3/3/20
ADDLESEE v DENTONS EUROPE LLP [2020] EWHC 238 (Ch)
Summarises principles to be applied on applications for disclosure of documents which would otherwise be privileged where it is claimed that privilege is lost under the so-called fraud exception [28], including the standard of proof [37] requiring the court to be satisfied that there is a strong prima facie case.
21/1/20
RAIFFEISEN BANK INTERNATIONAL AG v ASIA COAL ENERGY VENTURES LTD [2020] EWCA Civ 11
Instructions by a client to its solicitors were privileged and privilege had not been waived by a confirmation which the solicitors had been authorised by the client to give to the applicant bank, that they had been put in funds and had received irrevocable instructions to transfer the funds into an escrow account or to hold the funds pending agreement between the parties.
14/12/19
LYLE v BEDBOROUGH [2019] EWHC 3506 (Ch)
Considers principles applicable to waiver of legal advice privilege. On the facts, no waiver had taken place because most of the references to the advice had been nothing more than to the fact of having taken advice, and although some went into “broad brush detail” it was not very full and it would be unfair and disproportionate to hold that privilege had been waived by deploying such limited material.
25/2/19
BRIGGS v CLAY [2019] EWHC 102 (Ch)
Considers principles applicable to privilege attaching to without prejudice communications and waiver of privilege [42-74]. The fact that the communications had taken place was admissible and relevant to certain issues in the proceedings, but the content of the communications was subject to without prejudice privilege and was inadmissible.
15/1/19
RAIFFEISEN BANK INTERNATIONAL AG v ASIA COAL ENERGY VENTURES LTD [2019] EWHC 3 (Comm)
Instructions given to solicitors were privileged. Advice shared with third parties would only be privileged if shared on a confidential basis.
12/9/17
LACHAUX v INDEPENDENT PRINT LTD [2017] EWCA Civ 1327
The judge had been right to hold that documents were confidential and covered by legal professional privilege. The judge had also therefore been right to make orders that the documents should be returned, copies destroyed and restraining the defendants from disclosing or using them.
20/11/15
PROPERTY ALLIANCE GROUP LTD v THE ROYAL BANK OF SCOTLAND PLC [2015] EWHC 3341 (Ch)
The claimant made secret recordings of meetings with representatives of the bank to gather evidence for its claim. The existence of the recordings was mentioned in an email sent by a consultant to the claimant’s solicitors which had been disclosed by mistake. The claimant’s claim that he recordings were covered by litigation privilege was rejected. The bank had been misled to believe that the purpose of the meetings was for business. The dominant purpose of the meetings had not been the litigation. The email had been privileged and should not have been used by the bank without the court’s permission under CPR r 31.20 because it had been disclosed by mistake. It made no difference that it showed that there had been serious non-disclosure by the claimant of relevant documents.
18/6/15
PROPERTY ALLIANCE GROUP LIMITED v THE ROYAL BANK OF SCOTLAND PLC [2015] EWHC 1557 (Ch)
In a claim against RBS for LIBOR manipulation, the court considered principles applicable to claims for litigation, legal advice and without prejudice privilege as well as waiver of privilege. The court was not satisfied that the bank was entitled to rely on legal advice privilege for reports of its internal rate-setting investigation steering group. Those documents were therefore to be inspected by the court itself to determine the point. Although the bank had the right to withhold inspection of communications which were part of genuine settlement discussions with its regulators, the bank was not entitled to claim, or had waived, privilege for those communications because it had put in issue in the proceedings the fact that the regulators had not made certain findings against it.
15/4/15
BIRDSEYE v ROYTHORNE & CO [2015] EWHC 1003 (Ch)
Privilege can be waived by inadvertence and even if the person entitled to it is unaware of his rights.
10/7/14
KOUSOUROS v O”HALLORAN [2014] EWHC 2294 (Ch)
Considers the limits of joint interest privilege and loss of privilege. When a solicitor was jointly instructed but was later consulted on the mater in dispute by one party, those communications could be privileged.
10/7/14
SRJ v PERSON(S) UNKOWN [2014] EWHC 2293 (QB)
The court refused to make an order under s 37 Senior Courts Act 1981 requiring disclosure by a solicitor of the identity of a client. Considers whether a client’s identity can be the subject of legal professional privilege.
2/7/14
ROCHESTER RESOURCES LTD v LEBEDEV [2014] EWHC 2185 (Comm)
A draft complaint which a defendant sent to a claimant was a ‘first shot’ at settlement discussions and therefore covered by without prejudice privilege.
17/6/14
SC v YD [2014] EWHC 2446 (Fam)
Considers when a document attracts privilege as part of negotiations to settle. A draft agreement was not privileged as neither party had been seeking to compromise a dispute when it was prepared.
11/4/14
TCHENGUIZ v DIRECTOR OF THE SERIOUS FRAUD OFFICE [2014] EWHC 1102 (Comm)
Permission under CPR 31.20 was refused for documents inadvertently disclosed to be used in proceedings. It would have been obvious to a solicitor reviewing the documents that they were privileged and had been disclosed by mistake.
26/7/13
TCHENGUIZ v DIRECTOR OF THE SERIOUS FRAUD OFFICE [2013] EWHC 2297 (QB)
Considers when documents can be said to have been produced for the dominant purpose of litigation so as to be privileged and waiver of privilege by loss of confidentiality.
21/2/13
GROUP SEVEN LTD v ALLIED INVESTMENT CORP LTD, CH D
Considers fraud exception for disclosure of documents covered by legal professional privilege.
23/1/13
R (ON THE APPLICATION OF PRUDENTIAL PLC) v SPECIAL COMMISSIONER OF INCOME TAX [2013] UKSC 1
Legal advice privilege can be claimed only where confidential communications are between qualified solicitors, barristers, foreign lawyers, or in-house lawyers, and their clients. It cannot be claimed in respect of confidential communications between accountants and their clients for the purpose of requesting or providing legal advice.
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