THE DANGERS OF ACCIDENTALLY DISCLOSING WITHOUT PREJUDICE OFFERS: THE TRIAL JUDGE WAS “HANDED A BOOBY-TRAPPED BUNDLE”
The judgment of Sir Jonathan Cohen in Koukash v Koukash [2022] EWHC 1001 (Fam) underlines the importance of keeping without prejudice offers out of the sight of the trial judge. A finding in a family case was overturned because one…
CLAIMANT COULD NOT OBTAIN AN INJUNCTION TO PREVENT THE USE OF A LETTER FROM AN EXPERT: AN APPARENT BREACH OF THE INDEPENDENCE PRINCIPLE
In Pickett v Balkind [2022] EWHC 2226 (TCC) HHJ Paul Matthews (sitting as a High Court Judge) refused the claimant’s application for an injunction to prevent the defendant relying on the contents of a letter from the claimant’s expert. That…
LITIGATION PRIVILEGE: WHEN DOES IT START? HOW DOES THE COURT DEAL WITH ISSUES ARISING? A HIGH COURT CASE
It is difficult to envisage a more apposite tribunal than Charles Hollander QC when matters relating to documentary evidence are in issue. This makes the reading of the decision in Kyla Shipping Co Ltd & Anor v Freight Trading Ltd…
WHEN A BARRISTER IS CALLED TO GIVE EVIDENCE AS TO WHAT HAPPENED AT (OR OUTSIDE) COURT: PRIVILEGE IN DRAFT WITNESS STATEMENT WAIVED AS A RESULT OF IT BEING SHOWN TO COUNSEL
In Axnoller Events Ltd v Brake & Anor (cross-examination on a draft witness statement) [2021] EWHC 2539 (Ch) HHJ Paul Matthews considered the unusual circumstances whereby a barrister gave evidence, and was cross-examined, on what happened at (or outside) a…
A SCHEME SETTING UP COMPENSATION FOR VICTIMS IS NOT SUBJECT TO WITHOUT PREJUDICE PRIVILEGE
There are many procedural issues considered in the judgment of TVZ & Ors v Manchester City Football Club Ltd [2021] EWHC 1179 (QB). Here I want to look at one – whether the trial judge should be informed of the…
MEDIATION PRIVILEGE UPHELD: “PARTIES MUST BE FREE TO CANDIDLY DISCUSS ALL OPTIONS FOR SETTLEMENT”
In E (A Child) (Mediation Privilege), Re [2020] EWHC 3379 (Fam) Mr L Samuels QC (sitting as a High Court Judge) granted an application to prevent a party relying on matters that took place in a mediation. “Parties must be…
LEGAL PROFESSIONAL PRIVILEGE PERSISTS AFTER DISSOLUTION OF A COMPANY: COURT OF APPEAL DECISION TODAY
In Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600 the Court of Appeal held that legal professional privilege survives the dissolution of a limited company. THE CASE The claimants wanted to bring an action against a…
MISTAKES ON A TRAIN: THE DANGERS OF LAWYERS WORKING ON THE MOVE
This post is caused by a Twitter thread this evening. I was travelling on a train and a solicitor sat beside me (who I did not know). I knew she was a solicitor because she took out a laptop and…
LAWYERS (& OTHERS) – WHY YOU SHOULD WATCH WHAT YOU SAY IN THE PUB: LEGAL PROFESSIONAL PRIVILEGE OUSTED BY INIQUITY OF ADVICE GIVEN
In the judgment today in X v. Y Ltd (PRACTICE AND PROCEDURE – Disclosure) [2018] UKEAT 0261 Mrs Justice Slade held that an email marked “Legally Privileged and Confidential” did not have the protection of professional privilege. The judgment also shows…
WHEN THE OTHER SIDE’S LAWYER SENDS THE COURT PRIVILEGED DOCUMENTS: THE DILEMMA OF THE PARALEGAL “WHISTLE BLOWER”
Several people have pointed out the judgment in Bruzas v Saxton [2018] EWHC 1619 (Fam) to me. This is a case that could have profound effects for the profession and the principles of legal professional privilege. This is the preliminary…
A PRIVILEGE TO READ : THE LAW OF PRIVILEGE 3rd EDITION: COUPLED WITH SOME RECENT EXAMPLES – TO SHOW WHY YOU NEED IT
The Law of Privilege is now in its third edition. I have been reading through it and planning a review for some time. I came across the decision, on BAILLI today in Fleming v East of England Ambulance Service NHS Trust…
JUDGMENTS CANNOT EASILY BE RE-OPENED: NOR IS WITHOUT PREJUDICE PRIVILEGE EASILY WAIVED
In Gillian -v- HEC Enterprises Ltd [2017] EWHC 461 (Ch) Mr Justice Morgan considered an application to reconsider and re-open an earlier judgment, The judgment contains interesting observations about attempts to “reopen” court decisions, the use and alleged waiver of “without…
DISCLOSURE, CASE MANAGEMENT, THE COLLATERAL USE OF DOCUMENTS AND PROPORTIONALITY
There are some passages in the judgment of Mr Justice Knowles in Tchenguiz -v- Grant Thornton UK LLP [2017] EWHC 310 (Comm) which highlight, succinctly, the nature of disclosure and the scope of “collateral use protection” in relation to documents…
STATING THAT YOU ARE NOT WAIVING PRIVILEGE IN A WITNESS STATEMENT IS FAR FROM CONCLUSIVE
There are several reasons litigators should read the judgment of Master Matthews in Coral Reef Limited -v- Silverbond Enterprise Limited [2016] EWHC 874 Ch. For the discussion of whether a Master is bound by the decision of a High Court…
LEGAL PROFESSIONAL PRIVILEGE: APPLIES TO LECTURE POWERPOINT NOTES
There is an interesting decision about the scope of legal professional privilege by the First Tier of the General Regulatory Chamber (Information Rights) in the Ministry of Justice -v- The Information Commissioner & Shaw EA/2015/0160. THE CASE The applicant made…
WAIVING PRIVILEGE IN WITNESS STATEMENTS: ANOTHER HIGH COURT DECISION
The question of waiving privilege in witness statements has been considered several times on this blog. The case of Commodities Research Unit International (Holdings) Ltd -v- King and Wood Mallesons LLP [2016] EWHC 63 (QB) shows that privilege can be…
PUTTING "WITHOUT PREJUDICE" ON LETTERS DOES NOT NECESSARILY MAKE THEM PRIVILEGED: AVONWICK -V- WEBINVEST IN THE COURT OF APPEAL
The case of Avonwick -v- Webinvest has been looked at before on this blog. Mr Justice David Richards held that letters asking for time to pay a debt were not covered by privilege just because they were headed “without prejudice”….
WHEN DOES MENTIONING LEGAL ADVICE IN A WITNESS STATEMENT LEAD TO WAIVER OF PRIVILEGE
In The National Crime Agency -v- Perry [2014] EWHC 3759 Mr Justice Wilkie considered the issue of when mention of legal advice in a witness statement leads to waiver of privilege so the legal advice should be disclosed. THE ISSUES…
PUTTING "WITHOUT PREJUDICE" ON LETTERS DOES NOT NECESSARILY MAKE THEM PRIVILEGED: AVONWICK -v- WEBINVEST CONSIDERED
Putting “without prejudice” on inter partes correspondence does not mean that the court will not look at them. This issue was considered by Mr Justice David Richards in Avonwick -v-Webinvest [2014] EWHC 3322 (Ch). The case also contains a short…