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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Rawlinson And Hunter Trustees S.A. & Ors v Director of the Serious Fraud Office [2014] EWCA Civ 1129 (31 July 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/1129.html Cite as: [2015] WLR 797, [2014] EWCA Civ 1129, [2015] 1 WLR 797, [2014] CP Rep 45 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
Mr. Justice Eder
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MOORE-BICK
and
LADY JUSTICE GLOSTER
____________________
(1) RAWLINSON and HUNTER TRUSTEES S.A. (a company incorporated in Switzerland, in its capacity as trustee of the Tchenguiz Family Trust) and (2) VINCENT TCHENGUIZ and others |
Claimants/Appellants |
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- and - |
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DIRECTOR of the SERIOUS FRAUD OFFICE |
Defendant/Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Hollander
Q.C., Miss Rosalind Phelps and Mr. James Duffy (instructed by Stephenson Harwood LLP) for the appellants
Mr. Pushpinder Saini Q.C. and Mr. James Segan (instructed by Slaughter and May) for the respondent
Hearing date : 14th July 2014
____________________
Crown Copyright ©
Lord Justice Moore-Bick :
"The Judicial Review Work sat within the broader Investigation Work, in the sense that the judicial review proceedings were started at a point in time when the SFO's investigation into Kaupthing had already started and in circumstances where the SFO's investigation continued, albeit in a much reduced way, alongside the proceedings. A number of SFO employees found themselves engaged in both the Investigation Work and the Judicial Review Work.
The SFO is entitled to, and does, assert privilege claims in respect of both limbs of LPP, namely legal advice privilege and litigation privilege. However, in order to avoid debate as to the true scope of the privilege in the relevant context, and to avoid the burdensome task of identifying any documents, or parts of documents, which may fall within that privilege, the SFO does not, and will not, generally assert litigation privilege over internal communications within the SFO as regards its Investigation Work, save to the extent that such communications may also fall within the scope of legal advice privilege.
For the avoidance of doubt, our client does intend to assert its right to claim LPP over:
(a) communications with external legal counsel, and communications with internal SFO lawyers, in respect of issues where those lawyers were providing discrete legal advice to the investigation team in relation to the Investigation Work; and
(b) both the legal advice limb and the litigation privilege limb of LPP as regards the Judicial Review Work."
(i) Document SFO-042290, a briefing note for the Intelligence Unit written by Katie Badger ("the Katie Badger document");
(ii) Document SFO-038047, a statement made by a former employee of the SFO, Wayil Eisa ("the Wayil Eisa statement");
(iii) Documents SFO-019016 and SFO-032717, comprising a short string of emails passing between the Treasury Solicitor and the SFO relating to a draft order that was to be placed before the court; and
(iv) Document SFO-016237, a PowerPoint presentation in respect of which PII was claimed.
"Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court."
"Slade L.J.'s use of the phrase "obvious mistake" does not seem to me founded on any authority, but the use was repeated by Dillon L.J. in Derby & Co. Ltd in the passage which I have quoted. I respectfully agree with the usage. It is of the utmost importance in the context of litigation that a party should be able to rely on the discovery of his adversary. Exceptions to that ability must not extend beyond fraud and mistake. Cases of mistake are stringently confined to those which are obvious, that is to say those which are evident. This excites the question: Evident to whom? The answer must be to the recipient of the discovery. If the mistake was evident to that person then the exception applies, but what of the case where it was not evident but would have been evident to a reasonable person with the qualities of the recipient? In this context the law ought not to give an advantage to obtusity, and if the recipient ought to have realised that a mistake was evident then the exception applies. My opinion accords with that expressed by the learned editors of Phipson on Evidence (14th edition, 1990) page 525."
(i) A party giving inspection of documents must decide before doing so what privileged documents he wishes to allow the other party to see and what he does not.
(ii) Although the privilege is that of the client and not the solicitor, a party clothes his solicitor with ostensible authority (if not implied or express authority) to waive privilege in respect of relevant documents.
(iii) A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived.
(iv) In these circumstances, where a party has given inspection of documents, including privileged documents which he has allowed the other party to inspect by mistake, it will in general be too late for him to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief.
(v) However, the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud.
(vi) In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake.
(vii) A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and:
(a) the solicitor appreciates that a mistake has been made before making some use of the documents; or
(b) it would be obvious to a reasonable solicitor in his position that a mistake has been made;
and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief.
(viii) Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive; the decision remains a matter for the court.
(ix) In both the cases identified in (vii) (a) and (b) above there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances.
(x) Since the court is exercising an equitable jurisdiction, there are no rigid rules.
Document SFO-042290 (The Katie Badger report)
"By providing this disclosure in accordance with the CPR the SFO does not intend that there should be any waiver of the SFO's rights to withold from disclosure and/or inspection documents or information, including third party information, which may have been inadvertently disclosed in these Proceedings."
It was described as an "Intelligence Unit Briefing Note". In the opening paragraph Ms Badger recorded that she had been asked to provide the Intelligence Unit with a briefing note on potential offences and any jurisdictional issues that might arise in taking on the investigation of the activities of Kaupthing Bank and certain of its clients in the UK that ultimately led to the bank's collapse. The VT parties accepted that the document was privileged, but contended that it was by no means obvious that it had been disclosed by mistake. It contained nothing to indicate that Ms Badger herself was a lawyer; indeed, at a number of places she suggested that a lawyer should be consulted. The information the document contained was not of a sensitive nature. Moreover, parts had been redacted for relevance, suggesting that those acting for the SFO had considered it and were content to reveal the remaining contents. There was nothing in the manner of disclosure to suggest that a mistake might have been made.
Document SFO-038047 (The Wayil Eisa statement)
"By providing this disclosure in accordance with the CPR the SFO does not intend that there should be any waiver of the SFO's rights to withold from disclosure and/or inspection documents or information, including third party information, which may have been inadvertently disclosed in these Proceedings."
Documents SFO-019016 and SFO-032717 (The emails)
"Please also note that, due to time constraints it has not been possible for the SFO to undertake the level of quality control in relation to this tranche of disclosure as was undertaken for earlier tranches. By providing this disclosure in accordance with the CPR the SFO does not intend that there should be any waiver of the SFO's rights to withold from disclosure and/or inspection documents or information, including third party information, which may have been inadvertently disclosed in the Proceedings."
Document SFO-016237
"Those principles [sc. the principles set out in paragraph 16] seem to us also to apply to cases where the documents were not initially the subject of LPP privilege but in respect of which the disclosing party was entitled to claim PII. Once it is accepted that the party concerned is not bound to refuse to permit inspection of a relevant document we can see no reason why (in the absence of particular circumstances in a particular case) different principles should apply to the two situations."
"Where a litigant asserts that documents are immune from production or disclosure on public interest grounds he is not (if the claim is well founded) claiming a right but observing a duty. Public interest immunity is not a trump card vouchsafed to certain privileged players to play when and as they wish. It is an exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage in the litigation. This does not mean that in any case where a party holds a document in a class prima facie immune he is bound to persist in an assertion of immunity even where it is held that, on any weighing of the public interest, in withholding the document against the public interest in disclosure for the purpose of furthering the administration of justice, there is a clear balance in favour of the latter. But it does, I think, mean: (1) that public interest immunity cannot in any ordinary sense be waived, since, although one can waive rights, one cannot waive duties; (2) that, where a litigant holds documents in a class prima facie immune, he should (save perhaps in a very exceptional case) assert that the documents are immune and decline to disclose them, since the ultimate judge of where the balance of public interest lies is not him but the court; and (3) that, where a document is, or is held to be, in an immune class, it may not be used for any purpose whatever in the proceedings to which the immunity applies, and certainly cannot (for instance) be used for the purposes of cross-examination."
"If a Secretary of State on behalf of his department as opposed to any ordinary litigant concludes that any public interest in documents being withheld from production is outweighed by the public interest in the documents being available for purposes of litigation, it is difficult to conceive that unless the documents do not relate to an area for which the Secretary of State was responsible, the court would feel it appropriate to come to any different conclusion from that of the Secretary of State. The position would be the same if the Attorney-General was of the opinion that the documents should be disclosed. It should be remembered that the principle which was established in Conway v Rimmer [1968] AC 910 is that it is the courts which should have the final responsibility for deciding when both a contents and a class claim to immunity should be upheld. The principle was not that it was for the courts to impose immunity where, after due consideration, no immunity was claimed by the appropriate authority. What was inherent in the reasoning of the House in that case was that because of the conflict which could exist between the two aspects of the public interest involved, the courts, which have final responsibility for upholding the rule of law, must equally have final responsibility for deciding what evidence should be available to the courts of law in order to enable them to do justice."
" . . . when Lord Simon said that the privilege was one which could not be waived, he was referring to the situation after it had been determined that the public interest against disclosure outweighed that of disclosure in the interests of the administration of justice. When that is the determination which has been made, it is inevitable that the preservation of the document should follow so as to protect what has been held to be the dominant public interest. It is, however, unhelpful to talk of "waiver" in the different situations where the balancing of the conflicting public interests has not yet been carried out or where it has been carried out and the result requires disclosure. Although it is the practice to talk of conflicting public interests this can be misleading. The conflict is more accurately described as being between two different aspects of the public interest. If it is decided that the aspect of the public interest which reflects the requirements of the administration of justice outweighs the aspect of the interest which is against disclosure, then it is the public interest which requires disclosure."
"By rule 31.3 a party to whom a document has been disclosed has a right to inspect the document except in certain circumstances, which by rule 31.3(1)(b) include the case where the party disclosing the document has a right or duty to withhold inspection of it. Such a right may exist on a number of grounds including LPP and PII. However, in both those cases a party may choose not to rely upon LPP or claim PII."
and in paragraph 13 he identified the question before the court as being
" . . . in what circumstances a party who has inspected copy documents which were subject to LPP or PII, but which have been voluntarily, but mistakenly, sent to him for inspection must return them or may be restrained from using them in the litigation in which they were disclosed."
"38. Like all exceptions to, and modifications of, the strict rule of precedent, this rule must only be applied in the most obvious of cases, and limited with great care. The basis of it is that the proposition in question must have been assumed, and not have been the subject of decision. That condition will almost always only be fulfilled when the point has not been expressly raised before the court and there has been no argument upon it: as Russell L.J. went to some lengths in National Enterprises Ltd v Racal Communications Ltd to demonstrate had occurred in the previous case of Davies, Middleton & Davies Ltd v Cardiff Corpn 62 LGR 134. And there may of course be cases, perhaps many cases, where a point has not been the subject of argument, but scrutiny of the judgment indicates that the court's acceptance of the point went beyond mere assumption. Very little is likely to be required to draw that latter conclusion: because a later court will start from the position, encouraged by judicial comity, that its predecessor did indeed address all the matters essential for its decision."
Disposal
Lady Justice Gloster :
Lord Justice Longmore :
"of enabling the court to deal with cases justly and at proportionate cost."
They observed that Part 6 of the Civil Procedure Act (NSW) gave duties and powers of case management to courts in New South Wales in a similar way to that in which judicial case management has been encouraged (and even mandated) by our own CPR and they relied on section 56(1) of the New South Wales statute as conferring the Part 6 powers to ensure
"the just, quick and cheap resolution of the real issues in the dispute or proceedings."
They deprecated heavy satellite litigation of the present kind and said (para 45):-
"Although discovery is an inherently intrusive process, it is not intended that it be allowed to affect a person's entitlement to maintain the confidentiality of documents where the law allows. It follows that where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of that mistake and then order the return of the document, if the party receiving the document refuses to do so."