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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Property Alliance Group Ltd v The Royal Bank of Scotland Plc  EWHC 3341 (Ch) (20 November 2015)
Cite as:  WLR(D) 489,  4 WLR 3,  EWHC 3341 (Ch)
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Fetter Lane, London, EC4A 1NL
B e f o r e :
| PROPERTY ALLIANCE GROUP LIMITED
|- and -
|THE ROYAL BANK OF SCOTLAND PLC
David Railton QC and Adam Sher (instructed by Dentons) for the Defendant
Hearing dates: 5th and 6th November 2015
Crown Copyright ©
Mr Justice Birss:
(i) inspection pursuant to CPR r31.19(5) of certain audio recordings and transcripts of those recordings over which PAG has asserted privilege;
(ii) an order under CPR r31.20 granting permission for use by RBS of a document (the "Kilty/Rubens email") over which PAG claims privilege but which was inadvertently disclosed by PAG to RBS;
(iii) an order that PAG should re-review each claim to privilege made in its disclosed list of documents and produce a new list providing further particularity.
Issue (i) – the recordings and transcripts
"communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communications must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial."
"a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection."
(emphasis added by Lord Edmund Davies).
" […] The conversation that took place is admittedly non-confidential. In the circumstances here prevailing, it seems to me that it would be anomalous, contrary to the principle which drives legal professional privilege and an encouragement to inappropriate use of the client solicitor relationship, to conclude that the tape recording of the non-confidential conversation is privileged.
It is not necessary to consider whether or not a handwritten note taken of the conversation would be privileged in similar circumstances although I should say that there must be powerful arguments in support of the view that such a note taken for the purpose of giving it to the solicitor would not be privileged. […]
But the tape is not a note of the conversation, an impression of it or a description of it. It contains the actual conversation in electronic form. It evokes the voices of each party's agent, instantaneously encapsulating the non-confidential communications. It is the conversation. Kinchin was as much the author of it as Harris. The policy basis of legal professional privilege - confidentiality in the public interest - is wholly lacking when what is solely sought to be protected is the actual reproduction of the voices of the parties speaking in a non confidential mutual communication […]
The conversation itself is admitted not to be privileged. If the solicitor had been present it would not have been privileged. If Kinchin's statements had been made directly to Harris' solicitor, the conversation would not be privileged. The law should be slow to extend the boundaries of legal professional privilege so as to protect a known non-confidential communication simply because a record of it is made and deposited with the lawyer of one of the parties."
[p347 ln42 - p348 ln25]
"it is not open to a party to litigation to withhold production to a relevant document by claiming that the purpose for which it was brought into existence was to obtain legal advice in connection with contemplated litigation, when that purpose was deliberately concealed from the other party, and when the document contains and its conclusions are based on evidence obtained from the other party only by suppressing the purpose for which it was required." [p459 a]
Issue (ii) the Kilty/Rubens Email
"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."