Berezovsky v Hine & Anor [2011] EWHC 1904 (Ch)

Case Nos.No.HC08C03549, No.HC09C00711[2011] EWHC 1904 (Ch)Venue Royal Courts of JusticeDate Wednesday, 6 th July 2011
Before
MR. JUSTICE MANN
Between
BerezovskyClaimantHine & AnorDefendantB E T W E E N:BORIS BEREZOVSKY Claimant- and -ANDREW DENYS HINE & JANET LUCY GIBSON(as the Joint Interim Administrators of the Estate ofthe Late Arkadi Patarkatsishvili) & Ors.DefendantsNo.HC09C00494BORIS BEREZOVSKY Claimant- and -ANDREW DENYS HINE(as the Joint Administrator of the Estate ofthe Late Arkadi Patarkatsishvili) & Ors.Defendants
Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com
MR. R. GILLIS QC (instructed by Addleshaw Goddard LLP) appeared on behalf of the Claimant.MR. J. ADKIN (instructed by Hogan Lovells LLP) appeared on behalf of the Family Defendants.
J U D G M E N T
[1]This is the judgment in an application which is technically a question relating to the inspection of disclosed documents. In the course of related proceedings in which Mr. Berezovsky, the claimant in these actions, is suing Mr. Abramovich, certain documents have been disclosed. Parts of the documents have been redacted on the basis of privilege and in this application, presumably on the assumption that the documents ought to be disclosed in these proceedings as well, the parties described historically as "the Family Defendants" seek to see the redacted parts.[2]The question that I address in this judgment arises in relation to other documents than those which I shall described in a moment, but I have been invited to decide the point in relation to the present category first so that the parties can then see whether and to what extent that is capable of deciding how the point is to be dealt with in relation to the other categories. The issues which arise in this application raise questions which are capable of applying to a number of situations where a party interviews or proofs a potential witness.[3]I note that nothing in this application turns on relevance. Non-relevance has not been asserted by Mr. Berezovsky, who seeks to redact the parts of the presumably relevant documents. I shall therefore assume relevance. During the hearing it transpired that Mr. Berezovsky might wish to challenge relevance. I say nothing in this judgment as to whether he would or would not be allowed to do so after this judgment.[4]The factual background to this application can be shortly stated and can be conveniently outlined by cross-referring to previous judgments. In these proceedings Mr. Berezovsky seeks to claim an interest in immensely valuable property and shares existing in other jurisdictions. He makes a claim by way of trusts and other mechanisms. He makes his claim in the present action and two other actions which are being run with it against the personal representatives of Badri Patarkatsishvili ("Badri"), those interested in Badri's estate, that is to say the Family Defendants who have made the running in this application, and certain other individuals and entities whom I need not identify for these purposes.[5]The overall background to this application can, so far as relevant, be seen from the narratives in my judgment [2009] EWHC 1176 and in a joint judgment given by myself and Gloster J. in the related action in which Mr. Berezovsky sues Mr. Abramovich, [2010] EWHC 2044. Because there are overlapping issues between the three actions with which I am concerned and the other action ("the Abramovich action") the cases have been jointly case-managed on various occasions hitherto. Overlapping issues have been defined and directions have been given in both sets of proceedings to ensure that, where appropriate, overlap issues are decided in one case and one case only. The effect of that is the defendants in the proceedings in the Chancery Division have the right to participate on the overlap issues in the Abramovich proceedings.[6]The Abramovich proceedings came first. They were under preparation when Badri, who died in February 2008, was still alive. For the purpose of those proceedings Mr. Abramovich's lawyers sought to proof Badri, presumably on the footing that he had relevant evidence to give. Instructions for a proof were given at various meetings over a period which I need not define. During the course of the Abramovich proceedings Gloster J. ordered the disclosure and inspection of the records kept by the solicitors of those proofing meetings and, for reasons which I do not need to go into, ruled that they were not privileged from disclosure. The records of the meetings have accordingly been disclosed. I have seen them briefly; together with transcriptions of manuscript notes they occupy roughly a lever arch file.[7]It is apparent from what has been disclosed that various sections, albeit a very small proportion of the notes, have been redacted. It is the redaction of those elements which has given rise to the present application. The right to redact is propounded by Mr. Berezovsky on the grounds that those redacted items are privileged. In essence, it is said that they amount to the communication of privileged material concerning the merits of the Abramovich proceedings, or facts in the Abramovich proceedings which were communicated in the course of a proofing session in order to facilitate the proofing session. The way the point is made by Mr. Berezovsky appears conveniently, and I think exclusively, in two places. The first is para.14 of the skeleton argument of Mr. Richard Gillis QC who appears for Mr. Berezovsky. In para.14 he says this:
"14. In addition, they seek specific disclosure of unredacted copies of the documents which Mr. Berezovsky has disclosed pursuant to the order of Mrs. Justice Gloster dated 7 April 2011 in the Commercial Court action against Mr. Abramovich. ("
The redacted materials") These documents comprise the notes of the lawyers instructed to prepare the claim against Mr. Abramovich of their witness proofing sessions with Mr. Patarkatsishvili (paragraph 3 of the draft order). The documents were redacted to remove extracts that recorded advice on the merits or communications between Mr. Berezovsky and his solicitors regarding the conduct of proceedings. Mrs. Justice Gloster's order did not require disclosure of this privileged information as it did not record or reflect solicitor interviews with Mr. Patarkatsishvili in relation to the subject matter of the Commercial Court action." That is the short form of analysis which Mr. Gillis sought to bring to bear at that stage.[8]The evidence in support of the privilege claim appears in paras.32-34 of a witness statement signed by Robert David Harvey on 29th June 2011. It reads as follows, under the heading "The records of interviews with AP - paragraph 3 of the draft Order": “32 Paragraph 3 of the draft Order relates to certain notes of interviews with AP conducted by solicitors acting for Mr Berezovsky. Mr Berezovsky and Ms Gudavadze were present at certain of those interviews. These notes were disclosed to Mr Abramovich in accordance with the Order of Gloster J, in the. Abramovich Action, dated 7 April 2011. They were also disclosed to the Chancery Defendants in the same redacted form. 33 All the documents within this category are documents which record or reflect the contents of interviews or conversations between AP and Mr Berezovsky's former solicitors in the Abramovich Action, for the purposes of obtaining information and evidence for the Abramovich proceedings. The documents are handwritten notes and typed transcripts of those notes, and draft 'proofs of evidence' subsequently prepared by certain of the lawyers involved. There has never been any dispute that, but for the waiver of privilege found by Gloster J to have occurred (as a result of the evidence submitted to the Commercial Court on behalf of Mr Berezovsky in defending Mr Abramovich's application to strike out Mr Berezovsky's claim against him) these documents would have been privileged. This is the context in which information was being provided by AP to Mr Berezovsky's lawyers. 34 The interviews of AP with the lawyers instructed by Mr Berezovsky to prepare the proceedings were obviously situations of confidence both in terms of the formality of the sessions and the potential impact on Mr Berezovsky of disclosure of their contents. Some of the meetings with AP and Mr Berezovsky's lawyers were attended by Mr Berezovsky and others and went beyond interviewing AP about the Abramovich Action. The documents were redacted to remove extracts which clearly record solicitors' advice on the merits or which record communications between Mr. Berezovsky and his solicitors about the conduct of the proceedings."[9]The form of application made by the Family Defendants is an order that Mr. Berezovsky provide to the Family Defendants in effect unredacted copies of that which they have already seen. They also seek an order or determination that the claimant shall not be entitled to decline to give disclosure of those documents on the basis that any material is privileged. Despite this form of application, this application is technically an application for inspection of what amounts to disclosed documents. We get there by a slightly informal route, but that does not matter. That is the essence of the application. The resistance to inspection is the claimed privilege in the material. Thus we arrive at the question I have to decide.[10]I decided this on the basis of the limited facts as to the genesis of the material as set out in the witness statement which I have just read. They are not remarkable facts, and they are not detailed facts. They are the sort of facts that may well arise in a number of proofing sessions. It is quite likely that in a number of sessions where a witness is to be proofed, the solicitor taking the proof will, during the course of the proofing, disclose some privileged material. The question arising in this case is to what extent is the witness and anyone close to the witness or anyone with whom the witness is privy entitled to rely on any waiver of privilege in relation to that privileged material, or otherwise entitled to make use of that it.[11]Thus the broad question is as to what extent Mr. Berezovsky can claim to maintain privilege in relation to the material thus disclosed. Actually it turns out at the end of the day the question to be is narrower than that, because by the end of submissions it was not, I think, suggested by Mr. Adkin who appears on behalf of the Family Defendants that privilege was lost generally in relation to privileged material which was otherwise disclosed at the meetings in question. The Family Defendants accepted that the starting point is that Mr. Berezovsky could claim privilege against most of the world. The question is as to what extent that is different in relation to Badri and the Family Defendants by virtue of the disclosure that took place at the proofing meetings. There is also a question of whether Mr. Berezovsky can assert privilege against one but not the other of(a) the Family Defendants and(b) Badri. If he can assert privilege fully against Badri, then he can assert against any other party in this action. If he cannot assert privilege against Badri, then it is accepted by Mr. Gillis that he cannot assert it against his personal representatives who are parties to this action, but Mr. Gillis says that the privilege can still be maintained against the Family Defendants in these proceedings and a fortiori as against all other parties to the various actions which are currently being managed and tried together.[12]I should say that two of the parties to the present Chancery Division proceedings are administrators of the estate of Badri (the “Interim Administrators”), appointed by this court (and indeed by me) at an early stage in these proceedings, albeit after proceedings had started with the Family Defendants having been joined to represent the family interests.[13]The material in question obviously started life as being privileged. It was a reference to legal advice or even the conveyance of legal advice as to the merits of the action brought against Mr. Abramovich and/or as to tactics in the Abramovich action. That is the sort of material which would normally be subject to legal professional privilege and nobody has sought to say there is anything special about the material in this case which would deprive it of that inherent quality. So I need to decide the extent to which, given the starting point of privilege, that privilege can still be asserted against Badri, and if it cannot, whether it can still be asserted against the Family Defendants who are those taking the point in the application before me.[14]In outline, the position of the parties is as follows. Mr. Adkin said that privilege was based on confidence. If confidentiality was lost in any material as against Badri, to that extent privilege can no longer be asserted. It thus could not be asserted against the Interim administrators and it would be anomalous if it could be asserted against the Family Defendants who, in the circumstances of this case, have exactly the same interest as the Interim Administrators and effectively represent the estate; they have, as will be common ground, effectively made all the running on behalf of the estate for the purpose of these proceedings. This last step in his reasoning was not supported by any reasoning at first beyond saying that it could not be right to say that privilege could be maintained against them but not against Badri. It was in essence an appeal to instinctive gut reaction, although the argument did eventually develop beyond that.[15]For Mr. Berezovsky, Mr. Gillis accepted that privilege was based on confidentiality but disputed what he detected as being the initial premise of Mr. Adkin's argument. What he identified as being that premise was that once the privilege was lost against Badri, it was lost against the whole world and forever. Mr. Gillis said that authority demonstrated that one could have communication to limited people for a limited purpose and that such a communication preserved the privilege against the rest of the world, and indeed preserve the privilege against the person in question beyond the strict use of the information for the limited purpose for which it was conveyed. That is what has happened in this case. There was disclosure to Badri for the limited purpose of proofing. It was not allowed for any other purpose. If he had been given documents containing the privileged material, then Mr. Berezovsky could have compelled their return. At its highest Mr. Gillis' case was that if Badri were still alive Mr. Berezovsky could have prevented him from stating in court in evidence, even in these proceedings, what he had been told in the proofing meetings so far as it included privileged material.[16]I agree that the starting point for a claim of privilege is confidence. What is commonly called "a waiver of privilege" is frequently based on the loss of that quality of confidentiality. That much is apparent from Gotha City v Sotheby's [1998] 1 WLR, 114. I do not need to set out the facts of that case, but at p.118 Staughton L.J. said as follows. "Now of course legal professional privilege could come to an end. It can end by waiver, although some say that a more correct description is loss of confidentiality. To my mind it does not matter for present purposes which is the correct rationale for the ending of privilege. That appears in a number of authorities and indeed it is not, it would seem, any longer controversial in this case. The first is Attorney General v Guardian Newspapers No.2 1990 1 A.C. 109 where Sir John Donaldson M.R. said at p.177, '3. As a general proposition, that which has no character of confidentiality because it has already been communicated to the world, i.e. generally made available to the relevant public, cannot thereafter be subject to a right of confidentiality ... However, this will not necessarily be the case if the information has previously only been disclosed to a limited part of that public.'."[17]He went on to say, lower down the page:
"Next we were referred to Style & Hollander on Documentary Evidence, 6th Edition 1997, p.224: 'If the document is read out on the television news or in open court, then confidentiality is lost once and for all. No further question of privilege arises. But it is important to bear in mind that it is possible for a document to cease to be confidential as between some parties and not others. If A shows a privileged document to his six best friends he will not be able to assert privilege if one of those friends sues him, because the document is not confidential as between him and the friend. But the fact six other people had seen it does not prevent him claiming privilege as against the rest of the world.'."
[18]The same point was made in a decision of mine in USP Strategies Plc v London General Holdings 2004, EWHC 373 Ch. at para.19.[19]From this material it is apparent not merely that privilege is based on confidentiality and loss of privilege on loss of confidentiality; it is also apparent that there can be loss of privilege on an individual basis. That is to say, privilege could be lost vis-à-vis certain people but not the rest of the world. So on that footing there could be a loss of privilege vis-à-vis Badri and not against anyone else. At the end of the day, that was not disputed by anyone in the application before me. It is where the Family Defendants' case can be said to start and finish so far as Badri and the estate taken together are concerned. They say there has been a waiver in relation to all of them and that is the end of that.[20]However, Mr. Gillis relies on further possible qualifications. He said that the extent of the waiver of privilege can be more circumscribed than being confined to one person. It can be limited not only as to persons but also as to purposes. In my view, he is right about that, and there are three good examples of that in the authorities.[21]The first is British Coal Corporation v Dennis Rye Limited [1998] 1WLR, 113. In that case it was held that there was no waiver of privilege in documents which had been disclosed to the prosecution for the purposes of a prosecution by an alleged victim of a wrong, and where the prosecution in the course of a criminal trial showed the material apparently with the consent of the owner of the material to the defendant in that criminal trial. It seems that the purpose of the disclosure was so that the prosecution could fulfil its obligation of disclosing relevant unused material. It was held that that disclosure did not cause a loss of privilege generally as regards the person to whom it was disclosed. The purpose of the disclosure was the sole purpose of the waiver of privilege and the waiver of privilege did not go beyond that purpose. Use by that person for other purposes could be restrained. That is a rather special case but it is an example of an intelligible principle.[22]The second case was Bourns Inc v Raychem Corporation [1999] 3 All E.R., 154. In that case legal advice was disclosed to the court in the process of the exercise of taxation of costs. It was held that the advice could not be used further in other proceedings in other jurisdictions. The use of the disclosed advice by the adverse party to whom it was disclosed was limited purely by the purposes for which the disclosure was given; that is to say the taxation proceedings. That prevented its use in other proceedings in the United States. Again, that decision was based effectively on sensible public policy, but it demonstrates the same principle.[23]The third example is B v Auckland District Law Society [2003] 2 A.C. 736, a decision of the Privy Council. In that case clearly privileged material given to counsel acting for a regulator on a very limited basis was held to retain its privilege when use was sought to be made of it outside that very limited purpose. That again is a rather special case on its facts. It arises because of the strict and express limits on the waiver of privilege.[24]All of those cases therefore establish that a disclosure of privileged material and the effect of any waiver or loss of privilege can be confined to one person and further confined to one purpose. A communication of privileged material can take place in circumstances in which the extent of any waiver of the control that would otherwise arise from its being privileged is circumscribed in a manner determined by the circumstances of the communication. In Rye the communication was largely beyond the powers of the privilege owner to restrain. Circumstances required that the loss should be treated as being for very limited purposes only. Further use was restrained. In Bourns the disclosure was for one purpose and one purpose only. The interest of justice operated to make sure it was not extended beyond that. Accordingly further use by the recipient can be restrained in accordance with the terms, express or implied, of the communication, or the proper basis of the communication if factors other than implied agreements are appropriately deployed.[25]That is the basis of the decisions in Rye, Bourns and Auckland. It will be noted that the facts of those cases might be thought to be unusual if not extreme, but they rely on principle, not the extremity of their facts. In appropriate cases all further use by the recipient can be restrained and delivery up of documents can be ordered.[26]Mr. Adkin sought to rely on a distinction between a waiver of privilege of already existing information and a case where the individual is somehow party to the creation of privileged information in the first place. He said in the latter case there can be no privilege as against the individual and so no question of the limitation of any waiver of any privilege. He said that the present case falls into that latter category. I do not accept this. In fact I found the distinction hard to grasp. But in any event, it does not apply to this case on its facts. The information in question was in a real sense information already existing and therefore information which falls into the first of Mr. Adkins' category in any event. It might be that information falling into the latter category existed in relation to meetings attended by Mr. Berezovsky but in my view the distinction is still artificial. There should not be a different result or a fundamentally different analysis depending on whether Mr. Berezovsky was told first of the relevant material with repetition later to Badri, or whether they were both told at the same time. The key is that Badri has received privileged information and the enquiry is as to what restraints that imposes upon him.[27]Accordingly the question becomes the extent if any to which the disclosure of privileged information to Badri in the proofing exercises was accompanied by an explicit or implicit restriction on its use. There is actually no evidence of any explicit restrictions so the question is really one of implicit restrictions. Again, as I have observed, the evidence on all this is really rather thin. I have to assume the general format and purpose of a proofing session.[28]One thing is clear to me: Badri must have been under some implicit restraints. The position of a witness who is given some confidential information was considered by Mr. Justice Lawrence Collins, as he then was, in Istil Group v Zahoor [2003] 2 All E.R. 252. At paras.62 and 63 he said as follow, citing earlier authority:
"62. In that case the Court of Appeal held that the same principle applied to expert witnesses. But that did not mean that the witness could reveal the communications which he had had with a party. "
Many of the communications between the solicitor and the expert witness will be privileged. They are protected by legal professional privilege. They cannot be communicated to the court except with the consent of the party concerned. That means that a great deal of the communications between the expert witness and the lawyer cannot be given in evidence to the court. If questions were asked about it, then it would be the duty of the judge to protect the witness (and he would) by disallowing any questions which infringed the rule about legal professional privilege or the rule protecting information given in confidence - unless, of course, it was one of those rare cases which come before the courts from time to time where in spite of privilege or confidence the court does order a witness to give further evidence. “63. I do not doubt that in the hands of the claimants and Schillings [who can be viewed as the witness for present purposes] all of the relevant e-mails were covered by litigation privilege. All of them obviously came into existence for the purpose of the preparation of these proceedings. The claimants and Schillings would plainly not, in the ordinary course, be required to produce them, and they would not normally come to the attention of the defendants. I do not consider that for this purpose (whatever may be the position in relation to an application for an injunction to restrain the use of material disclosed by the witness, to which I shall revert) it is not a condition of privilege that the witness or proposed witness expressly (or perhaps even impliedly) agrees to keep the communication in confidence. An unsolicited letter from a solicitor to a witness to a traffic accident asking him whether he saw the accident, and asking him to give evidence, would undoubtedly be privileged from production, but I doubt whether the witness would be under any obligation of confidentiality."[29]It is therefore apparent that in certain circumstances a witness who receives privileged information will have to acknowledge that privilege although not in every circumstance. It is only where confidentiality attaches to the communication that he will. How is it to be determined that such confidentiality attaches? In my view, as is apparent in Istil, it will very often be obvious that confidentiality attaches . At para.95 in Istil Mr.

Justice Lawrence Collins said:

"95. I accept that the communications to ISTIL Friend were intended to be confidential (as is obvious) and that the circumstances would have made ISTIL Friend aware of that..."
[30]That demonstrates, if it needs demonstrating, that it is the obviousness of a need for confidentiality that will impose the relevant duty of confidence. The same point is apparent from Gotha at p.122. Accordingly, in circumstances in which it would be obvious to a witness that material is confidential, confidentiality will be imposed and there will not be a blanket loss of privilege on the grounds of a blanket waiver of confidentiality. So the position is that some communications with witnesses may be confidential in the hands of the witness and some may not. Whether it is confidential or not must depend on the nature of the information and the circumstances of the communication. If the witness is shown some obviously privileged information or becomes privy to it, then the use that the witness can make of that information is likely to be restricted in use. It is likely that it cannot have been intended by either the provider of the information or the witness that the information communicated purely for the purpose of proofing becomes information which that witness is allowed to use generally. He or she could not go out and broadcast to the world what the content of the information was merely because he wished to do so. In terms of confidentiality the information has lost its confidential quality vis-à-vis the witness, and to some extent, but not vis-à-vis the rest of the world and not generally.[31]So far as Mr. Adkin's submissions presuppose or rely on a more general release in these circumstances, I hold that they are wrong. Albeit very generally described, it seems to me that the information in the present case was sufficiently obviously privileged that any witness receiving that information would realise he was not free to make whatever use of that information he wished. It remained confidential and the witness would have realised that.[32]The question is therefore what limits if any were actually imposed in the present case. I do not propose to answer that question by actually prescribing the detailed route and position of a detailed fence which would answer all possible questions which might arise in this area. That would be dangerous and probably impossible to do. The question which arises in this application is whether Badri will be entitled to use each piece of the relevant information in this action for the purposes of his defence in this action were he alive. For these purposes I treat all the redacted information as having the same quality; that is to say that it was confidential, privileged information given to him for the purposes of the proofing exercise only. I assume confidentiality and although the evidence is thin, I find that Badri would have realised that the information was confidential as I have observed.[33]Mr. Gillis' first position is that Badri would not have been entitled to use the information at all. He was given the information for proofing purposes and cannot use it thereafter. If Badri were alive he could be restrained from using the information even if he could remember it. A fortiori he is not entitled to be provided with a record of it. The position is, according to Mr. Gillis, like the position was in Rye and Bourns. I consider that that position is too extreme. Whilst such a position is conceptually possible, it would need clearer evidence to establish it exists in the present case. In the three cases to which I have referred, the circumstances were special and the position was clear. In Rye the disclosure was hardly with the real consent of the privilege owner at all. It probably had to allow the disclosure of the information in order to satisfy the prosecution's need to disclose unused material. In Bourns there was a clear limitation for a very specialist purpose, although I acknowledge in this case the privilege owner had more of a choice and more of a clear interest in disclosure. In Auckland there was a clear limited basis for the disclosure and it would have been quite contrary to all principles of fairness to allow the disclosure to go wider.[34]In the present case there is no parallel element of clarity and specificity imposing a total restriction on use by Badri. It would be remarkable if there were. It would amount to Mr. Berezovsky saying, and Badri accepting:
“I would like you to help me by giving me a proof and meeting with my solicitors for that purpose. In the course of that I will tell you some privileged things which it suits me to tell you for my own purposes so that I can get the proof, but they are confidential and you must never use that information; and you cannot even use it in the event of our falling out, my suing you and the information being relevant to that action.”
I do not believe that that would represent the natural implied basis on which the information would be received and, crucially, given on the facts of this case. A potential witness might readily accept some constraints on further dissemination of the information, but not to the extent just described. I do not overlook the fact that Badri and Mr. Berezovsky were long-time friends and associates, but that does not affect the likely implication. It merely reflects the fact that the parties would not actually have contemplated the circumstances in which the question might arise. If it be said that it is obvious that a friend would give that undertaking to another friend, the proper counter would be first that friends would not have that discussion, and second, if the premise is a future falling out, the recipient friend would not be likely to give the wide undertaking or the wide agreement that Mr. Gillis' case requires for success.[35]Accordingly, I do not think that the circumstances require the broad and stringent limits which Mr. Gillis' case logically requires. If Badri were alive he could not be restrained from using the information in his own interests when in dispute with Mr. Berezovsky. Accordingly his personal representative (the Interim Administrators) cannot be so restrained either, and no-one has suggested that a record of what passed at the meeting is in any different position so far as the Interim Administrators are concerned from what was actually said.[36]Therefore, whatever the precise constraints may be, I do not consider they extend to circumstances in which there is litigation between the party and the witness in which the witness for his own proper - and I stress "proper" - purposes in that litigation wishes to make use of the information which the claimant once willingly parted with. That would not be within any implicit constraints on the use of the privileged and confidential information. No sensible witness would ever agree to that and Badri cannot be taken to have agreed to it either. What is proper in any particular case depends on the facts of the case. This is of course in line with the extract from the text book approved by Staughton L.J, in Gotha City in which he refers to a recipient friend being able to rely on the information.[37]Mr. Adkin sought to invoke the principles demonstrated by the line of cases of which Paragon Finance Plc v Freshfields [1999] 1 WLR 1183 and Lillicrap v Nalder & Sons [1993] 1 WLR, 94 are the leading examples. They are cases in which it was held that a client who sues a former solicitor in negligence waives privilege in what would otherwise be privileged material so far as relevant to the matter in respect of which he sues. Those are rather different cases. As such I find that they cannot be directly applied to this area of the reasoning. In those cases, the act of waiver is the actual bringing of the proceedings to which the communications are relevant. That is not this case. The act of waiver is remote in time and purpose from the proceedings to which the communication has become relevant. There might be thought to be resonances with what I have held at some stages of the argument, but no more than that. I do not think that that line of cases assists Mr. Adkin.[38]Thus far, therefore, I hold that the width of such restraints as Badri will have been under are not so great as to prevent Badri using the information when sued. So to that extent the privilege cannot be claimed against Badri. That being the case, Mr. Gillis concedes the next stage in the argument. He accepts that if the privilege could not have been claimed against Badri, it can now not be asserted against his estate and in particular the Interim Administrators who now represent the estate. That stage in the reasoning therefore does not have to be argued.[39]However, that does not deal with the third and rather more difficult question. In the light of the answers to the first two questions, can privilege be claimed against the Family Defendants? Mr. Gillis said that it could. The effect of the waiver of the privilege is limited in that the Interim Administrators, as I have held, are entitled to have the documents in question, but they are no more free to disseminate the information in those documents now than Badri would have been when he first obtained the information.[40]Mr. Adkin's first answer to this was to rely on a version of what might be called the McEnroe principle: he said that it simply could not be right that the Family Defendants could not see the information in this case, though without initially offering a reasoned principled case why it could not, and relying on little more than an implicit challenge to the insanity to the contrary proposition. Then he attempted to reason on the basis that the right to see the information was effectively a property right which vests in the estate. Since his clients were the beneficiaries of the estate, it was their property right and they should see the information as well. I do not think that this analysis of the matter in terms of property rights is either attractive or correct. It falls at the first hurdle - the right is not a property right. The information is merely information which may or may not be made available to the Interim Administrators and it simply cannot be treated as feeding through as some sort of property right which the Family Defendants can now have the benefit of.[41]Last, and after some debate with the court, and only in his argument in reply, Mr. Adkin suggested that the answer to the point lay in the Paragon line of cases to which I have referred. He said that by choosing to sue so many defendants in the same action, including the Interim Administrators, Mr. Berezovsky had subjected his relationship with Badri to scrutiny which gave rise to a loss of privity in the same way as happens when a client sues a solicitor. The choice to sue the Family Defendants was Mr. Berezovsky's. He did not have to do so but, having chosen to sue them and the Interim Administrators in one action, effectively he could not assert privilege against the one when he could not assert it against the other.[42]I do not think that this line of cases assists Mr. Adkin. The position where a solicitor is sued is different. In that situation the privilege exists intact up to the time of the action. The solicitors are privy to the information in question, and the privilege and the protection afforded by privilege arise out of the very relationship that they had with their litigating counterparty. When the client chooses to sue the solicitors, there is a waiver as set out in Lillicrap v. Nalder at p.99, approving formulation of May J:
"I return to what I regard as the heart of the matter -- waiver. A client who sues his solicitor invites the court to adjudicate the dispute and thereby, in my judgment, waives privilege and confidence to the extent that is necessary to enable the court to do so fully and fairly in accordance with the law, including the law of evidence..."
[43]See also Paragon Finance v. Freshfields at p.1188E to F:
"When a client sues a solicitor who has formerly acted for him, complaining that the solicitor has acted negligently, he invites the court to adjudicate on questions arising directly from the confidential relationship which formerly subsisted between them. Since court proceedings are public, the client brings that formerly confidential relationship into the public domain. He thereby waives any right to claim the protection of legal professional privilege in relation to any communication between them so far as necessary for the just determination of his claim; or, putting the same proposition in different terms, he releases the solicitor to that extent from the obligation of confidence by which he was formerly bound. This is an implication of law, the rationale of which is plain. A party cannot deliberately subject a relationship to public scrutiny and at the same time seek to preserve its confidentiality. He cannot pick and choose, disclosing such incidents of the relationship as strengthen his claim for damages and concealing from forensic scrutiny such incidents as weaken it. He cannot attack his former solicitor and deny the solicitor the use of materials relevant to his defence. But, since the implied waiver applies to communications between client and solicitor, it will cover no communication to which the solicitor was not privy and so will disclose to the solicitor nothing of which he is not already aware."
[44]That rationale simply does not exist in the present case, even as regards Badri and the estate. There is no privileged relationship which is opened up by the action. There is a confidentiality which impedes Badri from using information in certain ways but which does not cover his defence in the action. The bringing of the proceedings is the occasion which entitles Badri to use the information and the circumstances in which Mr. Berezovsky cannot assert privilege against him. But it does not itself bring about a further waiver of the privilege. The waiver has already happened, insofar as that is the correct form of words to describe what happened at the proofing meetings. So as far as Badri and the Family Defendants are concerned, the principles in the Paragon and Lillicrap lines do not apply. I do not think that the waiver that has already occurred and which operates in favour of Badri is widened any further by the fact that Badri in the form of his estate has now been sued and that the Family Defendants are also defendants.[45]The history of the joinder of parties also has to be borne in mind in this context. The Family Defendants were joined as parties to this action at a time when the estate was perceived to be an appropriate party but there were no personal representatives available. The Interim Administrators came later and were joined as parties once they had been appointed by the court. This is not therefore a case which can be presented as being one in which Mr. Berezovsky has deliberately and from the outset joined parties in respect of whom a waiver of privilege has to be taken to be an inevitable consequence of the choice of joinder. The situation is more complex than that and does not fall within the Paragon and Lillicrap line.[46]That means that revealing the relevant information cannot be resisted by Mr. Berezovsky so far as the Interim Administrators are concerned, but on the present reasoning it does not go as far as the Family Defendants who are technically different parties. They are technically not within the waiver, though subject to a point about Mrs. Gudavadze which I raise below. That seems to me to be the case despite the fact that in this litigation they are in the same interest as the Interim administrators and indeed are expected to make the running so far as the estate is concerned, and that the Interim Administrators are content that they should be taking this privilege point. I accept that there is an air of artificiality in these circumstances in saying that the Interim Administrators are entitled to receive the material but the Family Defendants are not. However, that does not mean that the Family Defendants are within the waiver. One can imagine circumstances in which the interests of the Family Defendants in the litigation are not exactly the same as the Interim Administrators, (for example, if there are assets in their hands which do not pass through the estate but which Mr. Berezovsky nonetheless claims), and I think that the answer to the question of whether they are entitled to this material should be the same in that case. I think the answer is indeed the same and it is that they are not entitled to see it in the same way as the Interim Administrators are.[47]That might be thought at first sight to leave the availability of documents in an odd, if not unsatisfactory, state. The Interim Administrators will be in possession of relevant documents and will be allowed to use them in the defence of the claim so far as appropriate. Other parties, including the defendants in the other litigation which is being run with this action, will not prima facie be allowed to see this information. However, it can be reconciled with principle in the following way. In the light of my finding as to the extent of the waiver, the Interim Administrators could not be restrained from using that information in Badri's, the estate's, own interests in the litigation. If that involves the deployment of the documents or information, then that is what it involves. That is likely to lead to its use in court which would ultimately destroy the effect of the privilege unless confidentiality regimes were put in place. In this particular litigation the information could not be effectively deployed without the other parties seeing it. The proper conduct of the litigation would require that disclosure. Thus, the other parties would get to see it in due course but through the route of the legitimate deployment by the Interim Administrators and not by virtue of a waiver operating directly in their favour. It is important to keep the proper analysis in mind and to give effect to it because that controls excessive disclosure and it would enable any relevant confidentiality regimes to be put in place. Thus, this proper analysis reconciles principle with practicality, common sense and the proper administration of justice.[48]That analysis can be taken further. It seems to me at the moment that proper deployment of the information by the Interim Administrators would involve not only direct deployment by them at, for example, a trial, using the material as evidence in their own interests, but it would also involve other disclosure which is capable of operating in the estate's interests. Thus, it may well be that disclosure to the Family Defendants by the Interim Administrators, because the Family Defendants are making the running in the defence, technically, at least in part, would be in the interests of the estate and would therefore be within that legitimate use. Prima facie, it seems to me that that would be justified if the Interim Administrators formed the bona fide view that the interests of the estate required it. Thus, the cat would be effectively let out of the bag via a different route from a direct waiver operating directly in favour of other parties.[49]This analysis also allows the possibility of addressing the concerns of Mr. Berezovsky as to confidentiality in another direction. The proofing documents were ruled as discloseable in the Abramovich action. The privileged information is said to relate to that action, though it is presumably relevant to this one by virtue of the overlap between the two actions. Mr. Berezovsky is concerned that if disclosure of the privileged material takes place in these proceedings in favour of the parties to this action, then it will inevitably find its way into the hands of Mr. Abramovich so that the material given to a witness in the course of proofing that witness for the purposes of that action, which the witness is entitled to use in his own interests, is in practice made available to the very person from whom it ought to be concealed. In my view, that may indeed turn out to be the consequence of the legitimate use of the information made by the witness himself, that is to say the Interim Administrators, if it cannot be avoided, and where legitimate use is permitted. However, it is not an inevitable consequence. It all depends on how the witness, or the Interim Administrators in this case, seek to deploy the information and indeed how much of it they seek to deploy. The overlap issues and the participation of parties in more than one action may make any leakage an inevitability, but that cannot be judged in the abstract. If, for example, the proper interests of Badri require deployment in this action but not in the Abramovich action, then it might be possible to put a regime in place which prevents the latter.[50]All these represent potential problems which are not actual at the moment. It is for the Interim Administrators to decide what the interests of the estate require. They are court-appointed officials who have instructed responsible and experienced lawyers, and they can be relied on to approach this matter responsibly, seeking directions from the court if they are in doubt. If there is a debate as to what they should do, they can even procure that there is a debate in which the court can actually see the material so that the debate can be more real in those sort of terms.[51]There, is however, an additional gloss on all this. Mrs. Gudavadze attended some of the meetings and thus was there when privileged information was disclosed at those meetings. I am told that she was there, at least in part, to assist with translation of those meetings, but that is not formally in evidence. I consider that everything that I have said as to the waiver of confidence so far as Badri is concerned applies to her in relation to the meetings that she attended. If she needs to use the information for the legitimate protection of her own legitimate interests, then, in my view, she is at liberty to do so, but subject to the same restraints and constraints as Badri. If she were no more than a commercially-employed interpreter, then the position would be likely to be otherwise. However, she was probably there for more reasons than merely having to avoid paying for an alternative. She was probably there because she was Badri's wife and therefore within the same sort of confidentiality circle as he was for these purposes, but with the same protections for her personal interests. She is no more likely to have agreed a complete bar on the use of any of the information given to her or in her presence than he was. I therefore rule that she is entitled to see the record of privileged material disclosed at meetings at which she was present.[52]I therefore rule that the privileged material redacted from the notes of proofing sessions is not something which the Family Defendants as such are entitled to inspection of, but the Interim Administrators are, and Mrs. Gudavadze is also entitled to inspection of it so far as it was information disclosed at meetings at which she was present.