“As you know, Floreat [defined in the letter as “Floreat [i.e. FPL] and the Floreat Group”] have been assisting me with various aspects of my affairs since 2015. In the course of this engagement, I have asked Floreat to assist me (inter alia) in obtaining legal and other professional advice in respect of various aspects of my and my family’s affairs, including (and not limited to) various pieces of litigation, in various jurisdictions. As such, Floreat are, and at all times have been, instructed and authorised by me to obtain and receive legal advice on my behalf. I should acknowledge that the confirmation provided above states the obvious; Floreat’s instruction and authorisation to obtain and receive legal advice on my behalf are of course clear from the instructions which I have provided by email, in person, and by telephone throughout, and from the scope and nature of Floreat’s engagement by me. This letter of confirmation is provided strictly for the avoidance of doubt and by way of further confirmation of the position.”
“As to Mr Bloch’s ‘cat’, in all cases where there is disclosure upon terms the ‘cat is out of the bag’. There is no need to put it back. Documents disclosed for a limited purpose can only be used for that purpose.” 25.2. Drawing on this, the Privy Council in B v Auckland District Law Society[2003] 2 AC 736 , held at [68]: “It does not follow that privilege is waived generally because a privileged document has been disclosed for a limited purpose only: see British Coal Corpn v Dennis Rye Ltd (No 2)[1988] 1 WLR 1113 and Bourns Inc v Raychem Corp[1999] 3 All ER 154 . The question is not whether privilege has been waived, but whether it has been lost. It would be unfortunate if it were. It must often be in the interests of the administration of justice that a partial or limited waiver of privilege should be made by a party who would not contemplate anything which might cause privilege to be lost, and it would be most undesirable if the law could not accommodate it”. 25.3. In Berezovsky v Hine[2011] EWCA Civ 1089 , draft witness statements One of the statements was a draft witness statement of P himself, although it was sent (among other things) to a solicitor acting for both B and P in his capacity as solicitor for B not P. prepared for B’s action against A were disclosed to P for the purposes of P’s asylum application. The Court held this did not permit P to use those statements in a subsequent action against B, since they were disclosed for a limited purpose. As the Court commented at [42]: “it seems inconceivable that the parties can possibly have envisaged that the draft statements could be deployed by [P] in proceedings in which [A] was a party, and in particular the very proceedings on which the privilege was based and for which it was particularly essential”
“The possibility of [P] deploying the draft statements against [B]was not in the parties’ minds at the time: they were staunch allies, and appear to have been for many years. While that is a point which in one sense cuts both ways, it does highlight the fact that there would have been possible uses to which [P] might wish to put the draft statements to which neither party would have put his mind. On the facts of this case, I think that that supports the notion that [B] would have intended a very limited waiver, and that [P] would have appreciated that”
“the concept of limited waiver is of general application, designed to ensure that the loss of LPP (given its fundamental importance) is limited to that which is necessary to protect other interests”. 25.5. In Candey Ltd v Bosheh[2022] 4 WLR 84 , CA, Arnold LJ held at [122] “[I]t is possible to have a limited waiver of privilege where privileged documents are only disclosed for a specific purpose, such as the assessment of costs [or here, performance of a services agreement] and cannot thereafter be used for another purpose, such as different proceedings… the limitation on the use of the documents means that the information remains confidential…”
“the fact of our clients holding that material demonstrates that it is not confidential as between them and Mr Wang so that privilege could never be asserted”
“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 directly arising 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.”
“the correct approach on the authorities is to focus on the potential exceptions to the otherwise inviolate rule as to privilege”
“69. In our view, it would be a breach of confidence for a defendant, without the authority of the claimant, to examine, or to make, retain, or supply copies to a third party of, a document whose contents are, and were (or ought to have been) appreciated by the defendant to be, confidential to the claimant. It is of the essence of the claimant's right to confidentiality that he can choose whether, and, if so, to whom and in what circumstances and on what terms, to reveal the information which has the protection of the confidence. It seems to us, as a matter of principle, that, again in the absence of any defence on the particular facts, a claimant who establishes a right of confidence in certain information contained in a document should be able to restrain any threat by an unauthorised defendant to look at, copy, distribute any copies of, or to communicate, or utilise the contents of the document (or any copy), and also be able to enforce the return (or destruction) of any such document or copy. Without the court having the power to grant such relief, the information will, through the unauthorised act of the defendant, either lose its confidential character, or will at least be at risk of doing so. The claimant should not be at risk, through the unauthorised act of the defendant, of having the confidentiality of the information lost, or even potentially lost…. … 141. In the present case, there is no real doubt but that the defendants have substantially breached Mr Imerman's rights of confidence in relation to much, and probably the great majority, of the information obtained through accessing it through the server on some nine occasions in early 2009. Furthermore, there seems to be a substantial possibility that the information was all obtained as a result of some of the defendants committing a breach of statutory duty or even a crime. In the absence of good reason to the contrary, Mr Imerman could reasonably expect the court to order that all the documents so accessed, and any copies thereof, whether in electronic or paper form, be delivered up to him or destroyed, and that the defendants be enjoined from using any information obtained from those documents. Again, in the absence of good reason to the contrary, and as Mrs Imerman did not receive the seven files as a bona fide purchaser without notice, Mr Imerman could reasonably expect similar orders against her (and her servants and agents, to use the traditional language, thereby including Withers) in respect of the documents and information in the seven files. 142. Of course a claim for breach of confidentiality may be defeated by showing that the documents or information revealed unlawful conduct or intended unlawful conduct by the claimant: see Istil's case[2003] 2 All ER 252 . But in the instant appeal it is not suggested that the documents themselves disclose measures taken to defeat the wife's claim. Rather it is the external evidence of Mr Imerman's intentions as revealed to the brothers on which reliance is placed. If that was sufficient to establish such an intention then Mrs Imerman should have sought a freezing injunction and/or a search order. It would not have been open to her to take the law into her own hands, and it was not open to her brother to do so for her benefit. If she had sufficient evidence to obtain a search order from the court, it cannot be right for a judge effectively to sanction her committing a legal wrong by by-passing the court's procedures and hacking into her husband's computer records stored on the server. If she did not have sufficient evidence to obtain a search order, it would be even more offensive if a judge effectively sanctioned her (or her brother) hacking into her husband's computer records. 143. We also emphasise that it was not open to her to pre-empt consideration of the husband's disclosure in form E. We have already concluded that there are no rules which dispense with the requirement that a spouse obeys the law. The only remedy which can vindicate Mr Imerman's right to preserve the confidentiality of his documents and information until such time as the law requires him to make full and frank disclosure is to require Mrs Imerman to deliver up the copies containing the information she obtained prematurely and unlawfully. 144. It is also right to bear in mind that this was an extreme case of wrongful access to confidential material. Not only does it seem quite possible that the accessing of Mr Imerman's documents involved breach of statutory duty and statutory crimes under the 1990 and 1998 Acts, but it took place on nine occasions outside the family home, at his place of business, and it involved a vast number of documents (the majority of which will have had no bearing on the ancillary relief proceedings, let alone the Leconfield House issue), which were then electronically copied, and, in many cases, copied onto paper. Moylan J described the case in his judgment of13 January 2010 [2010] 2 FLR 802 , para 43 as being “at the extreme end of the range of behaviour which I have seen during the course of the last 30 years”
“… 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 have seen it does not prevent him claiming privilege as against the rest of the world.”
“…Again, it does not seem to me there is any dispute about the law here. Privilege requires confidentiality and if authority were needed for that proposition, it can be found in the judgment of Leggatt J in the case of Serdar Mohammed v Ministry of Defence[2019] EWHC 4478 (QB) at paragraph 14 (iv) in which Leggatt (as he then was) summarised some of the legal principles in relation to the waiver of privilege and at (iv) he said this: “Because privilege only protects information which is confidential, if the information concerned ceases to be confidential, privilege cannot be claimed…”
"what is the background to and nature of the relationship between Mr. Wang and the Floreat Principals/Floreat"; "what were Mr Wang’s reasons for investing in the Funds?"; and "did the Floreat Principals threaten (as alleged at paragraphs 32 and 37.15 of the PIF WUP) to use their alleged control of the Funds to prejudice Mr. Wang?"
"Floreat effectively assumed control of virtually every aspect of the management of Mr Wang’s wealth and financial affairs"; "pursuant to Floreat’s advice and directions, Mr Wang has invested in at least four investment funds managed and controlled by Floreat"; and the Floreat Principals threatened to "take steps to prevent him from accessing the assets held in the Floreat Funds or otherwise prejudice his position if he continued to try to seek information about their management and operation"
“In my view, the Judge was right to think that an injunction in this case would interfere with the conduct of the ITC proceedings, albeit to a lesser extent than an anti-suit injunction. The judge in the ITC would be deprived of deciding whether an exception to FRE 408 applied so as to allow AutoStore to admit the Document on the question of the alleged equitable estoppel. Moreover, Ocado had itself stipulated for the application of FRE 408. It seems, in those circumstances, particularly unjust that it should now be able to sweep away the application of FRE 408 in precisely the kind of proceedings to which it must have apprehended it might in the future be relevant. For these reasons, I accept AutoStore's argument that in a case of this unusual kind, the court should not grant an injunction which has the final effect of preventing a foreign court deciding whether, according to its own law and procedures, the Document should be admitted, unless Ocado can show a high probability of establishing its case at trial. … It would be a breach of comity for the English court to interfere with those US proceedings by imposing English without prejudice rules, when Ocado had expressly stipulated FRE 408 should apply. It should be held to its bargain. Moreover, as the Judge said, if the injunction is not granted, the ITC will be able to decide the admissibility of the Document on the basis of FRE 408 which it seems most likely the parties agreed should apply.”