“Did the Claimants discover, or could the Claimants with reasonable diligence have discovered, the alleged fraud and/or deliberate concealment only after 25 or26 June 2018 ?”
“i. All correspondence between [Mishcon de Reya] and Harbour up to October 2018 in connection with a potential claim against any one or more of the Defendants (or the Defendants' corporate group more generally); ii. All correspondence between [Mishcon de Reya], the LTDA and/or any members of the LTDA up to October 2018 in connection with a potential claim against any one or more of the Defendants (or the Defendants' corporate group more generally); and iii. All documents saved to the Harbour File (and any connected or related files) up to October 2018 including but not limited to internal correspondence, external correspondence, attendance notes, memos, presentations, advice, letters.”
“When did the Claimants discover (or with reasonable diligence could have discovered) enough to plead their case of the fraud against the Defendants?”
“102. The conclusion to be drawn from the trilogy of 19th century cases to which I have referred and the qualifications expressed in the modern case-law is that 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.” (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.”
“27. In summary, our conclusions are as follows: i) Litigation privilege is engaged when litigation is in reasonable contemplation. ii) Once litigation privilege is engaged it covers communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with the conduct of the litigation, provided it is for the sole or dominant purpose of the conduct of the litigation. iii) Conducting the litigation includes deciding whether to litigate and also includes whether to settle the dispute giving rise to the litigation. iv) Documents in which such information or advice cannot be disentangled or which would otherwise reveal such information or advice are covered by the privilege. v) There is no separate head of privilege which covers internal communications falling outside the ambit of litigation privilege as described above.” i) Litigation privilege is engaged when litigation is in reasonable contemplation. ii) Once litigation privilege is engaged it covers communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with the conduct of the litigation, provided it is for the sole or dominant purpose of the conduct of the litigation. iii) Conducting the litigation includes deciding whether to litigate and also includes whether to settle the dispute giving rise to the litigation. iv) Documents in which such information or advice cannot be disentangled or which would otherwise reveal such information or advice are covered by the privilege. v) There is no separate head of privilege which covers internal communications falling outside the ambit of litigation privilege as described above.”
“68. The rationale for the first sub-type (ie. "litigation privilege") rests, in modern terms, on the principles of access to justice, the proper administration of justice, a fair trial and equality of arms. Those who engage in litigation or are contemplating doing so may well require professional legal advice to advance their case in litigation effectively. To obtain the legal advice and to pursue adversarial litigation efficiently, the communications between a lawyer and his client and a lawyer and a third party and any communication brought into existence for the dominant purpose of being used in litigation must be kept confidential, without fear that what is said or written might be disclosed. Therefore those classes of communication are covered by "litigation privilege".”
“In one sense, one can say that discussions with funders are created for the dominant purpose of actual or contemplated litigation. Indeed, this will be the only purpose of discussions with funders. But the argument that such documents are subject to litigation privilege misunderstands the nature of litigation privilege, which protects communications made for the dominant purpose of conducting litigation. Obtaining funding cannot sensibly be regarded as within this principle.”
“Provided the dominant purpose ingredient is fulfilled, there seems no principled basis for limiting the scope of litigation to that to which the person is a party.”
“The starting point is that the client’s lawyer cannot claim legal advice privilege for communications with a funder or potential funder because the funder is not his client, and cannot be his client (there would be a huge conflict of interest).”
“91. That leads on to the next question: whether the pre-ATE Policy documents identified in the Panel Solicitors' schedule were created for the dominant purpose of obtaining legal advice in respect of that contemplated litigation. For this I have to ask: why did enquiries have to be made as to the circumstances giving rise to the potential claims? Was the dominant purpose one which would lead to a decision on whether or not to litigate the claim? This is a more difficult issue. In the end I have concluded that, at the time that these documents were created, the dominant purpose was to make a decision on whether the ATE Policy would be issued and the potential claim funded. If the policy was not issued, then there would be no litigation. I appreciate that there are indications in the documents (to which Miss Carr drew my attention) which suggest that there will be litigation. But that was not guaranteed until the ATE Policy had been issued. I accept that a subsidiary reason for producing the documents was the potential litigation, but it was not what was uppermost in the minds of NIG and TAG at the point they were created.”
“…depended on the failure by the solicitors to disclose to their client information that it was their contractual duty to him to disclose. The fact that the disclosure of the information would, or might, have placed the solicitors in breach of duties they owed to others did not relieve them of the contractual duties they had undertaken or of the legal consequences of their breach of those contractual duties.”
“Privileged. Where documents have been identified as part privileged, the privileged section of the document has been redacted to retain privilege.”
“14.1 A person who wishes to claim a right or duty (other than on the basis of public interest immunity) to withhold disclosure or production of a document, or part of a document, or a class of documents which would otherwise fall within its obligations of Initial Disclosure or Extended Disclosure may exercise that right or duty without making an application to the court subject to— (1) describing the document, part of a document or class of document; and (2) explaining, in the Disclosure Certificate, the grounds upon which the right or duty is being exercised. A claim to privilege may (unless the court otherwise orders) be made in a form that treats privileged documents as a class, provided always that paragraph 3.2(5) is complied with.” (1) describing the document, part of a document or class of document; and (2) explaining, in the Disclosure Certificate, the grounds upon which the right or duty is being exercised. A claim to privilege may (unless the court otherwise orders) be made in a form that treats privileged documents as a class, provided always that paragraph 3.2(5) is complied with.”
“3.2 Legal representatives who have the conduct of litigation on behalf of a party to proceedings that have been commenced, or who are instructed with a view to the conduct of litigation where their client knows it may become a party to proceedings that have been or may be commenced, are under the following duties to the court— (5) to undertake a review to satisfy themselves that any claim by the party to privilege from disclosing a document is properly made and the reason for the claim to privilege is sufficiently explained.” (5) to undertake a review to satisfy themselves that any claim by the party to privilege from disclosing a document is properly made and the reason for the claim to privilege is sufficiently explained.”