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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd & Ors [2022] EWCA Civ 1484 (10 November 2022) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2022/1484.html Cite as: [2022] EWCA Civ 1484, [2022] WLR(D) 457, [2023] 1 WLR 1425, [2023] WLR 1425 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
COMMERCIAL COURT (QBD)
FINANCIAL LIST
Mr Justice Robin Knowles CBE
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE NICOLA DAVIES
and
LORD JUSTICE MALES
____________________
LORELEY FINANCING (JERSEY) No 30 LIMITED |
Appellant/ Claimant |
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- and - |
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(1) CREDIT SUISSE SECURITIES (EUROPE) LIMITED (2) CREDIT SUISSE INTERNATIONAL (3) CREDIT SUISSE SECURITIES (USA) LLC (4) CREDIT SUISSE AG |
Respondents/Defendants |
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Tamara Oppenheimer KC & Adam Sher (instructed by Cahill Gordon & Reindel (UK) LLP) for the Respondents
Hearing date: 12 October 2022
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Crown Copyright ©
Lord Justice Males:
"In the present case, the identities of the individuals who are, or have been, authorised to give instructions to Reynolds Porter Chamberlain LLP ('RPC') on behalf of the Claimant in relation to these proceedings are not subject to legal professional privilege."
Background
Procedural history
"Paragraph 104(3)(b) of the Defence inter alia alleges that KfW may be providing instructions to RPC on behalf of Loreley 30. Please therefore confirm whether or not individuals at KfW provide instructions in relation to this litigation on behalf of Loreley 30.
(For the avoidance of doubt, this request does not seek disclosure of the content of any communications which are subject to legal professional privilege, seeking (at most) to identify the individuals who engaged in such communications, which fact is not itself a communication or subject to legal professional privilege)."
"In any event, the request seeks information as to the circumstances in which the decision was made to pursue the present claim and/or the provision of instructions in relation to the conduct of the claim. That information is, by its nature, subject to legal professional privilege."
"All engagement letters between RPC and [Loreley] and/or [IKB] or relevant subsidiary (together 'IKB'), and/or KfW Group or relevant subsidiary (together 'KfW') concerning the present litigation."
The judgment
"25. In my judgment, the answer to the question whether the identity of a person communicating with a lawyer is privileged lies in whether two requirements are met. First, whether the communication is privileged. Second, whether that privilege will be undermined by the disclosure of identity sought. This answer applies as much where the person communicating does so as a person authorised to give instructions to the lawyer on behalf of the lawyer's client as where that person has a different role."
Submissions on appeal
Analysis
The scope of litigation privilege
"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 the 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."
"The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule."
"86. Determining the bounds of privilege involves finding the proper point of balance between two opposing imperatives, making the maximum relevant material available to the court of trial and avoiding unfairness to individuals by revealing confidential communications between their lawyers and themselves. The practice which has developed is a reconciliation between these principles: Seabrook v British Transport Commission [1959] 1 WLR 509 at 513, per Havers J. There is a considerable public interest in each of these. The importance of keeping to a minimum the withholding of relevant material from the court, upon which Mr Pollock laid emphasis, is self-evident. It was stressed by Wigmore (Evidence, vol 8, para 2291 McNaughton rev. 1961), who expressed the opinion that the privilege should be strictly confined within the narrowest possible limits consistent with the logic of its principle, an approach echoed in the speech of Lord Edmund-Davies in Waugh v British Railways Board [1980] AC 521 at 543. The competing principle of legal professional privilege is also rooted in public policy: cf B v Auckland District Law Society [2003] 2 AC 736, paras 46-7. It is not based upon the maintenance of confidentiality, although in earlier case-law that was given as its foundation. If that were the only reason behind the principle the same privilege would be extended to such confidants as priests and doctors, whereas it has been settled in a line of authority stemming from the Duchess of Kingston's Case (1776) 1 East PC 469 that it is confined to legal advisers: see, eg, Cross & Tapper on Evidence, 9th ed, pp 461-5.
"45. In the normal course of proceedings a solicitor will interview and obtain proofs of evidence from all manner of potential witnesses for use in actual or prospective litigation. Both the information given and the identity of the person supplying it are confidential and privileged unless and until the privilege is waived by that person giving evidence in the proceedings or some other equivalent action. This was and is recognised in the common form claim to privilege contained in the former affidavit of documents as well as in the present disclosure statement in neither of which was or is the name of the witness who has given the proof revealed.
46. If the information provided by and the identity of a potential witness is privileged information then the claim to privilege made by Techint must preclude the grant of the order now sought by the Consortium. There is no evidence to justify any conclusion that the nature of the communications between Mr Fenwick Elliott and the potential witness were such as to exclude any claim for privilege. Even if it is assumed that the potential witness is an employee of OGP or the Consortium the information he is assumed to have given cannot have been imparted to Mr Fenwick Elliott in breach of duty because it is not, as between the parties to the arbitration, either confidential or privileged. Even if the information given by the potential witness indicated some earlier breach of a duty of confidence by him or another that cannot preclude privilege for the communication between him and Mr Fenwick Elliott. Frequently information given by a potential witness to a solicitor indicates the past commission of a crime or fraud but that is no ground for denying privilege in the communication; quite the opposite. If, as I conclude, the communication between the potential witness and Mr Fenwick Elliott is privileged then it must follow that the identity of the person giving the proof is similarly privileged."
The cases about facts to do with the client
"Stating the names of these trustees would not, in my opinion, be stating a material part of the contents of a written instrument within the meaning of the rule of law on the subject. No doubt the trustees are named in the deed, but it is a fact dehors the deed who they are. With regard to the question whether the solicitor could refuse to disclose the names on the ground that they were communicated to him in confidence, the matter stands thus: he is in this predicament. He must allege that the communication was privileged because the trustees, his clients, made it to him in confidence, and then he cannot refuse to say who these clients are. I agree with the opinion expressed by James LJ in Ex parte Campbell, In re Cathcart (1870) LR 5 Ch App 703, that the fact who the clients were was not the subject of a professional confidence. The client does not consult the solicitor with a view to obtaining his professional advice whether he shall be his solicitor or not."
"It is in my judgment important to remind oneself of the well established purpose of legal professional privilege, which is to enable a client to make full disclosure to his legal adviser for the purpose of seeking legal advice without apprehension that anything said by him in seeking advice or to him in giving it may thereafter be subject to disclosure against his will. It is certainly true that in cases such as Balabel v Air India [1988] Ch 317, the court has discountenanced a narrow or nit-picking approach to documents and has ruled out an approach which takes a record of a communication sentence by sentence and extends the cloak of privilege to one and withhold it from another. It is none the less true that legal professional privilege applies, and applies only, to communications made for the purpose of seeking and receiving legal advice.
In this case we must consider the function and nature of the documents with which we are concerned the record of time on an attendance note, on a timesheet or fee record is not in my judgment in any sensory communication. It records nothing which passes between the solicitor and the client and it has nothing to do with obtaining legal advice. It is the same sort of record as might arise if a call were made on a dentist or a bank manager. A record of an appointment made does involve a communication between the client and the solicitor's office but is not in my judgment, without more, to be regarded as made in connection with legal advice. So to hold would extend the scope of legal privilege far beyond its proper sphere, in my view."
"18. The enduring principle set out in R v Cox and Railton (1884) 14 QBD 153, and repeated down the years, is that a client must be free to consult his legal advisers without fear of his communications being revealed. It is therefore critical for the court to look at the purpose behind the communication, because the limitations on the situations properly covered by this legal concept mean that not every communication will attract privilege solely on the ground that it is made to a solicitor. …
…
20. That decision [i.e. Rogers] provides strong support, for the proposition that the provision of an individual's name, address and contact number cannot, without more, be regarded as being made in connection with legal advice. It records nothing which passes between the solicitor and client in relation to the obtaining of or giving of legal advice. Taking down the name and telephone number is a formality that occurs before the legal advice is sought or given. As my Lord observed during argument, providing these details does no more than create the channel through which advice may later flow ….
21. It follows, in my judgment, that the identity of the person contacting the solicitor is not information subject to legal professional privilege and the telephone numbers of the brothers, equally, are not covered by this protection; neither are the dates when one or either of those men phoned the office. Moreover, the record of appointments in the office diary and attendance notes, insofar as they merely record who was speaking to the solicitor and the number they were calling from, fall within the same category. Other details contained within the attendance notes may well be covered by legal professional privilege depending on what, if anything was discussed."
"27. I have come to the conclusion, in the light of the circumstances of this unusual case, and in particular the evidence given by his solicitor, that the information as to the Defendant's identity was indeed the subject of legal professional privilege and thus protected (whether "absolutely" or according to settled practice). Even if it were not, there are powerful reasons not to override the duty of confidence. It was not simply a piece of neutral background information, as would generally be the case with a client's name, since both he and his solicitor were well aware that the Claimant was keen to establish his identity (for perfectly legitimate reasons): it was accordingly central to their discussions about the retainer that confidentiality should be maintained."
Redaction 6
The declaration
Request 17
"1.2 A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet."
Disposal
(1) grant Loreley's application to amend its grounds of appeal;
(2) set aside the declaration contained in paragraph 1 of the judge's order;
(3) set aside paragraph 2 of the judge's order which requires Loreley to serve a full response to Request 17; and
(4) dismiss the appeal from paragraph 3(1) of the judge's order which requires Loreley to produce a copy of RPC's engagement letter with Redaction 6 removed.
Lady Justice Nicola Davies:
Sir Geoffrey Vos, Master of the Rolls: