High Court restrains use of privileged documents disclosed by solicitor in breach of confidence

The High Court has held that a party retained the benefit of legal advice privilege in information provided to her solicitor which the solicitor had disclosed to her opponent in breach of confidence after the retainer had come to an end: Kousouros v O’Halloran & anor [2014] EWHC 2294 (Ch).

The decision acts as a reminder that privilege will not always be lost where privileged documents have found their way into an opponent’s hands. In some circumstances the court will intervene to prevent further use or disclosure of the documents. All will depend on the facts, but such circumstances may include where the recipient has acted unconscionably or where the material has been disclosed in breach of an obligation of confidence (as in the present case) or inadvertently (as in London Borough of Redbridge v Johnson, here). Parties seeking to prevent use of the documents must act promptly, as otherwise relief may be refused on that basis.

This case does not deal with the (perhaps more common) situation where privileged material is inadvertently disclosed on a party’s behalf as part of the disclosure/inspection process in litigation. In those circumstances, questions of waiver of privilege can come into play, and the crucial issue is whether there has been an obvious mistake (see Tchenguiz v SFO [2014] EWHC 1102 (Comm)). Continue reading


Filed under Privilege

Article published on recent clarification of Mitchell guidance on relief from sanctions

The Court of Appeal’s decision in the high-profile Mitchell “plebgate” case last November introduced tough new guidance on the approach the court should follow in granting relief from sanctions for breach of a rule or court order. The case generated a storm of controversy as well as huge amounts of satellite litigation, with litigants seeking to hold their opponents to account for minor failures in the hopes of gaining tactical advantage in the litigation.

In an effort to ease these difficulties, the Court of Appeal replaced the Mitchell guidance with a new, more flexible three-stage test in a decision handed down on 4 July in three appeals (Denton v TH White Ltd, Decadent Vapours Ltd v Bevan, Utilise TDS Ltd v Davies [2014] EWCA Civ 906). James Farrell and Maura McIntosh have published an article in PLC Magazine which considers the new test and its practical implications: “Mitchell guidance clarified: an end to the roller coaster ride?” Click here to download a PDF.

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Supreme Court corrects “wrong turn” in English law, holding that bribes received by an agent are held on trust for the principal

Who is the rightful owner of a bribe? Is a bribe or secret commission received by an agent “held on trust” for his principal? Or is the principal’s claim against the agent a personal one for equitable compensation equal to the value of the bribe or commission?

The issue is of critical importance. It affects everything in litigation against dishonest agents, from the nature of the injunctive relief available at the outset to the rights in his insolvency. Perhaps most importantly of all, it affects whether the bribe can be “traced” into the hands of third parties and recovered as “trust” property.

After over 100 years of judicial wrangling and academic debate, the Supreme Court decided last week that bribes and secret commissions are held on trust by an agent for his principal: FHR European Ventures LLP and others (Respondents) v Cedar Capital Partners LLC (Appellant) [2014] UKSC 45. In doing so, the Supreme Court overturned various well-known authorities (including Lister v Stubbs and Sinclair v Versailles – see post) and aligned English law with several jurisdictions which long ago broadened the availability of proprietary remedies.

The implications are significant. Most importantly, the principal can claim a proprietary remedy against the bribe/secret commission itself, rather than a personal one against the defaulting agent. Robert Hunter and Tom Wood consider the decision below. Continue reading

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High Court considers relevance of Mitchell to late application to challenge jurisdiction

A deputy judge has held that deemed submission to the jurisdiction by failing to challenge jurisdiction on time is not a sanction, so no question of relief from sanction arises on a late application. The Mitchell case is relevant, however, as compliance with time limits is considered more important than before: Zumax Nigeria Limited v First City Monument Bank Plc [2014] EWHC 2075 (Ch). Although judgment was given before the Court of Appeal reinterpreted Mitchell in its decision in Denton (see post), the decision remains of interest as, even post-Denton, compliance with rules and court orders is of particular importance.

The case is also of interest in expressing the view, obiter, that:

  • The defendant’s application for access to a third party’s documents under the Bankers Books Evidence Act was a submission to the English jurisdiction, even though made after a challenge to the jurisdiction had been issued.
  • Submission did not prevent the defendant from seeking a stay on forum conveniens grounds, ie arguing the courts of another country were more appropriate to hear the case.

The key message is that parties wishing to challenge the jurisdiction of the English courts should apply promptly and, whenever possible, within the time limits in CPR 11. Until the challenge is determined, they should not take any steps in the proceedings which could be interpreted as a submission to the jurisdiction. Continue reading

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Court of Appeal confirms account of profits available as remedy for dishonest assistance

Some, if not quite born trustees, are appointed as such at the outset of a trust. Some achieve trusteeship at some later stage. And some have some aspects of trusteeship thrust upon them.

Within this third category are strangers to a trust who “dishonestly assist” an express trustee in a breach of the trustee’s fiduciary duty. Through this dishonest assistance, the stranger will be liable to the injured beneficiary, even though no fiduciary relationship exists between them. Although not sued as fiduciaries, such strangers can be held liable to account in equity as if they were a trustee of the beneficiary. Commonly, for convenience (which more often leads to confusion), the stranger is called a “constructive trustee”.

Previously, there was some uncertainty as to the scope of the remedies available for dishonest assistance: specifically, whether the claimant-beneficiary could obtain an account of profits against the dishonest assister, even though no loss was suffered. The unanimous decision of the Court of Appeal in Novoship (UK) Limited & ors v Nikitin & ors [2014] EWCA Civ 908 confirms the availability of the remedy in claims against third parties for dishonest assistance and also the circumstances in which the remedy will be available, namely where there is a sufficient causal connection between the dishonest assistance and the profit and where it would be not be disproportionate to grant the remedy. Robert Hunter and Tom Wood consider the decision below. Continue reading

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“Opening shot” protected by without prejudice privilege

The High Court has held that a draft Complaint in New York proceedings sent to the other party marked as a “preliminary draft” and “for settlement purposes only” was protected by without prejudice privilege in proceedings before the English court seeking an anti-suit injunction: Rochester Resources Limited v Lebedev [2014] EWHC 2185 (Comm).

Difficulties arise in practice in deciding whether an opening shot in proposed negotiations will be protected by without prejudice privilege. While it will always depend on the substance of the communication and the facts of the case, a letter before action with a general expression of willingness to negotiate is unlikely to be protected; more is required. Here the court held that sending the draft Complaint fell within the scope of the privilege as it was part of negotiations genuinely aimed at settlement.

Given the uncertainties, parties should seek to agree that communications will be on a without prejudice basis before sharing any substantive materials such as a draft claim. While this does not prevent a court from considering the status of the documents, it is unlikely to look behind the parties’ agreement. If this is not possible, then clear labelling of material, whilst still not determinative, may assist. Continue reading

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Filed under Privilege, Settlement

Court of Appeal confirms contractual rules apply by analogy to assessment of compensation under cross-undertaking in damages

A recent Court of Appeal decision has confirmed that the usual contractual rules, including as to remoteness of damage, apply by analogy to the assessment of compensation under a cross-undertaking in damages in a freezing order. However, there is also room for exceptions, given that there is in fact no contract: Hone and others v Abbey Forwarding Ltd and another [2014] EWCA Civ 711.

The judgment provides helpful clarification in the light of a number of recent first instance decisions which had cast doubt on the application of contractual principles to the assessment of compensation in cases of this sort.

Adam Johnson and Sophie Jones from our Advocacy Group consider the decision below. Continue reading

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Filed under Damages, Injunctions

High Court finds agreement to engage in time limited “friendly discussions” is enforceable

The Commercial Court has held that a dispute resolution clause requiring the parties to seek to resolve a dispute by friendly discussions constituted an enforceable condition precedent to arbitration: Emirates Trading Agency LLC v Prime Mineral Exports Private Limited [2014] EWHC 2104 (Comm).

Although decided in the context of an arbitration clause, it appears from the judgment that the same conclusion would have been reached if the agreement had required such discussions before issuing court proceedings. If this approach is followed in other cases, it will represent a stark change in the English courts’ position on the enforceability of agreements to negotiate in dispute resolution clauses. Parties entering into such agreements should be aware that they may be held to them if a dispute arises.

The decision is also of interest for the court’s conclusion that the obligation to seek to resolve disputes by friendly discussions “must import an obligation to seek to do so in good faith”, referring to Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] EWHC 111 (QB) in which the court implied a duty of good faith into a distribution agreement (see our post on that decision).

For more on the Emirates decision see this post on our arbitration notes blog.

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Upcoming webinar – Compliance with court rules and orders post-Mitchell: Guidance for in-house lawyers

On Wednesday 16 July 12.45 – 1.45pm BST Chris Bushell, Gregg Rowan and Maura McIntosh will deliver a webinar for Herbert Smith Freehills clients and contacts looking at the court’s approach to dealing with procedural deadlines in light of the Mitchell guidance, as very recently clarified by the Court of Appeal in the triple appeal in Denton v TH White Ltd, Decadent Vapours Ltd v Bevan, Utilise TDS Ltd v Davies [2014] EWCA Civ 906 (see post).

In the webinar we will look at the risks arising from the court’s tougher approach to compliance following the Jackson reforms and offer practical suggestions for in-house lawyers seeking to navigate the new landscape. The issues we will explore include:

  • what to do if you need more time
  • what to do if you miss a deadline
  • what to do if your opponent is in breach

Continue reading

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