Litigation round up - November 2022

We bring you our monthly round up of recent litigation cases.

Litigation privilege

The Court of Appeal reviewed the circumstances in which litigation privilege can be claimed over the identity of someone communicating with a solicitor in relation to litigation. It is necessary to consider whether disclosure of that identity would inhibit candid discussion between the lawyer and the client, or the person communicating on the client's behalf. If so, that identity should be privileged; if not, extending privilege to that identity was unnecessary and could deprive the court of relevant evidence. The court rejected the analogy with the privileged identity of a potential witness with whom the solicitor has been in contact: to identify potential witnesses necessarily tends to reveal the solicitor's advice about litigation strategy (Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd).

Obtaining documents from the court file

A request by a non-party for a copy of a court order pursuant to CPR 5.4C is not a “record of the court” under PD 5.4B. For this reason, the court does not have jurisdiction to order the Courts and Tribunal Service (HMCTS) to disclose the non-party's request, including their personal details, to a party in the proceedings. The judge rejected the argument that a non-party exercising their rights of open justice cannot complain if a party relies on the same rights to discover the non-party's identity (Hayden v Associated Newspapers Ltd).

Non-party disclosure orders

The Court of Appeal held that there is jurisdiction (under section 34 of the Senior Courts Act 1981) to make an order against a non-party out of the jurisdiction for disclosure of documents located within England and Wales. The court can therefore make an order for service of the application out of the jurisdiction pursuant to the “claims under various enactments” jurisdiction gateway  in PD 6B paragraph 3.1(20) (Gorbachev v Guriev).

Service by email

The Administrative Court has held that an agreement to accept email service specifying more than one email address does not comply with PD 6A.4.1. Unless, therefore, the serving party seeks advance clarification of which email address to use, service will be ineffective. In this particular instance, the court was prepared to validate the defective service under CPR 6.15. The defendant was made aware of the contents of the claim form on the day it was issued and suffered no prejudice. Although the claimants did not take reasonable steps to affect service in accordance with the rules, there were some mitigating factors ( R (Tax Returned Ltd & Ors) v Commissioners for His Majesty's Revenue and Customs).  

Privilege and investigation reports

An investigator wrote a report following an employee’s grievance brought under an internal policy. She subsequently revised the report following external legal advice.  The final version was lodged with the tribunal and the employee applied for disclosure of the original report. The Employment Appeals Tribunal rejected the employer’s argument that the original report acquired privilege retrospectively. Privilege could not be applied retrospectively, even if this meant that inferences might be drawn from any differences between the original report and the amended version (University Of Dundee v Chakraborty).

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