Privilege in insolvency applications

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Mr Yurov applied for his own bankruptcy in early 2020. His trustees subsequently made an application under section 366 of the IA1986 for access to the bank statements for bank accounts that were held in Mrs Yurova’s sole name. In the witness statement in support of the application, the trustees referred to legal advice which suggested that, under Russian law, 50% of the balances in Mrs Yurova’s bank accounts belonged to the bankrupt.

Notwithstanding that the witness statement expressly stated that "I do not waive privilege", Mrs Yurova asserted that the trustees had waived privilege in that advice. She sought a copy of the advice and the trustees resisted disclosure, save for an extract in relation to spousal interests in bank accounts. Mrs Yurova applied for disclosure of the whole Russian law advice.

Whether disclosure should be ordered within insolvency applications depends on all the circumstances and the overriding objective. Waiver of privilege was a relevant factor. Stating that privilege is not waived is insufficient to protect privilege. Firstly, it had to be considered whether the privileged material had been deployed in court. It was considered that the trustees had deployed the advice; they were relying upon the material in the witness statement. The next question that fell to be considered was the extent to which the legal advice, as a whole, was material to the issues in question.

As disclosure is restricted to the need to go no further than necessary to prevent injustice, the court ordered disclosure of advice in relation to the Russian law of matrimonial property in as far as it related to bank accounts, the instructions, and communication concerning the disclosable instructions or advice. The judge noted that, had the trustees sought expert evidence on Russian law, material instructions would have been provided to Mrs Yurova pursuant to CPR35.

Yurov, Re [2022] EWHC 2112 (Ch)

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