The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance overruled the whole of the decision in Hayes v. Dowding and that the commentary in Phipson more correctly states English law. The test of fairness is not a test which is applied generally in English law when deciding whether there has been an implied waiver of privilege; the privilege which attaches is absolute and is not overridden as a matter of policy. It is only waived in the limited circumstances set out in Lillicrap v. Nalder and Paragon Finance. There had been no waiver of legal advice privilege by FAL by pleading economic duress and putting in issue the material fact of Mr Hepworth’s state of mind.
Judges:
Ramsey J
Citations:
[2008] EWHC 3079 (TCC), [2009] PNLR 16, [2009] PNLR 16, 25 Const LJ 308, [2009] BLR 80
Links:
Citing:
Cited – DSND Subsea Ltd v Petroleum Geo Services Asa TCC 28-Jul-2000
Dyson J set out the principles applicable in establishing a pleading of commercial duress:
(i) Economic pressure can amount to duress, provided it may be characterised as illegitimate and has constituted a ‘but for’ cause inducing the claimant . .
Cited – Hearn v Rhay 1975
(United States District Court, Eastern District of Washington) Neill CJ said: ‘All of these established exceptions to the rules of privilege have a common denominator; in each instance, the party asserting the privilege placed information protected . .
Cited – Lillicrap v Nalder CA 1993
A property developer sued his solicitor for negligent advice on the purchase of a property. The solicitor wished to rely on previous retainers, in which the developer had ignored advice, so as to challenge the developer’s assertions that, with . .
Cited – Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow Holding 1995
A Dutch corporation had obtained advice from lawyers and other professionals before purchasing share capital in insurance companies. After the purchase the corporation discovered that it was exposed to large losses and began proceedings in . .
Cited – Hayes v Dowding 1996
Disputes over the running of a private company had been compromised by the plaintiffs’ solicitors. The plaintiffs sought to upset the compromise on the basis that they had been induced by a misrepresentation. The Defendants sought disclosure of . .
Cited – Wardrope v Dunne 1996
(Queensland) Where in his pleadings a party relies upon his state of mind and it would be unfair to permit that party to maintain privilege in respect of communications passing between them and their legal advisers which might bear upon the . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc); etc v Freshfields (a Firm) CA 11-Mar-1999
A client who sues his former solicitor, waives his legal privilege protection, as regards that legal relationship, but that does not require a waiver also, of other privilege with later solicitors instructed in related matters. Lord Bingham LCJ . .
Cited – X Corporation v Y 16-May-1997
Legal professional privilege might be taken to be waived if it would be unfair to allow a client to maintain it. . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited by:
See Also – Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) TCC 19-May-2009
The mediator who had acted in attempting to resolve the dispute between the parties sought to have set aside a witness summons issued by the claimant who sought to have the mediated agreement set aside for economic duress.
Held: In this case . .
Lists of cited by and citing cases may be incomplete.
Arbitration, Litigation Practice
Updated: 22 July 2022; Ref: scu.279959