The court was asked whether it could go behind an affidavit sworn by a person claiming litigation privilege, and, if so, in what circumstances and by what means.
Held: The burden of proof is on the party claiming privilege to establish it; An assertion of privilege and a statement of the purpose of the communication over which privilege is claimed in an affidavit are not determinative and are evidence of a fact which may require to be independently proved; it is difficult to go behind an affidavit of documents at an interlocutory stage of proceedings. Where the court is not satisfied on the basis of the affidavit and the other evidence before it that the right to withhold inspection is established, there are four options open to it: 1) It may conclude that the evidence does not establish a legal right to withhold inspection and order inspection; It may order a further affidavit to deal with matters which the earlier affidavit does not cover or on which it is unsatisfactory; It may inspect the documents; At an interlocutory stage a court may, in certain circumstances, order cross-examination of a person who has sworn an affidavit, for example, an affidavit sworn as a result of the order of the court that a defendant to a freezing injunction should disclose his assets.
Judges:
Beatson J
Citations:
[2008] EWHC 1729 (Comm), [2008] 2 CLC 258
Links:
Jurisdiction:
England and Wales
Citing:
See Also – West London Pipeline and Storage Ltd and Another v Total UK Ltd and others Comc 9-Jun-2008
Application for disclosure of defendant’s insurance arrangements. . .
Cited by:
Cited – Property Alliance Group Ltd v The Royal Bank of Scotland Plc ChD 19-Feb-2015
The claimant said that interest rate manipulation by the defendant bank had caused it losses in interest rate derivatives and SWAP agreements. In the course of that the claimants sought disclosure of internal documents. The defendants resisted . .
Cited – Astex Therapeutics Ltd v Astrazeneca Ab ChD 8-Nov-2016
The parties had agreed to work tgether in the development of new drugs, but came to dispute whether certain projects were subject to the agreement. The claimant sought details of the defendant’s internal documents justifying that conclusion. The . .
Cited – ZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .
Cited – Starbev GP Ltd v Interbrew Central European Holding Bv ComC 18-Dec-2013
Challenge to assertion of litigation privilege.
Hamblen J said:
’11. The legal requirements of a claim to litigation privilege may be summarised as follows:
(1) The burden of proof is on the party claiming privilege to establish it . .
Cited – Kyla Shipping Co Ltd and Another v Freight Trading Ltd and Others ComC 22-Feb-2022
Litigation Privilege
Defendants challenged the claimants assertion of litigation privilege and contended for a waiver of any privilege which entitles them to disclosure of additional materials referred to in a witness statement.
Held: ‘I dismiss the waiver of . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 23 March 2022; Ref: scu.271151