Privilege and Redactions: where are we now?

At 3pm on 30 November, the Court of Appeal handed down judgment in the case of West Ham United v E20 Stadium (No.2) which raised issues relating to the scope of litigation privilege and the grounds upon which the Court might be prepared to “go behind” a claim to privilege and inspect controversial documents.

The appeal sought to challenge the decision at first instance of Norris J (see at [2018] EWHC 2784 (Ch)) which was based on the well-known guidance given by Beatson J (as he was) in West London Pipeline and Storage Ltd v Total UK [2008] 2 CLC 258 and the Judge’s interpretation of the recent case of SFO v ENRC [2018] EWCA Civ 2006.

The Court of Appeal also considered the leading cases of Three Rivers (No.6) [2005] 1 AC 610 and Waugh v British Railways Board [1980] AC 521 and the issue of whether internal board discussions regarding litigation are covered by litigation privilege as was found in the lesser known case of Mayor and Corporation of Bristol v Cox (1884) 26 Ch D 678.

This case has followed a spate of decisions at first instance and in the Court of Appeal this year in which the scope and waiver of legal professional privilege have been considered as well as the extent to which a litigant may challenge and/or investigate redacted material: SFO v ENRC; Financial Reporting v Sports Direct [2018] All ER 29; West Ham United v E20 (No.1) [2018] EWHC 2578 (Ch) (judgment of Snowden J); and Sotheby’s v Mark Weiss [2018] EWHC 3179 (Comm) (judgment of Teare J).

Quadrant Chambers is holding a Christmas Seminar which will consider this developing area, including in particular:

·       When documents prepared for litigation are not privileged.

·       How a claim to privilege may be challenged.

·       When documents aimed at settling a claim are not privileged.

·       When internal “strategy” discussions are not privileged.

·       The waiver of legal professional privilege generally.

·       How to manage disclosure which is the subject of aggressive redactions.

·       When the Court may be prepared to inspect challenged documents.

Timings: 5:45pm welcome refreshments for a 6:00pm start. (please note the slightly earlier start time).  Followed by Christmas canapes and mulled wine from 7pm.

For any assistance please email marketing@quadrantchambers.com.

We do hope you will join us at what promises to be an excellent event. Please register using the button below:


 

Paul Downes QC

Paul is recognised as a formidable advocate and cross-examiner who is presently instructed in some of the hardest fought pieces of commercial and banking litigation at the bar.  The directories describe him as “incredibly astute”, “a terrific cross-examiner” and “brave and dogged”.  His advocacy is likewise praised as “powerful”, “phenomenal” and “fearless”.  Paul is leading counsel for West Ham United in their various disputes over the London Stadium (including having appeared for them in the Court of Appeal in West Ham v E20).  Paul is also acting for Sheffield United Limited in their dispute with His Royal Highness Prince Abdullah Al Saud which is listed for trial in May 2019.  Before coming to the Bar, Paul worked for Barclays Bank and is an Associate of the Chartered Banker Institute.  He also previously was appointed an assistant examiner for Institute in banking law and accountancy. He is recommended as a leading silk for banking & finance and commercial dispute resolution in Chambers & Partners UK Bar and for Banking & Finance, Commercial Litigation, Financial Services and Fraud: Civil in Legal 500.

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Simon Rainey QC

Simon Rainey QC is one of the best-known and most highly regarded practitioners at the Commercial Bar with a high reputation for his intellect, advocacy skills and commercial pragmatism. He has a broad commercial advisory and advocacy practice spanning substantial international contractual disputes, energy and natural resources, trade and commodities, and shipping and maritime law in all its aspects, in arbitration and at all Court levels. His practice involves a steady diet of high profile and high value commercial fraud cases, typically involving heavy interlocutory stages centred around pre-emptive strike applications such as worldwide freezing injunctions and anti-suit and other injunctive relief, a recent example of which is the hard fought Gerald Metals v Timis litigation in England, Cayman and the BVI (2017-2018). He has been cited for many years as a Leading Silk in Commercial Litigation / Dispute Resolution by Chambers and Legal 500. He also sits as a Deputy High Court Judge in the Commercial Court. "A fantastically intelligent and tactically astute barrister who is immensely erudite." (Chambers UK 2019); ‘Absolutely charming and probably the best cross-examiner I’ve ever seen.’ (Legal 500 2019).

To view full website profile, please click here.

Joseph Sullivan

Joe specialises in commercial law, banking and finance, commercial fraud and professional negligence. He is recommended as a leading junior in the Legal 500 for banking & finance. He often appears unled against silks and has a particular specialism in multi-jurisdictional disputes both in court and in arbitration and in claims involving both personal and proprietary remedies. This year his instructions have included acting for the Malaysian government in respect of the 1MDB fraud: one of the most notorious and largest kleptocracy claims to come before the English courts, acting for West Ham United in a dispute over its stadium, and appearing as lead counsel in the Supreme Court in a partnership dispute.

To view full website profile, please click here.