No. FD09D00047
Neutral Citation Number: [2012] EWHC 4047 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Monday, 17th December 2012

Before:

MR. JUSTICE MOYLAN
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B E T W E E N :

	ELIZABETH TCHENGUIZ IMERMAN	Petitioner

-  and  -

	VIVIAN SAUL IMERMAN	Respondent

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MR. RICHARD HARRISON QC and MR. D. HAGEN  (instructed by Withers LLP) appeared on    behalf of the Petitioner.

MR. CHARLES HOWARD QC, MR. H. OLIVER and MR. J. HILLIARD  (instructed by Hughes Fowler Carruthers) appeared on behalf of the Respondent.

MR. CHRISTOPHER POCOCK QC and MISS LAURA MOYS (instructed by Mills & Reeve LLP) appeared on behalf of the beneficiaries.

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J U D G M E N T
MR. JUSTICE MOYLAN:

Judgment re Common Interest Privilege

1.	I am now determining what directions, if any, I should give in respect of an informal application made by the wife for disclosure by the husband of certain communications in respect of which he claims privilege.  It is asserted by           Mr. Harrison on behalf of the wife that the documents which are sought are potentially relevant to two central issues, as he describes them.  First, whether certain trusts are nuptial; and, secondly, whether the assets of those trusts are resources available, or likely to be available, to the husband.  

2.	The issue has developed in this way:  On 8th August, 2011 the wife's solicitors wrote to the husband's solicitors requesting as follows:   

"Please could you provide copies of all communications, whether written or in the form of an attendance note of an oral communication passing between your client, your firm, any other advisers engaged by him and Rozel  Trustees (Channel Islands) Ltd., STC International Ltd. Alto Trust Co. Ltd., Primafides (Suisse) SA and/or any other manifestation of the Stonehage Group (and/or anyone acting on their behalf) relating to our client's application for variation of trust, joinder and disclosure as issued on 13 May, 2011".

3.	The husband's solicitors replied on 20th September, 2011 as follows:  

"Any communications and/or documents of the type you request would be, insofar as they existed, confidential communications between my client or my firm and third parties or their advisers between whom a common interest in the subject matter existed and which, therefore, are or would be, by their very nature, privileged. Accordingly, you are not entitled to what you seek.  This assertion of privilege (a) should not be taken as an admission that there were any such communications in any event; and (b) does not permit, as a matter of law, any inferences to be drawn".

4.	On 2nd December, 2011 Mrs. Justice Baron ordered that the wife's application for disclosure of communications between the husband and the trustees, as referred to in the letter of 8th August, 2011, be adjourned to be heard at, effectively, this part-heard directions hearing.  

5.	Mr. Howard, on behalf of the husband, submits that the issue is so self-evident that I should deal with it now and dismiss the application for disclosure on the basis that the information is not relevant and, even if it was relevant, the claim for common interest privilege or other privilege is transparent.  

6.	Mr. Pocock, on behalf of the interveners, says that the issues are so complex that it will take five days to resolve.   

7.	Mr. Harrison sits in the middle and says that the issue would take two to three days to resolve.  

8.	Given the course of the litigation so far and, in particular, that this issue was set up for hearing I do not propose to deal with it in a summary way.  I remind myself that in the written submissions prepared by Mr. Howard for the hearing in June it was said, "If the wife really intends to persist [in this application] then the entire matter should be dealt with at a single hearing of approximately three days dedicated to it rather than approach it in a piecemeal fashion".

9.	I propose to deal with the issue on the basis that I am giving directions only.

10.	There is no specific rule in the Family Procedure Rules which governs the issue of privilege. The general rule is that parties are required, after the preliminary exchange of documents, to make such disclosure as may be required by the court.  I have therefore, for guidance, been referred to the Civil Procedure Rules and other documents, including extracts from textbooks and an authority from the Hong Kong Court of First Instance.

11.	CPR 31.10 deals with the procedure for standard disclosure. It provides that each party has to serve on the other a list of documents in the relevant form.  31.10(3) provides, 

"The list must identify the documents in a convenient order and manner and as concisely as possible ....

(4)	"The list must indicate – 

(a) those documents in respect of which the party claims a right or duty to withhold inspection;     

	Practice Direction 31A, at para. 3.1, stipulates that the list should be in Form N265.  Paragraph 3.2 provides:

"In order to comply with Rule 31.10(3) it will normally be necessary to list the documents in date order, to number them consecutively and to give each a concise description (e.g. letter, claimant to defendant). Where there is a large number of documents all falling into a particular category the disclosing party may list those documents as a category ----"  

Paragraph 4.5 provides:

"If the disclosing party wishes to claim that he has a right or duty to withhold a document, or part of a document, in his list of documents from inspection (see rule 31.19(3)), he must state in writing: 

(1) that he has such a right or duty, and 

(2) the grounds on which he claims that right or duty".

	CPR Rule 31.19, which is headed "Claim to Withhold Inspection or Disclosure of a Document" provides as I have just recorded in sub-para. (3).  It also provides in sub-para. (4), 

"(4) The statement referred to in paragraph (3) must be made–
(a) in the list in which the document is disclosed; or
(b) if there is no list, to the person wishing to inspect the document".

12.	The footnote in the White Book to Rule 31.10 says, in 31.10.3, under the heading "Description - Privileged Document": 

"So far as describing documents is concerned, there is a difference between documents for which privilege from production is claimed and other documents.  As regards privileged documents the description is not for the purpose of enabling the other party to learn the contents of the document or to test the truth of the plea of privilege.  Nor is it for the purpose of causing the party giving disclosure to furnish evidence against themselves.  It is not required that the dates of the documents should be specified, nor the names of the makers.  'Correspondence between the defendant and his solicitors for the purposes of obtaining legal advice' is sufficient".   

That is a quotation from the authority referred to in the paragraph.   

"This is the long-established and widespread practice of the profession. While it could be argued that it is not in accordance with the strict terms of the requirement in the CPR to identify documents in the list, any stricter interpretation of the requirement to list such documents would risk abrogating the privilege in a manner that does not seem to have been intended by the CPR".

Then it refers to Charles Hollander, QC's book, Documentary Evidence [2006], the 9th edition at p.253.  It concludes by saying,

"Where other objections to inspection are claimed there is a similar practice as to that used for privileged documents, i.e. the category of objection is listed, but the individual documents usually are not.  Again, this common practice is maintained notwithstanding that the effect is to not actually disclose the existence of the individual documents".

13.	In addition, I have been referred to a passage in Matthews & Malek, Disclosure, 4th ed., Chapter 6 at p.181, which reads, 

"There are three main requirements in relation to documents in respect of which it is claimed that they are privileged from production.  First, the documents for which privilege is claimed must be listed in Part 2 of the list.  However, this is to identify the documents: it is not necessary to specify the provenance, makers or the date of such documents.  Form N265 provides that the documents should be listed and numbered.  It is not the usual practice to individually number every document covered by legal professional privilege, although in certain cases this may be the appropriate course, particularly where there is an issue as to whether privilege is being properly claimed.

Secondly, the nature of the documents must be stated and, in the case of classes of documents, the class must be clearly defined so that it is possible to identify documents which fall within the class.  Thirdly, the ground of privilege and the grounds giving rise to the claim for privilege must be clearly stated.  In particular, the wording must not be so wide that it is impossible to be sure it contains no description of documents which came into existence in circumstances not attracting privilege.  It is not enough to state that the documents are privileged; the factual basis of the grounds giving rise to that claim must be set out".  

14.	The Hong Kong authority to which I have been referred is a decision of a           Mr. Justice Kwan reported as In the matter of Kong Wah Holdings Limited (In Compulsory Liquidation).  In that case the liquidators sought an order in the following terms, 

"(1)	the Respondent do forthwith produce, supply or otherwise make available to the Applicants and the agents or representatives duly appointed by them a list of the documents being withheld from production on the grounds of legal professional privilege, detailing the date of the particular document, the author, the addressee, a brief description of its nature (without disclosing its contents) and the ground of privilege relied upon ---"

	At the end of his judgment at para. 70 he says, 

"I am not persuaded by Mr. Harry that to require a list of the privileged documents with the information sought by the liquidators would undermine or destroy the privilege claimed. The line of cases adopting Kadlunga have demonstrated there could be a middle ground in requiring an adequate description of the privileged documents to enable the other side to assess the propriety of the claim that stopped short of a disclosure, directly or indirectly, of the contents of the document.  In seeking a 'brief description' of its nature; in this instance the liquidators are not seeking a description of the nature of the advice sought or given, but merely the nature of the document".

Then, in para. 71:

"The direction sought by the liquidators of requiring a list of the privileged documents would seem to me a sensible interim measure, giving sufficient information to the liquidators to determine whether they should challenge the claim for a privilege in respect of any document.  The matter could then come back to the court for determination of the claim for privilege of any disputed document".

15.	Like Mr. Harry, before me Mr. Howard has submitted that the wife is, in this case, trying to invade the privilege and is asking for an order which, by its very nature, undermines the privilege.  I, like Mr. Justice Kwan, am not persuaded by that argument.  In my view the footnote in the White Book and the structure of the Civil Procedure Rules demonstrate why.  The footnote specifically refers to it being sufficient for documents in respect of which privilege is claimed to be identified by, and I repeat, the following descriptive example:  'Correspondence between the defendant and his solicitors for the purposes of obtaining legal advice'.   I do not, in general terms, consider that the direction which is sought by the wife is dissimilar in its scope to that broad example.  

16.	The order which is sought, with the insertion of the words "or relevant to", repeats the wording which appeared in the letter of 6th August, 2011.  The proposed direction in somewhat discursive terms reads as follows:

"Within 28 days the respondent shall list the same in date order, number them consecutively and give a concise description, e.g. Letter Hughes Fowler Carruthers to Rozel.  Where there is a large number of documents all falling into a particular category the respondent may list those documents as a category rather than individually, e.g. if such exists 35        e-mails passing between Hughes Fowler Carruthers and Clifford Chance and then dates ...

If and to the extent that the first respondent objects to inspection of any document identified he or his solicitors shall, in accordance with the Family Procedure Rules 21.3 state in writing, supported by a statement of truth, in relation to each such document or category of documents the right to withhold inspection is claimed on the grounds on which that right is claimed.  Such statement shall be sufficiently specific to show the writer's analysis of the documents and/or the purpose for which they were created and/or if common interest privilege is asserted, the nature of the common interest".

17.	What I propose to order is that the first respondent shall list the documents which fall within the category of communications as set out in the letter of 8th August, 2011.  I make it clear - and the wording of the order will have to reflect this - that the communications can be listed by category - so, for example, communications passing between the husband and any of the named companies identified in the letter - with the dates within which those communications were made.   So far as the nature of the communication is concerned, in my view the claim for privilege should, in essence, follow the practice as set out in the CPR so that insofar as a claim for privilege is made in respect of any document or class of documents, or a part of a document, then it must be stated in writing that there is such a right and the grounds on which that right is claimed.  The grounds on which the right is claimed must be sufficient to enable the wife to determine whether the right might, or can, be challenged.  I specifically do not propose to set out in my order the information required to enable that to be sufficiently stated.  I do not include within the order a requirement to show the writer's analysis and/or the purpose for which the documents were created.   I simply require, as I say, sufficient elaboration of the grounds to enable the wife, as advised, to determine whether or not the claim for privilege should, or can, be challenged.