Cards On The Table Please! Litigation Privilege And Adversaries

Litigation privilege is an auxiliary principle that buttresses the constitutional right of access to justice and should be kept within justifiable bounds. Without litigation privilege, a party's access to justice is undermined.1

In recent years, the English courts have been faced with questions relating to litigation privilege.2 However, asserting litigation privilege in respect of communications between a plaintiff and a defendant has never been dealt with by the courts of Jersey until now. The parameters of litigation privilege have been further clarified by the Royal Court of Jersey in a decision handed down on Thursday 17 January 2019 in the ongoing civil dispute CMC Holdings Ltd & Anor v Forster, RBC Trust Company (International) Limited and Regent Trust Company & Ors [2019] JRC 004A. In this case, the Court was asked to determine whether certain communications that took place between opposing parties were subject to litigation privilege. In its judgment, the Royal Court has provided a useful insight into the Jersey courts' approach to claims to litigation privilege and highlighted the implications of allowing adversaries to claim litigation privilege.

Litigation privilege

In short, litigation privilege belongs to the client. It protects (i) written or oral communications between a client or lawyer and a third party or (ii) documents produced by or on behalf of a client or his lawyer which came into existence when litigation commenced or was reasonably contemplated. The sole or dominant purpose of these communications is litigation.3

Background

The underlying dispute in this case is the plaintiffs' claim for relief in respect of its allegation that the defendants' participated in a secret scheme under which funds due to the plaintiffs were diverted at the instruction of certain directors of the plaintiff companies in breach of their fiduciary duties.

The plaintiffs claim that a certain financial services business, now under the ownership of RBC Trust Company (International) Limited, dishonestly assisted in that breach of fiduciary duty.

The issue of litigation privilege arose during the course of an ongoing interlocutory dispute between the plaintiffs and RBC Trust Company (International) Limited and its subsidiary Regent Trust Company ("RBC") as to the plaintiffs' discovery.

In the latest round of interlocutory proceedings, the plaintiffs applied to limit discovery and RBC applied for specific discovery. The plaintiffs sought to...