Documents Of Dissolved Company Remained Privileged Unless No Prospect Of Company Being Restored To The Register

A High Court Master has found that the court must maintain privilege in the documents of a dissolved company unless and until there is no prospect of the company being restored to the register: Addlesee v Dentons Europe LLP: [2018] EWHC 3010 (Ch).

The decision contrasts with Garvin Trustees Ltd v The Pensions Regulator [2014] UKUT B8 (TCC), in which the Upper Tribunal held that documents of a dissolved company incorporated in Northern Ireland, which had been passed by its liquidators to a director, did not remain subject to privilege and so were disclosable. In the Master's view, it was key to the judge's reasoning in Garvin that (as the judge believed) the company could no longer be restored to the register as the applicable time limit had expired.

This is a decision of a Master and therefore not binding on a future court. However, if the same approach is taken in other cases, it suggests that the documents of a dissolved company will continue to be subject to privilege unless and until the company can no longer be restored to the register. In the case of a UK company, that could mean indefinitely, since under section 1030(1) of the Companies Act 2006 an application for restoration can be made at any time for the purpose of bringing proceedings against the company for damages for personal injury.

Background

The claimant investors brought claims for over €6.5 million which they had lost as a result of an allegedly fraudulent investment scheme operated by Anabus Holdings Limited, a Cypriot company which has since been dissolved (“the Company”). The defendant, which previously operated as Salans LLP, acted for the Company during the life of the scheme. The claim in summary is that the defendant recklessly and/or negligently enabled the scheme and induced the claimants to invest by endorsing it as the Company's legal adviser.

The claimants applied for a declaration that the documents in the defendant's client files for the Company are not protected by legal professional privilege.

The defendant's solicitors sought to contact the former directors of the Company, to ask if they were willing to waive privilege and confidentiality, but received no response. The Crown disclaimed its interest in the Company's documents, which vested in the Crown as bona vacantia at common law, expressly noting that it did not either assert or waive any legal professional privilege that may attach.

Both sides agreed that Garvin was binding on the court in the present...