Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2022] EWHC 1136 (Comm)

• Published date: 27 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Gatehouse Chambers
• Author: Joshua Griffin and Amy Held

Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2022] EWHC 1136 (Comm)

Background

In this case, the High Court dealt with the novel question of law as to whether the identity of the persons who are authorised to give instructions to solicitors on behalf of a corporate client in ongoing litigation a matter which is covered by litigation privilege.

The Claimant ('Loreley') brought proceedings for fraudulent misrepresentation and unlawful means conspiracy in relation to its purchase of purchase of US$100m of notes, which formed part of a collateralised debt obligation transaction, from the Third Defendant in 2007.

The Defendants ('Credit Suisse') raised a limitation defence, which raised the issue of what facts and matters relevant to its claim Loreley knew or could with reasonable diligence have discovered before November 2012 or 2015.

Loreley was an SPV with no employees. Its directors were 'supplied' by a professional services company. Credit Suisse contended that, in reality, the decisions of Loreley were made by two German banks: IKB Deutsche Industriebank AG ('IKB') and its successor, Kreditanstalt fur Wiederaufbau or KfW Bankengruppe ('KfW') (together, 'the Banks'), albeit then formally approved by directors. Credit Suisse therefore contended that the knowledge of the Banks was relevant to the issue of limitation and, as part of this, alleged that KfW initiated the present proceedings and appeared to be providing instructions to Loreley's solicitors ('RPC') on behalf of Loreley.

A Part 18 Request from Credit Suisse asked Loreley to confirm whether this was the case. Lorerely declined to do so on the grounds "the that information sought is irrelevant and 'by its nature, subject to legal professional privilege'".

The Present Application

Accordingly, Credit Suisse made an application for orders that "the names of the individuals who are, or have been, authorised to give instructions to RPC in relation to the litigation are not subject to [legal professional privilege];" that Loreley provide a full response to the relevant CPR Part 18 Request; and that certain documents provided by Loreley with redactions be provided without those redactions.

Before the court, Loreley accepted that the question who gives instructions on behalf of Loreley to RPC is "relevant [as a small building block] for Credit Suisse's contention that the claims against it are time barred". The sole issue was, therefore, legal professional privilege

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