Sumitomo Corpn v Credit Lyonnais Rouse Ltd

A translation of an unprivileged document which is in the litigant's control is, for legal professional privilege, to be treated as a copy. It reproduces the original information and does not itself introduce confidential matter. Its creation for litigation therefore does not make it privileged.

The protection for a solicitor's selection of documents applies to a selection from third-party documents where disclosure would reveal the trend of legal advice. It does not prevent disclosure of copies or translations selected from the client's own disclosable documents. The court nevertheless retains a discretion over production and inspection where privilege is absent.

Sumitomo alleged that Credit Lyonnais Rouse Ltd had dishonestly assisted, or knowingly procured, breaches of duty arising from unauthorised copper trading by a Sumitomo employee.

During regulatory investigations and litigation, Sumitomo's lawyers reviewed a large collection of Japanese documents and commissioned English translations of selected documents. Sumitomo claimed legal professional privilege for 725 translations. It said that they had been created for litigation and that disclosure would reveal its lawyers' selection, enquiries and advice.

Andrew Smith J rejected both grounds of privilege. Sumitomo appealed. The central issues were whether translations of unprivileged documents in the client's control attract privilege because they were made for litigation, and whether the lawyers' selection of documents for translation could itself make the translations privileged.

1. Appeal dismissed. The court upheld Andrew Smith J's rejection of the claim to privilege.

2. A translation of an unprivileged document in the control of the party claiming privilege is equivalent to a copy for this purpose. Both processes seek to reproduce the sense and information in the original as accurately as practicable. Neither process, without more, adds confidential material. Thus, although a document must ordinarily have been created for the dominant purpose of litigation or legal advice, that fact cannot make privileged a translation which is merely a reproduction of an unprivileged original in the client's control.

3. The principle in Lyell v Kennedy (No 3) (1884) 27 Ch D 1 CA protects a solicitor's selection of third-party documents where production would betray the trend of advice given to the client. It does not extend to copies or translations selected from the client's own disclosable documents. Such an extension would allow a party to withhold documentary evidence which it possessed before the selection merely because lawyers had selected it for advice or litigation. Dubai Bank Ltd v Galadari (No 7) [1992] 1 WLR 106 was wrongly decided on that point.

4. The absence of privilege does not make production and inspection automatic. The court retains a discretion to control their terms so as to secure the fair disposal of the proceedings while taking account of other legitimate concerns. That discretion was not challenged on this appeal.

5. The court added that the first-instance judge's criticism of Mr Vigrass's evidence about possible prejudice in United States proceedings was unnecessarily harsh. It found no basis for any suggestion that he had deliberately exaggerated Sumitomo's case.

1. Court of Appeal (Civil Division) Dismissed Sumitomo's appeal and upheld the rejection of its claim to legal professional privilege for the translations.

2. High Court, Queen's Bench Division Andrew Smith J, by an order dated 14 February 2001, rejected the claim to privilege and ordered inspection. The citation is not stated in the judgment.