Sinclair Roche & Temperley (a firm) v Somatra

Where a party seeks production of documents claimed to be privileged, the Court of Appeal cannot compel production except on terms to which the privilege claimant consents. The court cannot impose a non-waiver provision covering other documents. A late application may properly be refused where it conflicts with an earlier undertaking, raises possible disputes about admissibility or waiver, seeks only a selection of relevant documents, and risks an adjournment. Voluntary production remains possible on terms agreed with the privilege claimant.

The appellant applied shortly before the appeal for an order requiring HFW to produce correspondence relating to the original action, including communications concerning settlement and Mr Domingo’s authority. Earlier, the appellant had sought the relevant files, but privilege was claimed. An order dated 9 October 2001 recorded an undertaking not to issue or pursue further summonses against Arig or HFW.

After permission to appeal had been granted, the appellant sought voluntary disclosure. HFW, having taken instructions from Arig, offered further documents on terms requiring an order and preserving privilege over documents not produced. Arig appeared on the application and consented only to those terms. The respondent opposed the application on grounds including delay, the earlier undertaking, possible waiver of privilege, incomplete disclosure and the need for an adjournment. The central issue was whether the court should order production on the proposed terms.

The application was refused. This was the judgment of the court.

1. The court was concerned only with whether to order production of the documents sought. It was common ground that the court had no jurisdiction to do so except on terms to which Arig consented.
2. The application was not initiated by the court, despite the suggestion in the appellant’s letter. If Arig chose voluntarily to produce documents on agreed terms, that was unobjectionable. If it refused, the court considered that it should not compel production of documents over which privilege was claimed.
3. The court could not order that production of documents would not waive privilege over other documents. The respondent was entitled to keep the question of waiver open, and the court had not heard argument on or been asked to determine that issue.
4. The timing and circumstances also made an order inappropriate. The application was made late, after permission to appeal had been granted and in the context of an earlier undertaking. Any documents produced might lead to substantial arguments about whether they could be admitted, whether privilege had been waived, and whether all relevant documents should be disclosed. An adjournment might consequently be required.

The court therefore refused to order production and left the issue of waiver undecided.

• Court of Appeal (Civil Division) — on appeal from the Queen’s Bench Division before Mr Justice Morison, the court refused the late application for production of documents: [2003] EWCA Civ 1475.