Expandable Ltd. & Ors v Rubin

A document mentioned in a witness statement is not automatically available for inspection under CPR 31.14. The general procedures for claiming privilege under CPR 31.19 apply equally to documents mentioned under CPR 31.14. A bare reference to a privileged document, or a description of its subject matter and purpose, does not waive privilege unless its contents are deployed or disclosed. The test for a document being mentioned requires a direct allusion, rather than an inference from the statement. The court may exceptionally require an insolvency office-holder to disclose otherwise privileged material under its supervisory jurisdiction, but only where disclosure is necessary for the proper determination of the proceedings. The appeal was dismissed, although permission for a further appeal was granted on the CPR 31.14 issue.

Expandable Ltd and Prime Trust Corporation appealed against an order of Registrar Simmons dated 21 June 2007. The order dismissed their application for disclosure and inspection of a solicitor’s letter sent to Rubin, the supervisor of a failed individual voluntary arrangement.

The appellants relied principally on CPR 31.14, because Rubin’s second witness statement referred to the solicitor having written to him and enclosed an interview note. They also relied on CPR 31.12 and, alternatively, the court’s supervisory jurisdiction over officers of the court under ex parte James. Rubin accepted that the letter was privileged and contended that privilege had not been waived. The central issues were whether the letter had been mentioned within CPR 31.14, whether privilege had been waived, and whether supervisory disclosure was necessary.

1. The appeal was dismissed. Permission to appeal was granted because the construction of CPR 31.14 and its relationship with legal professional privilege raised an important point, but the Registrar’s order was upheld. Costs were awarded to the appellant in the sum of £7,500, payable within 14 days.

2. CPR 31.14 does not create an alternative inspection regime which excludes privilege. CPR 31.19(3)–(5) is of general application and governs claims to withhold inspection of documents falling within CPR 31.14 as well as CPR 31.12. This construction respects the fundamental nature of legal professional privilege and is compatible with article 6 principles. The court rejected the submission that merely mentioning a privileged document necessarily waives privilege.

3. The applicable test is whether there is a direct allusion to the document, rather than a reference by inference. The words that Mr Zaidi “wrote” to Rubin could describe different documents, and the witness statement did not rely on the letter’s contents. CPR 31.14 therefore did not apply.

4. Alternatively, there was no waiver. Describing the subject matter, purpose or effect of a privileged document does not disclose its contents. Waiver may arise where a party deploys or relies on privileged material, but the letter was not deployed in that sense. The distinction between mere reference and deployment, explained in Nea Karteria Maritime Company Ltd v Atlantic and Great Lakes Steamship Corporation and followed in later authority, was decisive.

5. The court accepted that, in a proper and probably rare case, its supervisory jurisdiction over an insolvency office-holder could require relevant material, including otherwise privileged material, to be produced. That jurisdiction did not justify disclosure here. The letter was unnecessary for determining the dispute because the appellants could use the disclosed source material and question Rubin or Clarke directly.

1. High Court (Chancery Division): Registrar Simmons dismissed the application for disclosure and inspection on 21 June 2007.

2. High Court (Chancery Division): The appeal was dismissed. Permission to appeal was granted on the CPR 31.14 privilege issue.