Imerman v Tchenguiz & Ors

Pre-existing documents do not become protected by legal professional privilege merely because they are sent to lawyers for advice or litigation. Annotations may be privileged only where they reveal the trend of legal advice. Underlining or highlighting alone will not ordinarily do so. The selection doctrine applies narrowly and does not protect documents already in the relevant party’s possession simply because lawyers selected or marked them. Confidential schedules to orders made otherwise than in public are not generally available under CPR 5.4C(1)(b). Compliance with an order must be secured through the order’s terms unless it is properly varied. Where substantial material requires review, the court may defer an unless order while directing delivery up by a specified date.

The claimant sought an “unless” order against the defendants for failing to comply with delivery-up and deletion obligations imposed by an order dated 31 July 2009. The order required delivery or deletion of confidential information, subject to an exemption for material protected by legal professional privilege.

The defendants relied on privilege, the need to retain documents for a pending application for permission to appeal and trial preparation, and possible insurance requirements. The central issues were which documents and markings fell within the privilege exemption, whether confidential schedules were publicly accessible, and whether the defendants’ practical concerns justified further retention.

1. Delivery-up obligations. The defendants had not applied to discharge or vary the 31 July order. Practical difficulties did not justify non-compliance. Any variation required a properly formulated application or, at minimum, a draft variation giving the claimant an opportunity to respond.
2. Pre-existing documents and annotations. Pre-existing documents did not become privileged merely because they had been sent to lawyers as part of the instructions. The documents were therefore subject to delivery up, subject to redaction of genuinely privileged annotations.
3. Markings and selection. The relevant question was whether a marking would “give a clue” to the trend of legal advice, applying Lyell v Kennedy (No 3) (1884) 27 Ch.D 1. Underlining or highlighting alone would not ordinarily satisfy that test. The absence of annotations did not itself reveal advice. The selection doctrine did not assist because the documents had already been in the defendants’ possession and had not entered it through a process of selection. The doctrine had been construed more narrowly in Sumitomo Corp v Credit Lyonnais Rouse Ltd [2002] 1 WLR 479.
4. Confidential schedules. Confidential schedules attached to orders made otherwise than in public were not brought into the public domain by CPR 5.4C(1)(b). Their disclosure to extraneous persons could constitute contempt of court. The schedules identified in the 31 July order therefore had to be returned.
5. Practical requirements and order. Retention of the summary-judgment bundles and written submissions was sufficient for the pending appeal application. Further documents required for trial preparation could be sought by agreement or application. The court directed delivery up, subject to the stated qualifications, by 18 November 2009 at 4.30 pm, but deferred making an unless order because of the volume of material and indicated that submissions on timing would be heard.