Imerman v Imerman

A claim to privilege does not generally prevent the court from requiring a sufficiently described list of documents. Documents may be listed by category where appropriate, with the relevant dates and a concise description. The party claiming privilege must state the right or duty relied on and give grounds sufficiently specific to enable the opposing party to assess whether the claim can properly be challenged. The court need not require disclosure of the documents’ contents, the writer’s analysis, or the purpose for which they were created. In family proceedings, the court may use the Civil Procedure Rules 1998 as guidance where the Family Procedure Rules contain no specific provision.

This was a directions determination in financial remedy proceedings between a wife and husband. The wife sought disclosure of communications between the husband, his solicitors and trustees or trust companies. The communications were potentially relevant to whether certain trusts were nuptial and whether their assets were resources available, or likely to be available, to the husband.

The husband claimed common interest privilege and submitted that the application should be dismissed summarily. The intervening beneficiaries contended that the issue required a lengthy hearing. The central issue was what information should be provided to enable the wife to assess and, if necessary, challenge the privilege claim.

1. Directions given. The court declined to determine the privilege issue summarily. The application was to be dealt with by directions at this stage, having regard to the course of the litigation and the need to address the issue in a single hearing.
2. There was no specific rule in the Family Procedure Rules governing privilege. The disclosure provisions in the Civil Procedure Rules 1998, including rules 31.10 and 31.19, were therefore relevant guidance.
3. The respondent was directed to list communications within the category identified in the wife’s request. The documents could be listed by category rather than individually, provided that the categories were sufficiently clear and the dates of the communications were given.
4. Where privilege was claimed, the respondent had to state in writing that there was a right or duty to withhold inspection and specify the grounds relied on. Those grounds had to contain sufficient elaboration to enable the wife, with legal advice, to determine whether the claim might properly be challenged.
5. The order did not require disclosure of the contents of privileged documents, the writer’s analysis, or the purpose for which the documents were created. A general claim that requiring a list would itself undermine privilege was rejected.

First-instance directions determination. No appellate history was stated in the judgment.