Eurasian Natural Resources Corporation Ltd v Dechert LLP

A renewed application for permission to appeal should be granted where the proposed appeal raises an important point of law or practice worthy of consideration by the appellate court. That may include an issue which has not previously been considered by that court and which appears to conflict with other authority. The scope of any implied waiver of legal professional privilege may be sufficiently important to justify permission, particularly where it affects a solicitor who may wish to use the documents for another purpose.

The principle of open justice applies without distinction between different types of proceedings. A private hearing requires a sound legal basis, and prejudice to the parties and the public interest in open justice must be addressed when exercising the relevant discretion.

ENRC challenged bills for professional services provided by Dechert LLP in proceedings for taxation. Roth J concluded that ENRC had waived legal professional privilege only to a limited extent and ordered that the detailed assessment hearing be conducted in private, setting aside the costs judge’s decision.

Dechert challenged the private-hearing order. Permission had previously been refused by Lewison LJ. On renewal, the Court of Appeal considered whether the proposed appeal raised an important point of principle or practice, particularly concerning implied waiver and the circumstances in which a waiver may be limited. The central issue was whether that question warranted consideration by the Court of Appeal as a second appeal.

1. Permission to appeal. Permission was granted on the renewed application. The question whether proceedings against solicitors for taxation of bills involve a general or only a limited waiver of legal professional privilege was an important point of law and practice. It had potentially significant consequences for a solicitor who might wish to use the documents for another purpose.
2. Need for appellate consideration. Roth J’s conclusion was principally based on his own reasoning and on one paragraph of National Westminster Bank v Bonas. The proposed appeal raised a line of authority which had not been considered by the Court of Appeal and which could be said to conflict with other Court of Appeal authority. That made the issue worthy of consideration on a second appeal. The court did not finally determine the scope of the waiver.
3. Private hearing and case management. The fact that Dechert relied on more documents than ENRC considered necessary did not justify treating the entire hearing as private. If a particular document were potentially prejudicial and its necessity were disputed, the judge could determine, as a matter of case management, whether that aspect should be heard in private.
4. Open justice. English law does not distinguish between types of proceedings when applying the principle of open justice. The fact that the proceedings were costs assessment proceedings was therefore not a reason to refuse permission. A good, and in any event sound legal, case had to be established for a private hearing. Any prejudice to ENRC from disclosure, prejudice to Dechert, and the public interest in open justice would fall for consideration when the discretion was exercised.
5. Lewison LJ’s reasons for refusing permission did not justify refusal on the renewed application. The potential wider implications of limited implied waiver for solicitors and for the development of the law warranted permission.

• Court of Appeal (Civil Division): On 9 July 2015, the renewed application for permission to appeal was granted.
• High Court, Chancery Division: Roth J ordered a detailed assessment of Dechert LLP’s bills and directed that the hearing be conducted in private, having concluded that any waiver of legal professional privilege was limited.
• Costs judge: The costs judge’s decision was set aside by Roth J; the judgment does not state its citation.