Edwardian Group Ltd & Anor v Singh & Ors

Legal advice privilege extends beyond communications themselves to material that reproduces, summarises or otherwise reveals their substance. A document is privileged where its selection or contents provide a definite and reasonable foundation for inferring the substance or trend of legal advice; mere speculation is insufficient.

Litigation-funding documents were potentially relevant where the party relied on funding efforts to explain delay. Under the Civil Procedure Rules 1998, tactical advantage alone does not create a general discretion to withhold inspection of relevant, non-privileged documents. No order was made on either disclosure application.

The proceedings were unfair-prejudice proceedings under section 994 of the Companies Act 2006. Minority shareholders sought, principally, an order requiring the other shareholders to purchase their shares at a fair value.

The First Respondent applied for inspection of redacted litigation-funding documents and disclosure and inspection of documents held by former solicitors, Magwells. The funding documents were said to bear on whether the Petitioners had actively sought funding and whether delay before presentation of the petition was improper. The Magwells documents were potentially relevant but subject to an asserted solicitor’s lien and likely largely duplicated documents already disclosed.

1. Funding documents. The Petitioners’ reliance on their efforts to obtain funding made the documents potentially relevant to standard disclosure. The extent of redaction could affect whether they proved their explanation for delay at trial.
2. Privilege. Applying Three Rivers DC v Bank of England (No 5) [2003] QB 1556 and Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610, privilege extended to material evidencing the substance of privileged communications. Following Lyell v Kennedy (No 3) (1884) 27 Ch D 1 and Ventouris v Mountain [1991] 1 WLR 607, it could cover material whose selection or contents gave a clue to, or betrayed the trend of, legal advice. The inference had to have a definite and reasonable foundation.
3. The court did not adopt the narrower approach in Financial Services Compensation Scheme Ltd v Abbey National Treasury Services plc [2007] EWHC 2868 (Ch). It was not reasonably certain that the privilege claim had been improperly made.
4. CPR rules 31.3, 31.5, 31.12 and 31.19 governed disclosure and inspection. Tactical advantage alone did not justify withholding relevant, non-privileged documents. The court should nevertheless be cautious before using rule 31.12 to withhold proportionate inspection on that ground.
5. No order was made concerning the litigation-funding documents, current-funding documents, or Magwells documents. Likely duplication, limited significance, and the Petitioners’ likely reasonable efforts justified the latter conclusion.