Raiffeisen Bank International AG v Asia Coal Energy Ventures Ltd & Anor

Requests for further information must be confined to matters reasonably necessary and proportionate to enable a party to prepare its case or understand the case it must meet. Specific disclosure remains discretionary and depends on relevance, control and the overriding objective.

Underlying instructions given by a client to its solicitors remain confidential and legally privileged where they form part of the continuum of communications made in a relevant legal context. A solicitor’s independent confirmation to a third party does not, without more, waive that privilege. Requests directed to the subjective intentions of individuals are generally unnecessary where the pleaded issue is the objective construction of a representation.

Raiffeisen Bank International AG brought claims against Asia Coal Energy Ventures Ltd and Ashurst LLP arising from a proposed acquisition financed by a third party. Ashurst had confirmed that it held US$85 million and had irrevocable instructions concerning the funds.

Raiffeisen applied for further information and specific disclosure, including the underlying instructions given to Ashurst, documents concerning changes to those instructions, client-account information and information about Ashurst personnel’s understanding of the Confirmation. The central issues were whether the requested material was privileged and confidential, and whether the requests were reasonably necessary and proportionate.

1. The court ordered disclosure and inspection of the balance of Ashurst’s client account. That information was confidential but not privileged and was relevant to whether the Confirmation accurately recorded receipt and retention of the funds. The Disclosure Application was otherwise refused in relation to the underlying instructions and related documents.

2. Under CPR 18.1 and PD18 paragraph 1.2, a request must be strictly confined to information reasonably necessary and proportionate to enable a party to prepare its case or understand the case it has to meet. Under CPR 31.12, specific disclosure is discretionary. The court must consider all the circumstances, the overriding objective, relevance and whether the documents are or have been within the other party’s control.

3. Legal professional privilege is absolute where it applies. Confidentiality is an essential condition of legal advice privilege. The principles in Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610, Nationwide Building Society v Various Solicitors [1999] PNLR 52 and Balabel v Air India [1988] Ch 317 were applied.

4. The underlying instructions from SM Multiartha remained confidential. Ashurst gave an independent assurance to Raiffeisen rather than communicating its client’s instructions as agent. The Confirmation therefore did not authorise disclosure of the underlying communications or amount to an implied waiver. The court distinguished Conlon v Conlons [1952] 2 All ER 462 and treated the case as analogous to Ramac Holdings Ltd v Brachers [2002] EWHC 1683 (Ch).

5. The instructions formed part of a continuum of communications concerning legal advice on the financing transaction and protection of the client’s position. They were therefore privileged, even if the documents did not themselves contain advice on legal principles. Communications shared with ACE could also retain privilege where shared confidentially, and it was premature to order their disclosure.

6. The Second RFI Application was refused. The pleaded meaning of the Confirmation was an objective question. Identifying the individuals who formed a particular view, or obtaining information to support a possible rectification claim, was not shown to be necessary or proportionate. Requests 3–6 sought information to advance a different, unpleaded case.