UTB LLC v Sheffield United Ltd & Ors

Practice Direction 51U applies to all relevant existing and new Business and Property Courts proceedings from 1 January 2019. A disclosure order made earlier under CPR Part 31 remains undisturbed, but it does not exclude later disclosure applications from the Pilot.

Extended disclosure, and inspection of documents said to be privileged, must be necessary for the just disposal of the proceedings and reasonable and proportionate. It must be directed to defined key issues, rather than used tactically. Legal advice privilege may protect advice from a lawyer who also performs commercial functions, but only where the communication occurs in a relevant legal context and forms part of the lawyer-client advisory relationship.

This was a pre-trial review in expedited proceedings concerning control of Blades Leisure Ltd and the exercise of contractual options connected with Sheffield United Football Club. UTB sought specific performance of a share sale. Sheffield United Ltd defended, counterclaimed, advanced a conspiracy claim and petitioned for relief under section 994 of the Companies Act 2006.

The court determined whether the Disclosure Pilot applied despite earlier standard-disclosure orders, whether Sheffield United could make late amendments, and whether further disclosure should be ordered. The disclosure requests included communications between Prince Abdullah and Mr Giansiracusa, claimed to be privileged, records of a strategy meeting, travel and diary information, and financial information. Earlier interim proceedings had been decided by Fancourt J on 29 June 2018: [2018] EWHC 1663 (Ch).

1. The applications were granted only in part. Sheffield United was permitted limited agreed and uncontroversial amendments, including allegations concerning the company’s loss-making position and need for investor support. The proposed allegations about Prince Abdullah’s financial substance were refused because they would introduce a new peripheral issue shortly before an expedited trial.

2. Practice Direction 51U applied to the subsisting proceedings. Paragraph 1.2 applied the Pilot to existing and new Business and Property Courts cases. Paragraph 1.3 preserved a disclosure order made before 1 January 2019, but did not remove the case from the Pilot. The court would construe the Pilot so that its concepts, including Issues for Disclosure and Extended Disclosure, worked effectively in proceedings where an earlier order had been made under CPR Part 31.

3. Further disclosure had to be necessary for the just disposal of the proceedings and reasonable and proportionate. The Pilot required attention to defined key issues, probative value, documentary burden and the need for an expeditious and proportionate trial. It was not a tactical mechanism for exploring every disputed allegation.

4. The court inspected two redacted emails under paragraph 14.3 because that limited step was necessary and proportionate before trial. It accepted that a lawyer may act both as legal adviser and as a client’s man of business. Privilege depended on whether the communication was made in a relevant legal context concerning the client’s rights, liabilities, obligations or remedies. On inspection, the emails formed part of legal advice about rights and possible breaches under the parties’ agreements. The claims to legal advice privilege were valid.

5. The wider challenge to privilege failed. The evidence showed that the solicitors had reviewed the documents with the distinction between legal, commercial and director roles in mind. Inspection of approximately 500 further documents was neither necessary nor proportionate. The remaining requests for strategy-meeting material, passports, diary-source information and financial records were also refused because they were unlikely materially to assist resolution of the central issue: whether UTB lawfully transferred shares so as to avoid the asserted contractual consequences.

High Court (Chancery Division): This was a first-instance pre-trial review. The judgment records an earlier interim decision of Fancourt J dated 29 June 2018, [2018] EWHC 1663 (Ch), in the same litigation.