Fortimat Properties S.A. v Pinsent Masons LLP

At an interlocutory privilege hearing, the court may determine the general question whether privileged documents are likely to require consideration at trial, without deciding the status of every document. One important privileged document may suffice.

Legal advice privilege extends to communications forming part of the solicitor-client continuum and directly related to the solicitor’s professional duty as legal adviser. Sharing advice with a non-client within the transaction’s circle of confidence does not, without more, amount to a general waiver. Transactional communications concerning completion, engagement and related work may therefore remain privileged.

Fortimat brought a professional negligence claim against Pinsent Masons arising from legal advice allegedly given in connection with a property development project. The claim included issues concerning the documents required for the transaction and the adequacy of the solicitors’ staffing.

In related proceedings against other parties, Fortimat objected to consolidation or coordinated case management on the basis that common disclosure might expose privileged documents to parties not entitled to them. Butcher J directed a privilege hearing to determine whether privileged documents between Fortimat and Pinsent Masons would need to be considered at trial.

The central issue was whether such documents existed and were likely to feature at trial, notwithstanding their dissemination to persons involved in the proposed transaction.

1. Disposition. The answer to the question posed by Butcher J was yes. Fortimat had established that privileged documents existed, that privilege had been retained, and that the documents were likely to require consideration at trial.
2. The court was not required to determine the privilege status of every document or category of documents. The appropriate question was whether, in practical terms, there would be privileged documents requiring consideration at trial. One important privileged document would be sufficient.
3. Applying the principles stated by Lord Carswell in Three Rivers DC v Bank of England (No. 6) [2004] UKHL 48, and the solicitor-client continuum described in Balabel v Air India [1988] Ch. 317, communications directly related to the performance of the solicitor’s professional duty as legal adviser were privileged. This included communications concerning the engagement, the transaction’s progress and its consummation.
4. The copying of communications to a counterparty involved in the transaction did not, on the evidence, constitute a general waiver. It brought that person into the relevant circle of confidence. There was no basis for concluding that privilege had thereby been waived in favour of other parties.
5. The court declined to decide finally whether communications concerning the transaction’s consummation had entered the public domain. The documents already identified were sufficient to answer Butcher J’s question. The pleaded issue concerning staffing also made it likely that bills, billing records or similar materials containing privileged information would be relevant at trial.
6. The judgment expressed a preliminary view that the related proceedings required some form of consolidation or coordinated handling, but did not determine that case-management issue.