Privilege Archives - EURO LIT INSIGHTS

Shareholder Rule Gets Short Shrift

by Kimberley Smith and Jannika Glendon | Jan 7, 2025 | United Kingdom

Derived from 19th century case law, the general school of thought has been that a company cannot assert privilege against its own shareholder, save in relation to documents that came into existence for the purpose of hostile litigation against that shareholder (the so-called “Shareholder Rule”).

In a judgment dated 27 November 2024, Mr Justice Picken (sitting in the English High Court) delivered a landmark ruling decisively rejecting the ‘Shareholder Rule’ on all bases (the Judgment). The Judgment represents a long awaited, significant, departure from what was considered to be a long-standing legal principle and seeks to align the concept of privilege under English law with contemporary corporate realities. The Judgment also clarifies the concept and scope of Joint Interest Privilege as a mater of English law.

Background

The Judgment was given in relation to ongoing group litigation brought by Aabar Holdings S.À.R.L (Aabar) and other shareholders against Glencore PLC (Glencore) involving claims under s. 90 and 90A of the Financial Services and Markets Act 2000 in relation to alleged (but in some cases admitted) misconduct by companies within the Glencore group. Within the context of the proceedings, a dispute arose as to whether Glencore would be entitled to assert

Collateral Waiver: When Voluntary Disclosure Has Unintended Consequences

by Jack Thorne and Jonathan Robb | May 22, 2024 | Court Judgment, United Kingdom

In Alexander Gorbachev v Andrey Grigoryevich Guriev [2024] EWHC 622,[1] the Commercial Court held that the claimant’s voluntary disclosure of a privileged chronology originally produced by its barrister gave rise to a collateral waiver of: (i) an updated draft of that chronology; as well as (ii) all documents containing, recording or otherwise evidencing the claimant’s instructions in respect of the chronology.

Background

The underlying proceedings concern a long-running £1 billion dispute between Mr Gorbachev (the Claimant) and Mr Guriev (the Defendant) concerning their interests in a Russia-based fertiliser company, PJSC PhosAgro.

Back in October 2012, the Claimant instructed a barrister (Mr Fitzgerald), who prepared a chronology of events (the Original Chronology) based on information given to him by the Claimant at meetings and over the telephone. Later, on 21 January 2013, the Claimant instructed solicitors, around which time Mr Fitzgerald provided the solicitors with the Original Chronology, which he then subsequently revised on 5 February 2013 (the Revised Chronology). It appears not to have been disputed in the present application that both the Original Chronology and the Revised Chronology attracted legal professional privilege.

Some almost 10 years later, the Claimant voluntarily disclosed the Original Chronology to the

Redactions and Waiver of Privilege: High Court Provides Guidance

by Harry Denlegh-Maxwell | Oct 9, 2023 | Court Judgment, United Kingdom

The long-running battle between the Serious Fraud Office (SFO) and Eurasian Natural Resources Corporation (ENRC) has hit the headlines again. The most recent Judgment (which can be found here) concerns ENRC’s challenge to certain redactions to a report disclosed by the SFO.

The report in question (the Byrne Report) set out the SFO’s findings following an investigation into allegations that employees of the SFO improperly leaked sensitive information acquired in the course of its investigation into ENRC to journalists and other third parties. The SFO disclosed the Byrne Report to ENRC, but with redactions made to it on the basis of three distinct grounds:

Privilege;
Irrelevance and confidentiality; and
Public interest immunity (PII), as certified by the then director of the SFO.

ENRC made an application to challenge the redactions on each of these grounds, and the High Court considered these in turn.

Privilege

ENRC made two substantive arguments regarding the redactions made on the basis of privilege. ENRC argued that either the High Court should inspect the redacted material to determine whether privilege had been properly claimed, or, alternatively, the SFO should be ordered to provide an additional explanation for the basis on which it asserted