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Commercial Court Orders Disclosure in Wake of Fraud Summary Judgment

In the case of Lowry Trading Limited and anor v Musicalize and ors [2024] EWHC 773 (Comm),[1] the Commercial Court demonstrated its willingness to use the various tools at its disposal to compel disclosure and/or the provision of information, particularly where there is a subtext of fraud.

Background

The Claimants operate investment businesses. They claim that Mr and Mrs Anderson (the Second and Third Defendants), acting through various limited companies (the other Defendants), made various false representations as purported concert promoters in order to obtain investment from them. In pursuing recovery of their investments, the Claimants allege claims in: deceit; unlawful means conspiracy; breach of contract; inducement of breach of contract; and breach of trust, as well as claims pursuant to certain guarantees.

On 21 October 2021, the Court granted freezing injunctions against the First, Fourth and Fifth Defendants preventing them from dealing with or disposing of assets outside of the ordinary and proper course of business (the Injunctions). The Injunctions further required the Defendants to notify the Claimants before dealing with or disposing of assets purportedly inside the ordinary and proper course of business, which notice requirements form the basis of the Claim ants’ present application.

Collateral Waiver: When Voluntary Disclosure Has Unintended Consequences

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

Commercial Court Orders Disclosure in Wake of Fraud Summary Judgment

Collateral Waiver: When Voluntary Disclosure Has Unintended Consequences

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