Segal J
IN THE GRAND COTJRT OF THE CAYMAN ISLANDS FINANCIAL SERVICES DIVISION CAUSE NO: FSD 205 0F 2017 (NSJ) IN THE MATTER OF THE ESTATE OF ISRAEL IGO PERRY DECEASED BETWEEN (1) LEA LILLY PERRY (2) TAMAR PERRY Plaintiffs/Counterclaim Defendants and (1) LOP AG TRUST REG. (2) PRIVATE EQUITY SERVICES (CURACAO) N.V. (3) FmUCIANA VERWAL T{JNGSANSTALT (4) GAL GREENSPOON (5) YAEL PERRY (6) DAN GREENSPOON (7) RON GREENSPOON (8) MIA GREENSPOON Defendants/Counterclaim Plaintiffs (in the case of the First Defendant) RULIING ON PARAGRAPH 2.1 0F THE JANUARY SUMMONS - THE ASSERSONS PRIVILEGE ISSUES This is a note of my ruling on the application made by the First Defendant in paragraph 2.1 of its summons dated 3 Januaiy 2019 (tlie Jatiuaiy Summons:) for specific discovery from tlie Plaintiffs of: ",412 documents containing advice given by Asserson Law to Mr Perry and/or Mrs Perry regardingMrs Perry's statement of assets in the proceedings in the High Court ofEngland and Wales ClaimNo 11592 of2009." 190311 In the matter of Lea Lilly Peri'y et.al v. Lpag Trust Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons Privilege Issues. l Asserson Law are referred to as Asserson; the documents covered by paragraph 2.1 of the January Summons are referred to as the Asserson Documents and the proceedings identified in that paragraph are referred to as the SOCA Proceedings The First Defendant's attorneys (Campbells) requested that the Plaintiffs disclose the Asserson Documents in their letter to the Plaintiffs' attorneys (Walkers) dated 21 December
Campbells noted that tlie Plaintiffs had already given discovery of documents which contained advice from Asserson with regard to Mr Perry's and/or the First Plaintiffs statement of assets for the prirpose of the SOCA Proceedings and that this amorinted to a waiver of privilege in relation to all advice on this issue. Campbells therefore requested disclosure of all advice given to the First Plaintiff concerning her statement of assets. 0113 Jamiary 2019 the First Defendant issued and served the Sixtli Affidavit ofMs Paitos in support of tlie Jamiaiy Summons. Ms Partos explained tliat in the SOCA proceedings Mr Periy and the First Plaintiff had been obliged to set out details of tlie asSets tliey owned including assets that may have been part of Mi" Perry's tnist structures and asserted tliat tlie documents containing such evidence were relevant to the Plaintiffs' claims in these proceedings. Ms Partos also asserted tliat since some of the Asserson Documents had been listed on discovery and provided for inspection by the Plaintiffs, tlie Plaintiffs liad waived privilege in relation to tlie documents discovered. In tlieir letter dated 15 Jamiaiy 2019 Walkers rejected tlie argument that tliere had been a waiver of privilege. Tlie First Defendant's application was to be renewed and heard at a hearing listed on 22 January
In tlieir skeleton argument for and at that hearing Mr Brownbill QC for the Plaintiffs reiterated tlie Plaintiffs' position that there had been no waiver of privilege. The Plaintiffs had not intended to waive sucli privilege and tlie documents from Asserson provided on discoveiy liad been inadvertently provided. Mr McPlierson QC for the First Defendant reiterated the First Defendant's submission tliat tliere liad been a waiver of privilege but also argued that Asserson had been jointly instructed and retained by all tlie defendants in tlie SOCA Proceedings, including Mr Periy, the First Plaintiff and the First Defendant and accordingly there had been a joint retainer sucli that privilege corild not be asserted by one joint client against tlie other. 190311 In the matter of Lea Lilly Periy et.al v. Lpag Tnist Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons 2 Privil ( ,j Since no evidence had been filed regarding the terms and basis on which Asserson had been retained or as to the circumstances in which the Plaintiffs' legal advisers had come to inchide documents containing advice from Asserson in the Plaintiff's list of documents for the purpose of discovery I ordered the filing of further evidence on these matters and of written submissions dealing with the issues of whether (a) Asserson had been jointly retained so that no privilege could be asseited by the Plaintiffs against the First Defendant with respect to the Asserson Documents (the Asserson Retainer Issue) and (b) assuming that tliere liad not been a joint retainer, whether the Plaintiffs had waived privilege in the Asserson Documents SLICII that they could not refiise to discover and produce copies of them in accordance with paragraph 2.1 of the Januaiy Summons (t}qe Waiver of Privilege Issue). Following and in accordance witli tlie orders I made at the 22 Jamiaiy hearing: (a). tlie First Defendant has listed the Asserson Documents of wliich tlie Plaintiffs have already given discovery and inspection (tliere are 104 sucli documents 68 of wliicli are communications whicli took place on or after tlie date on which Asserson was retained by tlie First Defendant, namely 17 March 2010). (b). Ms Partos filed and served her Eiglitli Affidavit (Partos 8) on belialf of the First Defendant in wliidt slie dealt with the scope and nature of the retainer of Asserson and tlie circumstances whicli in her view gave rise to tlie waiver of privilege by the Plaintiffs. (i). As regards tlie basis on wliicli Asserson had been retained she exhibited varioris documents wliich she considered established tliat tl'ie First Defendant, Mr Periy and tlie First Plaintiff had instrricted Asserson under a common retainer for tlie purpose of defending the SOCA proceedings. On tliat basis the First Defendant was entitled to see eitlier all fiirtlier advice wliich the First Plaintiff had received with regard to the preparation of her statements of assets or such advice given a'fter 17 March 2010 wlien the First Defendant became a joint client of Asserson (on the basis that the First Defendant was tlie joint owner of documents produced including advice given by Asserson in furtlierance of the joint defence). 190311 In the matter of Lea Lilly Perry et.al v. Lpag Tnist Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons 3 g :J (ii). As regards waiver of privilege, Ms Partos provided details of the documents containing advice from Asserson which the Plaintiffs had provided on discovery and which the First Defendant had inspected. She also explained the understanding of the Cayman advocates, English solicitors and English counsel who had reviewed these documents on behalf of tl'ie First Defendant. She states that: "4t no time during [the process of reviewing the doc'gmventsl was any belief of concern expressed that documents [containing advice fiom Assersonl might have been discovered by the Plaintiffs by mistake,' while the FirstDefendant certairily had concerns about [the inadequacyl..of the Plaintiffs'discovery it had no reason to believe that any mistakes of the type now alleged had been made on the Plaintijf's behalf in conducting the discovery process. Had that been considered a possibility Campbel7s would have expected Walkers to raise the issue as discovered doc'zmients were used in the preparatiori of witness statements and expert reports. As it is, it was only on 15 January 2019 that Walkers suggested for the first time that there had been any mistake or oversight in connection with the Plaintiff's discovery." (c). Ms Stewait filed and served her Tliird Affidavit (CS3) and tlie Second Plaintiff filed her Forirteenth Affidavit 011 behalf of the Plaintiffs. Ms Stewait in CS3 also dealt witli the scope and nature of tlie retainer of Asserson and tlie waiver of privilege issue: (i). She explained tliat she had made inquiries regarding tlie basis on wliicli Asserson liad been instructed and was of the view that there had never been a joint retainer. Slie refertaed to and exhibited copies of correspondence between her firi'n and Asserson, in particular her firi'n's letter dated 22 January 2019 and Asserson's response dated 29 January
In the letter of 22 January Ms Stewart's firm had stated that: 4!- 1903 it. "We consider that you were correct to refitse [the First Defendant'sl request [for a copy of the entire dient file held by Assersonl because not all of the advice which you provided to our clients and to [Mr Perryl was matter of Lea Lilly Peny et.al v. Lpag Trust Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons Privilege Issties. 4 provided for [the First Defendant'sl benefit and in so far as advice was provided solely for the benefit of our clients and not for [the First Defendant'sl benefit that advice does not belong to [the First Defendant7 and indeed is subject to legal advice privilege so that [the FirstDefendantl is not entitled to obtain those docttments without our clients' permission. We wordd be gratefid if you could confirm that this reflects your rmderstandmg of the position and if you have any formal records (such as letters of retainer) to confirm this then please cordd you provide such records to Z/S as soon as possible. .. [the First Defendant hasl asserted that advice given to.. [Mr Perry and the First Plaintijfl in respect of the preparation of [the First Plaintiff'sl statement of assets in [the SOCA Proceedingsl was produced pursuant to ..a joint retainer so that there is no privilege in relation to such advice as against [the First Defendantl. We consider that [the First Defendant'sl position is incorrect and we would be gratefid if you would confirm that you agree with our position... By way of example of SZ/C/7 advice we enclose an email from Trevor Asserson dated 6 March 2010 [which does not appear in my copy of the exhibit to CS3] which includes advice in relation to the preparation of [the First Plaintijff'sl statements. Please confirm that you agree with Z/S that SZ/C/7 docrmyents were not providedfor [the FirstDefendant'sl benefit and that ))OZ/ agree with Z/S that [the First Defendantl is not entitled to such docvmzents both because they do not belong to the [First Defendantl and because our clients are entitled to the benefit of legal advice privilege in respect of such docvmzents as against [the First Defendantl." Asserson provided a brief response in their letter dated 29 January. They simply said that they agreed"with the analysis set out in [the letter of22 Januaryl." They also provided copies of two letters of retainer one addressed to the First Plaintiff the matter of Lea Lilly Peri'y et.al 'v. Lpag Tnist Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons Priyilege Issues. and the other addressed to the Second Plaintiff and Fifth Defendant. Ms Stewart noted that neither referred to there being a joint retainer on behalf of all the defendants to the SOCA Proceedings. (ii). Ms Stewart also explained that the documents containing advice from Asserson wliicli liad been included in tlie Plaintiffs' list of documents and provided for inspection had been included inadvertently and that there had been no intention by tlie Plaintiffs to waive privilege. Slie also explained tlie circumstances in which the mistake had been made. The process of reviewing documents liad been carried out by a team of lawyers and paralegals of vaiying degrees of seniority and involved reviewing tliorisands of documents under veiy significant time pressure by reason of tlie tiglit timetable imposed by tlie Corirt. It had been impossible in the time available for every document to be reviewed by Ms Stewait or a senior lawyer in her team. Slie liad instructed her team to sliow her documents aborit wliich there was a difficulty so that she corild form a view on whether tlie document was to be discovered. However none of the documents containing advice from Asserson l'iad been sliown to her and she therefore assumed that a junior lawyer had included the documents witliout appreciating tliat they were privileged. Tlie error had not been picked up because of the scale ofthe exercise and time pressures. Furtherinore, slie explained tliat in lier view tlie fact that a mistake must have been made ought to have been obvious to the First Defendant's legal team. Slie fuitlier says tliat since Campbells liad written to Walkers on 21 December 2018 stating tliat tlie documents liad before the alleged waiver been privileged they had accepted and conceded tliat tlie First Defendant was not entitled to them by virtue of a joint retaixier. (d). Mr McPlierson QC and Campbells on behalf of the First Defendant and Mr Brownbill QC and Walkers on belialf of tlie Plaintiffs filed their written submissions. All parties confiri'ned tliat tliey agreed to me dealing with the application on the papers and without tlie need for a further hearing. In the matter of Lea Lilly Perry et.al v. Lpag Trust Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons Privilege Issries. 6 9. The First Defendant's submissions on the Asserson Retainer Issue can briefly be summarised as follows: (a) The evidence relating to the basis and terms on which Asserson was instructed by Mr Perry (from the outset), the First Plaintiff (from 24 June 2008), tlie Second Plaintiff and Fifth Defendant (from about 25 June 2008) and the First Defendant (from 17 March 2010) establishes that tliere was a joint retainer (as regards the First Defendant from 17 March 2010). Accordingly no party to the joint retainer was entitled to assert privilege against another with respect to documents produced in connection with the joint retainer. (b). Various items of contemporaneoris correspondence and documents showed tliat Asserson's working practices and the manner in wliich Asserson carried out its instructions were consistent witli a )oint retainer and not a separate retainer. This correspondence and documentation included: (i). An email from Mr Asserson to Mr Greenspoon, the Fi'ftli Defendant and Hadie Colien dated 22 November 2009 suggesting tliat in tlie early stages of their engagement and before the First Defendant became a client Asserson had it in mind tliat it would represent the defendants to the SOCA Proceedings jointly rather tlian separately (and that if there was to be a separate instruction the defendants wishing to instruct solicitors sliould instruct a separate firm). The email related to rirgent steps to be taken in relation to eacl'i defendant to the SOCA Proceedings and stated that in Mr Asserson's view it"would be most advantageous were [Assersonl to represent each [defendantl. If however 80717(E' of the [defendantsl prefer separate representation then the best scenario would be to ensure that they are represented by a single lctw firm and preferably one which is prepared to authorise all non- controversial acts of [Assersonl on their behalf. This would ensure a vmited and costs friendly front albeit that art independent solicitor ensures that there is ?;!O conflict between the needs of our clients and the other [defendantsl." (ii). Written instructions to cormsel in April 2010 who were instructed on behalf of a ffl \t= number and probably all of the defendants to tlie SOCA Proceedings, including the the matter of Lea Lilly Perry et.al v. Lpag Tnist Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons Privilege Issries. First Defendant. These instructions discussed in a single document the separate position of and issues affecting the different defendants. It appears that these instructions and information concerning (and probably the advice given by cormsel on) these issues were shared among and made available to each of the defendants. (iii). AwitnessstatementofMrAssersonfiledintheSOCAProceedings(ffr.4sserson's Wittxess Statement) in whicli he averred that it was a feature of the"litigation that there were a nrmzber of individual parties being sued who had almost identica7 interests... Each of the Defendants was content to instruct [Assersonl to accept dcty to day instructions froin Mr Periy in relation to all aspects of the case and each expressed to me that they recognised that they had a common interest in the result.' He went on to confirin tliat Mr Perry and tlie First Defendant had agreed to be jointly liable for tlie"payment of all the conwon costs" incurred by Asserson. Therefore tlie First Defendant was liable witl'i Mr Perry for (and paid) the costs incurred by all defendants in obtaining advice from Asserson. (c). Asserson had made clear in their letter dated 29 0ctober 2018 to Byrne & Partners (the First Defendant's London solicitors) that they had generally acted under a joint retainer and lield files whicli"mostlycontain documents which belongedjointlyto a grorq:i ofclients [who were now in dispute with one anotherl." The letter makes it clear that Asserson accept that they were generally acting pursuant to a "common retainer" but that tliey needed to take great care to identify and not disclose documents wliich were prepared during a period wlien a particular defendant was not a joint client or in relation to a matter outside tlie common retainer. Asserson listed five SLICII matters which"arose during the course of the litigation which eventually became the subject of separate representation for various clients." None of the items listed appear to relate (nor were identified by Asserson as relating) to the preparation of tlie First Plaintiffs statement of assets. (d). The statement made by Asserson in their letter to Ms Stewart's firin (Bridge Law Solicitors Limited) dated 28 Jamiary 2019 should not be taken as being inconsistent witli or unden'nining the significance of the account given in their letter dated 29 0ctober 2018 to Byrne & Partners. As the quotation set out above makes clear, the letter from Ms 190311 In tlie matter of Lea Lilly Peri'y et.al v. Lpag Trust Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons 8 firm had focussed on advice produced"solely for the benefir of the First and Second Plaintiffs ("Fe consider that you were correct to refuse [the First Defendant'sl request [for a copy of the entire client file held by Assersonl because not all of the advice which ),'0Z/ provided to our clients and to [Mr Perryl was provided for [the First Defendant'sl benefit and in so far as advice was provided solely for the benefit of our clients and not for [the First Defendant'sl benefit that advice does not belong to [the First Defendantl and indeed is subject to legal advice privilege so that [the First Defendantl is not entitled to obtain those doc'tmzerits without our clients' permission.") The Plaintiffs' submissions on tlie Asserson Retainer Issue can briefly be summarised as follows: (a). Asserson's response in their letter to Ms Stewait's firm dated 28 January 2019 is inconsistent witli Asserson believing tl'iat it acted under a joint retainer and Asserson liad repeatedly rejected tlie First Defendant's reqriests to see a copy of their entire client file because tliey considered that tlie First Defendant was not entitled to receive all the documents in it. Asserson were in the best position to know the basis on whicli they l'iad been instructed and their views shorild be given considerable weight. (b). Asserson liad consistently taken the view tliat tliere were separate and not joint retainers, wliicli was suppoited by an email from Mr Asserson to tlie Second Plaintiff in August 2016 in wliicli lie liad responded to a reqriest from lier to receive copies of all correspondence tliat lie had or would liave witli otlier "clients" for wliom Asserson was acting in relation to tlie SOCA Proceedings. Mr Asserson had responded as follows: "Corresponderice with this firm and its clients is confidential to those clients unless it is also copied to others when sent, When, as I vmderstand is the case here relationships between my respective clients are not entirely amicable the need to preserve confidence is greater than might normally be the case between a grovtp of clients on the same case." (c). None of the Asserson engagement letters state or indicate tliat there was a joint instruction and should be taken as evidencing separate instructions. 190311 In tlie matter of Lea Lilly Peiry et.al v. Lpag Tnist Reg. -FSD 205 of 2017 (NSJ) Rriling on Assersons 9 (d). The First Defendant has only recently claimed that there was a joint instruction and must have until recently believed that there was no such retainer. The First Defendant's submissions on the Waiver of Privilege Issue can briefly be summarised as follows: (a). Discoveiy of documents falling within the category of Asserson Documents has been given by tlie Plaintiffs and inspection has been provided. (b). GivingdiscoveryandinspectionofadocumentwaivesprivilegeinitsubjecttotlieCorirt's jurisdiction to relieve a party from the conseqriences of an inadvertent mistake (in reliance onAl Fayed v Cominissioner ofPolice [2002] EWCA Civ 780 at [16(iv)]). (c). Once privilege is waived in a document tlie waiver extends to all documents relating to the same transaction (in reliance on Thanki at [5-129]). (d). Tlie Court has an eqriitable jurisdiction to prevent the rise of documents made available for inspection by mistake wliere justice requires and tlie principles applicable to the exercise of this jurisdiction are summarised in Atlantisrealm
EWCA 1029 at [31-37] (referring to dicta in Ai Fayed (above) and Rcrwlinson and H't.mter Trustees SA v Director ofthe SFO (No 2) [2014] EWCA Civ 1129): (i). In tl'ie absence of fraud all will depend on tlie circumstances. (ii). The Court tnay grant an injunction if the documents liave been made available as a result of an obvious mistake. (iii). A mistake is likely to be lield to be obvious and an injunction granted wliere the documents are received by a solicitor and (I) tlie solicitor appreciated that amistake had been made before making use of tlie documents or (II) it would be obvioris to a reasonable solicitor in his position that a mistake has been made and a 190311 In the matter of Lea Lilly Perry et.al v. Lpag Trrist Reg. -FSD 205 of 2017 (NSJ) Rtiling on Assersons 10 case there are no other circumstances which would make it rinjust or ineqriitable to grant relief. (iv). Where a solicitor gives detailed consideration to the question of whether the documents have been made available for inspection by mistake and honestly concludes that they liave not that fact will be a relevant and in many cases an important pointer to the conclusion that it worild not be obvioris to the reasonable solicitor that a mistake had been made but is not conclusive. Since the Court is exercising an equitable jurisdiction there are no rigid rules. (e). There was insufficient evidence of a quali'tying mistake in tlie present case. In order to decide whetlier the documents liave been discovered by mistake the Court rmist review how the disclosure process lias been conducted and the explanation provided as to liow tlie documents came to be discovered. Tlie present case was veiy different from tlie facts in Atlantisrealm. Here tliere was no evidence from wliich tlie Court corild conclude that tlie Plaintiffs intended tlie discovery process to prevent tlie Asserson Documents from being discovered or being made available for inspection and Ms Stewait's account in CS3 as to how tlie Asserson Documents came to be included in the list of documents was no more than speculation. It was unlikely tliat an individual would inadvertently list more tlian one l'uindred different documents wliich he/slie ought to liave realised were privileged or tliat multiple individuals would make the same mistake. (f). Even if tliere was sucli a mistake it was not obvious. None of tlie First Defendant's legal team involved in tlie document review process raised any concerns that tlie Asserson Documents had been wrongly produced. Nor was there anything in the nahire of tliese documents to identify tliem as sensitive and therefore alert tliose reviewing tliem that disclosure was rinexpected or rinusual. Fuitheri'nore it took Walkers twenty five days to assert tliat tliere liad been a mistake. Tlie fact tliat the disclosing party's solicitor had immediately asserted privilege had been a significant factor in Atlantisrealm. (g). 190311 In tlie matter of Lea Lilly Periy et.al v. Lpag Trust Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons statements and expert reports had been exchanged and it would be unfair for only some and not all of the Asserson Documents to be provided.
The Plaintiffs' submissions on tlie Waiver of Privilege Issue can briefly be summarised as follows: (a). The evidence of Ms Stewart clearly established that there had been a mistake in tliis case and tliat it was rinderstandable why tlie mistake was made. (b). Tlie First Defendant's legal team shorild have realised that tlie Asserson Documents had been included in the Plaintiffs' discovery inadvertently and Campbells' letter of 21 December demonstrated tliat tliey appreciated tliatthe Asserson Documents contained legal advice whicli was prima facie privileged and they and the First Defendant shorild have drawn tlie material to tlie attention of the Plaintiffs in order tlie asceitain the true position. They failed to take tlie responsible course and sliould now be required to destroy all copies of the Asserson Documents and not be permitted to refer to SLICII material at trial.
My conclusions are as follows: (a). dealing first witli tlie Asserson Retainer Issue: (i). I seems to me, based on the evidence filed in this application, that Asserson were instructed under a joint retainer whicli included advice 011 the statements of assets to be prepared by various defendants in the SOCA Proceedings. (ii). Tlie defendants regarded tliemselves as liaving a common interest so tliat there was no need to keep information and tlie statements confidential as, and not to distribute it freely, between tliem. This conclusion is confiri'ned by Mr Asserson's Witness Statement. This meant tliat there was no perceived need to keep information and documents separate and confidential to eacli defendant. Each defendant delegated decision making with regard to the preparation of tlie statements to one person, A/Ir Periy. All infori'nation and documents worild need to I 'e'i be shared with and seen by him and he would be acting for and need to make the matter of Lea Lilly Perry et.al v. Lpag Trust Reg. -FSD 205 of 2017 (NSJ) Rriling on Assersons Privilege Issries. decisions for each of the defendants involved. There was no suggestion that the pooling of information and documents for the purpose of allowing day to day decision making by A/Ir Perry did not permit the defendants for whom Mr Periy was acting to see the documents given to him. (iii). The sliaring of such information and statements was needed for the effective management of tlie process of preparing and obtaining advice on the statements. This was because a number of tlie defendants held title to assets and coordination in tlie preparation of tlie statements was, as a practical matter, needed and, in practice, rmdertaken. (iv). Information relating to the preparation of the First Plaintiffs statement of assets was in fact sliared with counsel acting for all the defendants without any suggestion that it could not be shared with all clients or was to be dealt witli separately. Tlie instructions dated 9 April 2010 deal witli seven issues one of wliich is tlie statement of assets to be prepared by the First Plaintiff. There is no suggestion that tliis issue or aspect is to be kept separate from the other defendants and clients. The instructions dated 22 June 2010 also discuss sensitive information conceniing tlie manner in whicli Mr Periy's statement of assets had been prepared. (v). Asserson appear to accept that tliey were generally acting under a joint retainer altliough tliey made it clear that all instructions were not provided rinder the joint retainer and therefore they were rinable to deliver up to Campbells tlie full file wliich they hold in relation to the SOCA Proceedings. Tliis is explained in in their long, detailed and carefully constructed letter to Byrne & Partners dated 29 October
Tliey identified two particular circumstances in wliich a (joint) client would not be entitled to receive copies of document lield by Asserson - first, documents generated in tlie period before tlie (joint) client instructed Asserson or after tliey ceased to be a client; and second, documents relating to certain separate engagements which they list and describe briefly. None of tliese separate engagements appear to include the preparation of tlie statements of assets nor does the matter of Lea Lilly Periy et.al v. Lpag Trust Reg. -FSD 205 of 2017 (NSJ) Rriling on Assersons Privilege Issues. Assertion say that the advice on the preparation of the statements was the subject of a separate engagement. (vi). Asserson'slettertoBridgeLawdated28January2019doesappeartosupportthe Plaintiffs' submissions. Bridge Law did clearly state in their letter dated 22 January to Asserson, as appears from the quotation set out above, that they disagreed with the First Defendant's claim that the advice given to Mr Perry and the First Plaintiff in respect of the preparation of the statements of assets was produced prirsuant to a joint retainer so tliat no privilege corild be asserted against the First Defendant. And Asserson said tliat tliey agreed with Bridge Law's analysis as set out in tlie 22 Januaiy letter. Bridge Law's letter did contain two requests for confirination from Asserson, tlie first being a request for a confirmation tliat the First Defendant was not entitled to see Asserson's entire file. But it appears tl'iat Asserson was responding to, and did not differentiate between, the two reqriests. But I do not regard Asserson's brief response 011 22 Januaiy 2019 as being intended to qualify or undermine tlie detailed treatment of their position set out a few montlis previorisly in tlie letter dated 29 0ctober
Tliat earlier letter was, it is true, designed to explain that Asserson (understandably) did not wish to expose tliemselves to a claim by any of tlieir foriner clients by taking their own view and providing documents to one former client witliorit the consent of all clients or an order of tlie court (tlie English couit or at least a couit of competent jurisdiction who made an order on notice to all tlie defendants and wliicli was binding on them and Asserson). So it was adopting a neutral view as between the parties. But it did explain Asserson's position in some detail and seems to me to be consistent witli the analysis I have adopted. (vii). The extract from the email from Mr Asserson to tlie Second Plaintiff in August 2006 relied on by the Plaintiffs (quoted in Mr Brownbill's skeleton and set out above) was not representative of Mr Asserson's position in tliat email. He went on to say, immediately after this extract [my underlining]: t tlie matter of Lea Lilly Peri'y et.al v. Lpag Trust Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons Privilege Issues. "If they permit me to send it to you I will have no objection to sending the correspondence to you. Iwill ask them. But this requires someone to work out what emails were sent to which people and when and then to show them to those people to get permission to copy the correspondence to you. That is time consvmzing. I am confident that all material advice and information wo'ydd have been copied to the general grottp and there.fore the exercise you request me to undertake is vmlikely to be of any material consequence in the end. Hence n4v reluctance to give it prioritv when I have a number of other verv pressing things on my desk. I note that you write the word "dients" in inverted coinmas. Is it intended thatI shovdd'tmderstand anything by that. If so, I would be grateful if you covdd explain what." So Mr Asserson was of tlie view that all material advice had been and was being sliared and therefore was available to and not confidential as between the general groztp, that is all tlie defendants. He was also questioning the Second Plaintiff's use of inverted commas and tlie suggestion that a special designation or treatment was needed for tlie general client group for wl'iom his filTll acted. (viii). It is correct that separate engagement letters were signed witli Asserson by tlie Second Plaintiff (and tlie Fifth Defendant) and tlie First Defendant and that the engagement letters made no mention of there being a joint instruction (or of Asserson being peri'nitted to disclose information and documents with otlier joint clients). But tlie engagement letters were clearly standard form documents wliich did not address the issue of wlietlier the engagement was joint or separate (albeit that they sliould liave done) and therefore in my view did not preclude a joint engagement being agreed. the matter of Lea Lilly Perry et.al v. Lpag Trust Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons Privilege Issues. (ix). Bridge Law in their letter to Asserson dated 22 January 2019 had referred to and relied on a benefit analysis. The argument was that even though Asserson was acting for a number of clients in relation to the same matter advice was produced for particular clients according to whether the subject matter of the particular advice was for their benefit. Advice for the benefit of one client was to be kept separate from the other clients. I can see that this is a possible approach but for the reasons I have given it is not applicable in the present case or the correct construction of the arrangements between Asserson and the defendants to the SOCA Proceedings. (b). Dealing secondly with the Waiver of Privilege Issue: (i). In view of my decision on tlie Asserson Retainer Issue there is no need for me to deal witli tlie Waiver of Privilege Issue but I sl'iall, nonetheless, briefly explain my conclusions on it as it was argued. In my view, on balance, tlie Plaintiffs are not entitled to an injunction proliibiting tlie use by the First Defendant of the documents discovered. (ii). There was no disprite as to tlie applicable law and approacli to be adopted by tlie Court. Tlie correct approacli was set out in Atlantisrealm. Tlie Court has a discretion and may permit or proliibit the receiving party to make rise of tlie documents discovered. Since the Court is exercising an eqriitable jurisdiction there are no rigid rules. (iii). Accordingly there are three main questions: (A). Did Bridge Law and tliose responsible forthe Plaintiffs' discoveiy process make a mistake (were the documents wliich contained advice from Asserson included in tlie list by mistake)? (B). If so, was this an obvious mistake either subjectively (did tlie First Defendant's legal team appreciate that a mistake had been made before I In the matter of Lea Lilly Peri'y et.al v. Lpag Trust Reg. -FSD 205 of 2017 (NSJ) Rriling on Assersons Privilege Issries. 16 making use of the documents) or objectively (would it be obvious to a reasonable solicitor in the position of the First Defendant's legal team that a mistake has been made)? (C). If so, are there are other circumstances which worild make it rmjust or inequitable to grant relief to the Plaintiffs? (iv). InmyviewMsStewart'sevidence(inCS3)makesitcleartliattherewasamistake in tl'ie present case. (v). Ms Partos' evidence (in Paitos 8) makes it clear tliat the First Defendant's legal team did not subjectively appreciate or conclude that a mistake had been made. (vi). Worild it liave been obvious to a reasonable solicitor in the circumstances that a mistake had been made? I note the comments made Moore-Bick LJ in Rawlinson & Hunter (above) tliat: ...once it is accepted that the person who inspected the doc'gmzents did not realise that it had been disclosed by mistake, despite being a qualified lawyer, itisastrongthingforajudgetoholdthatthemistakewasobvious. Those reviewing the documents were engaged on an enorinous task in the course of which they had been required to consider many thousands of documents some of which were, or at ariy rate may arguably have been, privileged... the essence of [the judge'sl thin7cing seems to have been that it was obvious that the document had been disclosed by mistake because it was obvious that it was privileged. That seems to me to confitse two things: whether the docvmvent was privileged and whether ewn if privileged it had obviously been disclosed by mistake. It is only if the court is satisfied of the latter that it will consider whether to prevent the use of the document in litigation. No doubt in some cases the sensitive nature of the document will be enough to make it obvious that it has been disclosed 1 In by mistake but often that will not be the case... tlie matter of Lea Lilly Peri'y et.al v. Lpag Trust Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons Privilege Issues. So (as Clarke LJ noted in Al-Fayed) the fact that a solicitor has given detailed consideration to the qriestion of whether the documents have been made available by mistake and has honestly concluded that they were not is a relevant and in many cases an important pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake liad been made. But is not conclusive. Fuithermore the mere fact tliat it is obvioris that the documents are privileged is insufficient. I also note tlie important comments made by Jackson LJ at the end of his judgment inAtlantisrealm (at [55]) regarding tlie duties ofthe lawyers on botli sides involved in the discoveiy process. (vii). Tliis is not a case like At7antisrealm wliere a single email that was immediately recognised as being of significance and capable of being helpful in negotiations between the parties was inadvertently disclosed. This case involved tlie discovery of over one hundred documents. Tliis can weigh on both sides of tlie argument. It can be said (as the First Defendant submits) tliat the vohnne of documents discovered worild cause a reasonable solicitor to conclude tliat tlie disclosing paity must liave deliberately decided to include sucli a large volume of material becarise a mistake on sucli a large scale is inlierently rmlikely. The counter-argument is that tlie disclosure of sucl'i a large voliune of privileged documents is sufficiently unusual strongly to suggest tliat (at least to put a reasonable solicitor on inquiry as to whether) a mistake has been made and that in tliis case tlie First Defendant's legal team clearly appreciated that tlie discovery of documents containing advice from Asserson had potentially serious implications for the Plaintiffs and that discovery had not been complete becarise they soriglit to rely on tliat discovery as a basis for obtaining furtlier documents on the grorinds that there had been a waiver of all related documents. On balance it seems to me that in tliis case it cannot be said that the mistake was obvious. I take into account the important but not conclusive pointer that tlie uncontested evidence of Ms Partos is that it did not occur to the First Defendant's experienced legal team tliat included Cayman matter of Lea Lilly Periy et.al v. Lpag Trust Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons Privilege Issries. advocates, Englisli solicitors and English counsel that there might have been a mistake. There is no suggestion that they were not conducting a thorough and careful review. The Plaintiffs, in their brief submissions, have not claimed that the documents were sufficiently sensitive or umisual to alert the First Defendant's legal team to the risk and likelihood of a mistake.
Accordingly,fortliereasonsIhavegiven,theapplicationmadebytlieFirstDefendantinparagraph 2.1 of the January Summons is granted. Justice Segal Justice of the Grand Court, Cayman Islands 11 March 2019 190311 In the matter of Lea Lilly Peri'y et.al v. Lpag Tnist Reg. -FSD 205 of 2017 (NSJ) Ruling on Assersons Privilege Isst+es. 19