Balkanbank v Taher
| Jurisdiction | England & Wales |
| Judgment Date | 27 January 1994 |
| Date | 27 January 1994 |
| Court | Queen's Bench Division |
Queen's Bench Division
Before Mr Justice Clarke
Practice - service of witness statements - no waiver of privilege in connected documents
The mere service of witness statements under an order of the court did not waive privilege in connected documents. The rationale of the rule governing the waiver of privilege was fairness to the other party and did not require the lifting of privilege until the statement had been deployed in court.
Order 38, rule 2A of the Rules of the Supreme Court concerning the service of witness statements retained the adversarial nature of the proceedings and did not give the court a discretion to order the party concerned to adduce the whole or part of such a statement in evidence if the party did not wish to adduce the evidence contained in it.
Mr Justice Clarke so held in the Queen's Bench Division on an interlocutory application by the plaintiffs, Balkanbank, for a declaration that the defendants, Nasser Taher, Via Holdings Ltd and Taher Meats (Ireland) Ltd, had waived privilege in certain documents connected to witness statements they had served on the plaintiffs.
Mr Robert Bright for the plaintiffs; Mr Steven Gee, QC and Mr Joseph O'Neill for the defendants.
MR JUSTICE CLARKE said the plaintiffs had begun a claim for damages for fraud in Ireland against the defendants and in 1990 had obtained a world-wide Mareva (asset-freezing) injunction against them. The Irish court had dismissed the plaintiff's claim in February 1992 and on May 13, 1992 Mr Justice Evans had discharged the injunction and ordered an enquiry into damages.
Mr Justice Saville had subsequently given directions for an exchange of witness statements and pursuant to his order the defendants had served a large number of witness statements on the plaintiffs. The plaintiffs claimed that the effect of service of those statements was to waive privilege not only in the statements but also in certain otherwise privileged documents connected with the statements. The defendants said there was no waiver unless and until the documents were deployed in court.
The authorities showed that mere disclosure of a privileged document did not have the effect of waiving privilege for connected documents and in his Lordship's judgment the statement to the contrary in Phipson on Evidence (14th edition (1990) paragraph 20-37) was wrong.
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... ... position was said to apply to the statement itself and to any connected documents and in support that proposition reliance was placed on Balkanbank v Taher [1995] 2 All ER 904. Bracewell J considered that decision and did not find a basis on which it supported the proposition. I find that the ... ...
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...Beatty Construction Ltd. [1993] A.C.334 per Lord Mustill at 360–6) even though the line of demarcation may not always be clear ( Balkanbank v. Taher (No.2) [1995] 1 W.L.R.1067). It is also recognised that there may be a "free-standing item of ancillary relief" (per Lord Mustill at 365G). ......
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... ... Ltd v Hibben [1992] 3 All ER 257 [1992] 1 WLR 840 , Cheltenham and Gloucester Building Society v Ricketts [1993] 4 All ER 276 and Balkanbank v Taher (No 2) [1995] 2 All ER 904. All these cases are directly on point as the injunctions in these cases were Mareva orders. However, counsel ... ...