Boris Abramovich Berezovsky v Roman Arkadievich Abramovich
| Jurisdiction | England & Wales |
| Judge | The Hon Mrs Justice Gloster |
| Judgment Date | 06 May 2011 |
| Neutral Citation | [2011] EWHC 1143 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2007 Folio 942 |
| Date | 06 May 2011 |
[2011] EWHC 1143 (Comm)
The Hon Mrs Justice Gloster, DBE
Case No: 2007 Folio 942
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Gillis Esq, QC, Roger Masefield Esq & Miss Nehali Shah (instructed by Addleshaw Goddard LLP) for the Claimant
Ms Helen Davies QC, Daniel Jowell Esq, QC &Edward Harrison Esq (instructed by Skadden, Arps, Slate, Meagher & Flom (UK) LLP) for the Defendant
Hearing dates: 28 th, 29 th & 30 March 2011
Introduction
On 7 April 2011, after an interlocutory hearing which took place on 28, 29 and 30 March 2011, I made orders ( inter alia) in respect of two of Mr. Roman Abramovich's applications in the following terms:
" Specific disclosure to be provided by the Claimant
The Patarkatsishvili materials
2. Subject to paragraph 4 below, the Claimant shall give specific disclosure of all documents in his possession or control recording or reflecting the content of interviews or conversations between Mr Patarkatsishvili and the Claimant's former solicitors (including, in particular but without limitation, Mr Andrew Stephenson of Carter Ruck, Mr James Lankshear of Streathers and Mr Ian McKim of Cadwalader Wickersham and Taft) in relation to the subject matter of these proceedings.
3. At the same time as providing disclosure, the Claimant shall provide inspection of such documents by way of uploading the same to the Central Commercial Database.
4. The time for the Claimant to provide the specific disclosure and inspection referred to in paragraphs 2 and 3 above shall be extended to 48 hours after the date on which the Court hands down its reasoned judgment in relation to paragraphs 2 and 3 above. For the avoidance of any doubt, should the Claimant decide to apply for permission to appeal in respect of paragraphs 2 and 3 above, the Claimant shall be at liberty to seek to have the period specified in this paragraph 4 extended, or seek a stay of paragraphs 2 to 4 inclusive of this Order, pending the determination of that application for permission, or if granted, pending the appeal.
5. The time for the Claimant to apply for permission to appeal and lodge any documents or notice or appeal or application for permission to the Court of Appeal shall be extended until 7 days after the Court's judgment on this matter is handed down.
…
Application by the Defendant for permission to re-amend
10. The Defendant is granted permission to Re-Amend his Defence in the form exhibited to the Third Witness Statement of Mr Larizadeh. The Defendant is to pay the Claimant's costs occasioned by the amendments.
11. The Claimant is granted permission to serve consequential amendments to his Re-Amended Particulars of Claim and Amended Reply. Such consequential amendments are to be served by 4.00pm on Friday 6 May 2011."
The time estimate of two days given by counsel for the hearing of the five applications before the Court, which was listed to be heard on 28 and 29 March (and the necessary time for pre-reading), was woefully inadequate. In the event the hearing took three days and gave no time for delivery of a judgment. Accordingly, I told the parties that I would give my ruling on 7 April 2011 but would give my reasons subsequently.
These are the reasons for the orders which I made.
There is no need for me set out the background facts to this matter which are fully rehearsed in the judgment of Sir Anthony Colman 1 and that of the Court of Appeal 2 in relation to the Defendant's reverse summary judgment and strike-out applications ("the summary judgment application").
The Patarkatsishvili materials
The Defendant's submissions
Miss Helen Davies QC, leading counsel on behalf of the Defendant, Mr. Roman Abramovich (whom I shall refer to as "the Defendant"), applied for an order for disclosure of all documents in the possession or control of the Claimant, Mr. Boris Berezovsky (whom I shall refer to as "the Claimant"), recording or reflecting the content of interviews or conversations ("the Patarkatsishvili interviews") relating to the subject matter of these proceedings between the Claimant's former business associate Mr. Patarkatsishvili (who died on 12 February 2008) and the Claimant's former solicitors, including, in particular but without limitation, the solicitors Mr. Andrew Stephenson of Carter Ruck, Mr. James Lankshear of Streathers and Mr. Ian McKim of Cadwalader, Wickersham and Taft ("the Patarkatsishvili materials"). Her submission was that the Defendant was entitled to such disclosure because the Claimant had waived privilege in respect of such communications. It would appear from the fifth witness statement of Mr. Mark Hastings, a partner in Addleshaw Goddard LLP ("AG"), the Claimant's current solicitors, that these materials may include at least a transcript and notes of Mr. Stephenson's interview with Mr. Patarkatsishvili on 30 June 2005, and a draft and possibly a signed, or unsigned, proof of evidence or witness statement from Mr. Patarkatsishvili. There may also be notes of interviews or other communications between Mr. Patarkatsishvili and other solicitors.
Her application was made on two independent grounds, each of which, she submitted, was, on its own, enough to give rise to waiver of privilege on the part of the Claimant:
i) The first ground, upon which the Defendant based his application, was the alleged extensive deployment that had already been made in Court of parts of the contents of the Patarkatsishvili interviews in order to defend the Defendant's summary judgment application in hearings before Sir Anthony Colman and the Court of the Appeal. Miss Davies submitted that the contents of those communications were deployed, in particular, in the witness statements of Mr. Marino, and relied upon by the Claimant in his skeleton arguments. She also submitted that they had been referred to in the oral submissions of both parties.
ii) Accordingly, she submitted that, having so deployed part of the privileged communications in relation to the merits of the Claimant's claim, the Claimant had waived any privilege which he might have had in the Patarkatsishvili materials, and was therefore now obliged, by the application of the principle of collateral waiver, to give disclosure of all documents relating to the same subject matter. She relied upon the decisions of the Court of Appeal in
Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd3 and in the analogous case of Somatra Ltd v Sinclair Roche & Temperley4 as well as the earlier decision of Vinelott J in Derby v Weldon5 to support her submissions that:a) deployment of privileged material in interlocutory proceedings does generally suffice to engage the principle of collateral waiver – subject to a possible exception where the deployment was solely for a limited issue arising solely in the interlocutory application and does not go to the merits of the case as a whole; and
b) where such deployment addressed to the merits has taken place in an interlocutory hearing, it was not possible to "turn back the clock" by deciding not to deploy the privileged evidence at trial. She additionally relied upon textbook statements in Thanki, The Law of Privilege, at paragraph 5.57 and Hollander, Documentary Evidence, 10th Edn at paragraph 19–19, both of which express the view that reliance upon privileged material in court in the context of interlocutory proceedings involves a waiver (unless it can be argued that the waiver is in some way limited to an issue only arising on the interlocutory hearing). She referred to the statement in Hollander:
"Once this has occurred, the perceived advantage has been obtained (whether or not there actually was any benefit) and the other party is entitled to insist on all the associated material being before the court."
iii) The second ground upon which the Defendant brought the application was upon the basis of the Claimant's statement, contained in the Case Management Information Sheet filed at Court on 16 July 2010, that he intends to call each of Messrs Stephenson, Lankshear and McKim to give evidence at trial. In support of this ground Miss Davies submitted:
a) That the only purpose of calling such solicitors would be to give evidence as to what they were told by Mr. Patarkatsishvili in their interviews of him.
b) Should the Claimant intend to adduce evidence from any of these individuals, it would, in light of authorities such as R (Factortame) v Secretary of State6 and Vista Maritime Inc. v (1) Sesa Goa (2) A/S Bulk Trading Group Ltd7 be appropriate and good case management for the Court to order disclosure now, even if the Claimant had not previously waived privilege by deploying the privileged material at the summary judgment hearing.
c) The fact that, in his second witness statement, served in opposition to this application, Mr. Hastings asserts that the Claimant is, in fact, still undecided as to whether he will call these former solicitors as witnesses was irrelevant. Not only was that assertion somewhat surprising given the central importance of Mr. Patarkatsishvili's evidence to the Claimant's case (Mr. Patarkatsishvili for example having been the only person to whom it is alleged the Defendant made any threats in respect of Sibneft), but also the unequivocal indication in the Case Management Information Sheet (which has never been amended) is that the Claimant intends to call his former solicitors to give evidence as their interviews with Mr. Patarkatsishvili. Moreover the fact that witness statements are due to be exchanged on 29 April 2011 as a result of which the Claimant must by now in fact be in a good position to determine from which witnesses he wishes to serve statements belies the assertion that he is...
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