Elizabeth Tchenguiz Imerman (Petitioner) v Vivian Saul Imerman
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Moylan: |
| Judgment Date | 17 December 2012 |
| Neutral Citation | [2012] EWHC 4047 (Fam) |
| Court | Family Division |
| Docket Number | No. FD09D00047 |
| Date | 17 December 2012 |
[2012] EWHC 4047 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Moylan
No. FD09D00047
Mr. Richard Harrison QC and Mr. D. Hagen (instructed by Withers LLP) appeared on behalf of the Petitioner.
Mr. Charles Howard QC, Mr. H. OliverandMr. J. Hilliard (instructed by Hughes Fowler Carruthers) appeared on behalf of the Respondent.
Mr. Christopher Pocock QC and Miss Laura Moys (instructed by Mills & Reeve LLP) appeared on behalf of the beneficiaries.
Judgment re Common Interest Privilege
I am now determining what directions, if any, I should give in respect of an informal application made by the wife for disclosure by the husband of certain communications in respect of which he claims privilege. It is asserted by Mr. Harrison on behalf of the wife that the documents which are sought are potentially relevant to two central issues, as he describes them. First, whether certain trusts are nuptial; and, secondly, whether the assets of those trusts are resources available, or likely to be available, to the husband.
The issue has developed in this way: On 8 th August, 2011 the wife's solicitors wrote to the husband's solicitors requesting as follows:
"Please could you provide copies of all communications, whether written or in the form of an attendance note of an oral communication passing between your client, your firm, any other advisers engaged by him and Rozel Trustees (Channel Islands) Ltd., STC International Ltd. Alto Trust Co. Ltd., Primafides (Suisse) SA and/or any other manifestation of the Stonehage Group (and/or anyone acting on their behalf) relating to our client's application for variation of trust, joinder and disclosure as issued on 13 May, 2011".
The husband's solicitors replied on 20 th September, 2011 as follows:
"Any communications and/or documents of the type you request would be, insofar as they existed, confidential communications between my client or my firm and third parties or their advisers between whom a common interest in the subject matter existed and which, therefore, are or would be, by their very nature, privileged. Accordingly, you are not entitled to what you seek. This assertion of privilege (a) should not be taken as an admission that there were any such communications in any event; and (b) does not permit, as a matter of law, any inferences to be drawn".
On 2 nd December, 2011 Mrs. Justice Baron ordered that the wife's application for disclosure of communications between the husband and the trustees, as referred to in the letter of 8 th August, 2011, be adjourned to be heard at, effectively, this part-heard directions hearing.
Mr. Howard, on behalf of the husband, submits that the issue is so self-evident that I should deal with it now and dismiss the application for disclosure on the basis that the information is not relevant and, even if it was relevant, the claim for common interest privilege or other privilege is transparent.
Mr. Pocock, on behalf of the interveners, says that the issues are so complex that it will take five days to resolve.
Mr. Harrison sits in the middle and says that the issue would take two to three days to resolve.
Given the course of the litigation so far and, in particular, that this issue was set up for hearing I do not propose to deal with it in a summary way. I remind myself that in the written submissions prepared by Mr. Howard for the hearing in June it was said, "If the wife really intends to persist [in this application] then the entire matter should be dealt with at a single hearing of approximately three days dedicated to it rather than approach it in a piecemeal fashion".
I propose to deal with the issue on the basis that I am giving directions only.
There is no specific rule in the Family Procedure Rules which governs the issue of privilege. The general rule is that parties are required, after the preliminary exchange of documents, to make such disclosure as may be required by the court. I have therefore, for guidance, been referred to the Civil Procedure Rules and other documents, including extracts from textbooks and an authority from the Hong Kong Court of First Instance.
CPR 31.10 deals with the procedure for standard disclosure. It provides that each party has to serve on the other a list of documents in the relevant form. 31.10(3) provides,
"The list must identify the documents in a convenient order and manner and as concisely as possible ….
(4) "The list must indicate –
(a) those documents in respect of which the party claims a right or duty to withhold inspection;
Practice Direction 31A, at para. 3.1, stipulates that the list should be in Form N265. Paragraph 3.2 provides:
"In order to comply with Rule 31.10(3) it will normally be necessary to list the documents in date order, to number them consecutively and to give each a concise description (e.g. letter, claimant to defendant). Where there is a large number of documents all falling into a particular category the disclosing party may list those documents as a category ——"
Paragraph 4.5 provides:
"If the disclosing party wishes to claim that he has a right or duty to withhold a document, or part of a document, in his list of documents from inspection (see rule 31.19(3)), he must state in writing:
(1) that he has such a right or duty, and
(2) the grounds on which he claims that right or duty".
CPR Rule 31.19 , which is headed "Claim to Withhold...
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