Secretary of State for Trade and Industry v Baker and Others
| Pages | 356-359 |
| Date | 01 February 1999 |
| Published date | 01 February 1999 |
| DOI | https://doi.org/10.1108/eb025908 |
| Author | Rinita Sarker |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 6 No. 4 — Criminal Procedure
CRIMINAL PROCEDURE
Secretary of State for Trade and Industry v
Baker and Others
Rinita Sarker
Discovery and inspection of documents are not
only the primary investigative tools of any litigator
but are also crucial to ensuring fair play between
fighting litigants. Access to documents has tradi-
tionally only excluded those documents covered by
litigation privilege. However, the recent case of
Secretary of State for Trade and Industry v Baker and
Others [1998] 1 All ER 673 constitutes a marked
departure from the established view of litigation
privilege and the categories of document protected
by that privilege.
LITIGATION PRIVILEGE
The traditional view of litigation privilege is that it
applies to communications which:
— are between a client, his solicitor or agent and a
third party;
— came into existence for the sole or dominant
purpose of either giving or getting legal advice
in regard to the litigation or collecting evidence
for use in the litigation;
— are created when litigation is in prospect or is
pending.
Such documents arc excluded from the normal
discovery process on the basis that parties ought to
be able to prepare for litigation safe in the knowledge
that others will not be able to examine and profit
from their preparatory work.
CASE SUMMARY
Secretary of State for Trade and Industry v Baker and
Others considered whether a statutory report pre-
pared by the administrators of an insolvent company
should be disclosed in directors' disqualification
proceedings, or whether it could be withheld on
the twin grounds of legal professional privilege and
lack of sufficient relevance.
Following the collapse of Barings Bank in Feb-
ruary 1995, with losses of £827m accumulated by
the unauthorised trading of Nick Leeson, the bank's
holding company and a number of its subsidiaries
were put into administration. The Barings' adminis-
trators produced a report for the Secretary of State in
compliance with their obligations under s. 7(3) of
the Company Directors Disqualification Act 1986,
as to the fitness of directors in Barings and its sub-
sidiaries to act as company directors. The Secretary
of State then instituted directors' disqualification
proceedings against ten directors including the appli-
cant, Andrew Tuckey, who was the most senior of
the directors.
Mr Tuckey applied under RSC Ord 24 r11 for an
order requiring the Secretary of State for Trade and
Industry to produce for inspection a copy of the
administrators' report. Such reports have in the past
been routinely denied to parties on the grounds of
relevance, privilege and public interest immunity.
The Secretary of State in this instance did not argue
that the report was protected by public interest
immunity, but did argue that it was protected by
privilege and that it should not be disclosed for lack
of relevance.
Mr Tuckey also had to prove in accordance with
Ord 24 r13[1] that the production of the report was
'either necessary for disposing fairly of the cause or
matter or for saving costs'.
The Secretary of State argued that the underlying
documents themselves were, or could be made,
available or else the factual contents of the report
could be extracted elsewhere. The applicant accepted
this comment but pointed out that the value of the
report lay in the fact that it constituted an organised
analysis and presentation of complex facts. The
report would save the respondents considerable
time and expense in trawling through the source
material in order to produce their own analysis.
Sir Richard Scott V-C had regard to the fact that
the report, which was a public document, was
Page 358
To continue reading
Request your trial