Ventouris v Mountain

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE BINGHAM,LORD JUSTICE PARKER,SIR MICHAEL KERR
Judgment Date08 February 1991
Judgment citation (vLex)[1991] EWCA Civ J0208-3
Docket Number91/0077
Date08 February 1991

[1991] EWCA Civ J0208-3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

(MR JUSTICE SAVILLE)

Royal Courts of Justice

Before:

Lord Justice Parker

Lord Justice Bingham

Sir Michael Kerr

91/0077

Apostolos Konstantine Ventouris (Male)
and
Trevor Rex Mountain (Male)

MR STEPHEN TOMLINSON Q.C. and MR STEPHEN HOFMEYR, instructed by Messrs Hill Taylor Dickinson, appeared for the Appellant (Plaintiff).

MR JOHN DYSON Q.C. and MR ANDREW POPPLEWELL, instructed by Messrs Ince & Co., appeared for the Respondent (Defendant).

LORD JUSTICE BINGHAM
1

In March 1988 the vessel Italia Express was lying alongside Drapetsona New Mole at Piraeus in Greece when she was subject to a series of violent explosions which made her a total loss. The plaintiff was the owner of the vessel and claimed on her war risk underwriters, who rejected the claim. He accordingly issued proceedings against the defendant as a representative of the underwriters for his share of the insured value of the ship.

2

The defendant in his defence admitted the explosions and the loss but averred, among other things, that they were caused or connived at by the plaintiff himself. This averment was pleaded in the defence with considerable particularity.

3

It is not, I think, in doubt that this pleading relied heavily on information said to have been given to the defendant by a cousin of the plaintiff, who has for convenience been referred to as GDV. It is alleged that GDV was initially party to the plan to destroy the vessel but was at a later stage excluded from it.

4

The defendant's allegations are strongly denied by the plaintiff and we are not at this stage concerned in any way with their truth or falsity.

5

After service of the defence the plaintiff sought further and better discovery of various classes of documents. The defendant contended that these classes were protected from production by legal professional privilege. Some of the classes (for example, the original diary kept by GDV) the defendant, while asserting his privilege, has agreed to disclose to the plaintiff informally. One class in particular, "All documents received by or on behalf of Underwriters from GDV", the defendant has not agreed to disclose but has in respect of it stood on his asserted privilege.

6

The defendant's solicitor in his affidavit helpfully summarised the ground upon which privilege was claimed. He said that the categories of documents in issue

"all relate to documents obtained by my firm after 30th March 1988 [the date when the solicitors were instructed] for the purposes of the anticipated or pending litigation. Whatever the original purpose for which they were brought into existence, they were all obtained by my firm from GDV for the purposes of assisting in the anticipated or pending litigation; and they are only in the [First] Defendant's custody, possession or power by virtue of their having been obtained in this capacity. Accordingly as such they are privileged…"

7

Since the plaintiff did not accept this claim the matter was argued before Saville J. who, in a reserved judgment handed down on 23rd February 1990, upheld the defendant's claim to privilege. His judgment is reported at [1990] 1 W.L.R. 1370. The judge did, however, give the plaintiff leave to appeal on a question which (with a minor agreed amendment) very neatly encapsulates the issue now before us:

"Can legal professional privilege be claimed for [original] documents which were not previously in the possession, custody or power of a party to actual or contemplated litigation, which have not come into existence for the purposes of that litigation, but which have been obtained by the solicitors of that party for that purpose?"

8

The question thus raised is one of importance in the field of documentary discovery, in no way dependent on the somewhat lurid facts of this case, as the judge acknowledged by making no reference to those facts in his clear and succinct judgment. The issue may nonetheless have added importance in a case such as this.

9

The expression "legal professional privilege" is unhappy, because it falsely suggests a privilege enjoyed by the legal profession when in truth it is not the legal profession but the client who enjoys the privilege. It also suggests, surely wrongly, that a litigant in person is denied, in preparing his litigation, the protection of secrecy which is enjoyed by a litigant who instructs a lawyer. The expression "litigation privilege", which has also and perhaps increasingly been used, avoids that objection but is itself open to the objection that it suggests a privilege pertaining to litigation, whereas it is clear that the privilege covers communications between the client and his agent and his professional legal adviser even when no litigation is pending or contemplated. I shall therefore continue to use the traditional term of art while acknowledging its defects.

10

The doctrine of legal professional privilege is rooted in the public interest, which requires that hopeless and exaggerated claims and unsound and spurious defences be so far as possible discouraged, and civil disputes so far as possible settled without resort to judicial decision. To this end it is necessary that actual and potential litigants, be they claimants or respondents, should be free to unburden themselves without reserve to their legal advisers, and their legal advisers be free to give honest and candid advice on a sound factual basis, without fear that these communications may be relied on by an opposing party if the dispute comes before the court for decision. It is the protection of confidential communications between client and legal adviser which lies at the heart of legal professional privilege, as is clear from the classical exposition of the law by Sir George Jessel M.R. in Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644 at 648–9. Without the consent of the client, and in the absence of iniquity or dispute between client and solicitor, no enquiry may be made into or disclosure made of any instructions which the client gave the solicitor or any advice the solicitor gave the client, whether in writing or orally.

11

Even confining oneself to the litigious field, it is however plain that legal professional privilege does not end there. Confidential communications between a party to litigation or his legal adviser and third parties for the purpose of the litigation are without doubt protected from production to the other party. So are documents prepared for the dominant purpose of submission to a legal adviser in connection with actual or anticipated litigation ( Waugh v. British Railways Board [1980] A.C. 521). The issue is how much further the privilege extends. The plaintiff argues that it does not extend to cover any original document, even if obtained by a party to litigation or his legal adviser for purposes of the litigation, if the document did not come into existence for purposes of the litigation. The defendant argues that the privilege covers any original document obtained by a party to litigation or his legal adviser for purposes of the litigation, whether or not the document came into existence for purposes of the litigation and (therefore) whether or not the document existed before the litigation was contemplated or commenced.

12

Approaching the issue as one of pure principle and without regard to authority, I prefer the plaintiff's contention. Our system of civil procedure is founded on the rule that the interests of justice are best served if parties to litigation are obliged to disclose and produce for the other party's inspection all documents in their possession, custody or power relating to the issues in the action. This is not of course a necessary rule but it is firmly established here. It is not however an absolute rule, as exceptions such as legal professional privilege and public interest immunity demonstrate. Nonetheless, disclosure being generally regarded as beneficial, any exception has to be justified as serving the public interest which gives rise to the exception. As Lord Edmund-Davies said in Waugh at page 543C, "…we should start from the basis that the public interest is, on balance, best served by rigidly confining within narrow limits the cases where material relevant to litigation may be lawfully withheld. Justice is better served by candour than by suppression. For, as it was put in the Grant v. Downs majority judgment, at p.686: '…the privilege…detracts from the fairness of the trial by denying a party access to relevant documents or at least subjecting him to surprise.'" The courts must not in any way encroach on the right of a litigant or potential litigant to seek and obtain legal advice on his prospects and the conduct of proceedings under the seal of confidence nor on the right of such a litigant and his legal adviser to prepare for and conduct his case without, directly or indirectly, revealing the effect of that advice. In recognition of these rights, perhaps generously interpreted, proofs of witnesses, whether factual or expert, and communications with potential witnesses, have been held immune from production. But it is hard to see how these rights are infringed if a party is obliged to produce an original document which was in existence before litigation was in the air, and which a litigant or his legal adviser have obtained from a third party for purposes of the litigation, but which the third party could himself be compelled to produce at the trial without any possible ground for objection.

13

The conclusion which principle suggests is in my judgment that which authority supports, although the present question has...

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    ...13) [2020] EWCA Civ 177, at [24]. 14) [2020] EWCA Civ 177, at [44]. 15) [2020] EWCA Civ 177, at [47]. 16) Notably Ventouris v Mountain [1991] 1 WLR 607 (CA); see also Pearce v Foster (1885) 15 QBD 114, 118-9 (CA); Dubai Bank Ltd v Galadari [1990] Ch 1980 (CA); Sumitomo Corp v Credit Lyonnai......
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    ...that the selection would give the other party a clue to the legal advice given. Or, as later put in the case of Ventouris v Mountain [1991] 1 WLR 607, the selection would betray the trend of legal advice Morgan J believed that the correct approach was that taken in Lyell. Inference of legal......
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    ...non-privileged documents On the first issue, Arnold J followed the case of Ventouris v Mountain (The Italia Express) (No 1) [1991] 1 WLR 607, and held, unsurprisingly, that privilege did not extend to a pre-existing, non-privileged document merely because it has been attached to a piece of ......
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10 books & journal articles
  • Subject Index
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    • International Journal of Evidence & Proof, The Nbr. 9-4, December 2005
    • 1 December 2005
    ...12 3Vauxhall Water Co. v Quick (1878) LR 3 QBD315 .......................................... 187–8, 189, 198Ventouris v Mountain [1991] 1 WLR 607............................................................... 188–9Vernon v Bosley (No. 2) [1997] 1 All ER 614........................................
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    ...Civ 474, [2003] QB 1556 at 1571–2.25 (1876) LR 2 Ch D 644.26 [2003] EWCA Civ 474, [2003] QB 1556 at 1565. See also Ventouris v Mountain [1991] 1 WLR 607at 612 per Bingham LJ.27 It follows, of course, that legal advice privilege also did not apply. There was no need for thecourt to examine t......
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    • International Journal of Evidence & Proof, The Nbr. 11-4, October 2007
    • 1 October 2007
    ...cert. denied, 273 US 702 (1926) . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 125Ventouris v Mountain [1991] 3 All ER 472, CA. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53Voth Bros Construction (1974) Ltd v Board ofSchool Tru......
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