Ventouris v Mountain
| Jurisdiction | England & Wales |
| Judgment Date | 23 February 1990 |
| Date | 23 February 1990 |
| Court | Queen's Bench Division |
Queen's Bench Division
Before Mr Justice Saville
Discovery of documents - representative proceedings - privilege
Represented parties in a representative action were not "party to the proceedings" within Order 15, rule 12(3) of the Rules of the Supreme Court.
Legal professional privilege could be claimed for documents which had been obtained by solicitors to a party to actual or contemplated litigation but which had not come into existence for the purpose of that litigation.
Mr Justice Saville so held in the Queen's Bench Division, in a judgment in open court after a hearing in chambers, when refusing the application of the plaintiff, Apostolos Konstantinos Ventouris, under Order 24, rule 3, that the defendant, Trevor Rex Mountain, sued on his own behalf and on behalf of all other insurers/or underwriters who subscribed to a marine war risks policy, provide a further and better list of certain documents.
Mr Stephen Hofmeyr for the plaintiff; Mr Andrew Popplewell for the defendant.
MR JUSTICE SAVILLE said that two points of general importance arose:
The first arose from the fact that the defendant was sued in representative proceedings as representing himself and all other underwriters who subscribed to the policy upon which the plaintiff claimed.
The question was whether the court had power to order either the representative underwriter or the represented underwriters to make discovery of documents which were or had been in the possession, custody or power of the latter but not the former.
It was clear that the court had power to order a party to the proceedings to make discovery of documents, but as far as representative proceedings were concerned, it was clear to his Lordship from Order 15, rule 12(3) that represented persons were not party to the proceedings within that rule. It followed that his Lordship could not make any order under Order 24, rule 3 against the represented underwriters since they were not party to the proceedings.
Nor could any order be made against the defendant concerning documents which were not in his possession, custody or power since such documents also fell outside the ambit of the rule.
The second question was whether legal professional privilege could be claimed for documents which were not previously in the possession, custody or power of a party to actual or contemplated litigation and which had not come into existence...
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