Jersey Unreported Judgments

Trust - application by the plaintiff for permission to use revealed documents of proceedings held in private.

[2014]JRC182

Royal Court

(Samedi)

25 September 2014

Advocate S. M. Baker for the Representor.

Advocate F. B. Robertson for the First Respondent.

Advocate P. G. Nicholls for RBC Trustees (CI) Limited as trustee of the Third to Seventh Respondents.

Advocate N. F. Journeaux for the Eighth Respondent.

judgment

the commissioner:

1.        This judgment deals with the third hearing of an application by the plaintiff company Trilogy Management Limited for permission to use, in other proceedings, documents which were revealed and made available to it only in proceedings heard in private.  The private proceedings in question were begun in 2010 and they relate to funds held on charitable trusts, and there were earlier proceedings in 2004 as well, also heard in private.  Some of the documents generated in the 2004 proceedings were also used in the 2010 proceedings (without objection from any of the parties to the 2004 proceedings) and are amongst those comprised in the present application. 

2.        The proceedings in which Trilogy seeks to use the private material are an action in England against a firm of solicitors, and one of its partners, who acted for the trustee of the Foundation in the 2004 proceedings.  The firm did not act for Trilogy, which was not a party to the 2004 proceedings, nor did they act in the 2010 proceedings.  The English proceedings have been stayed for a short time for the purpose of allowing Trilogy to satisfy the requirements of the pre-action protocol, but subject to that they are ongoing proceedings. 

3.        The present summons was issued on 13th May, 2014.  On 19th May I adjourned the application after a full day's hearing and on 29th May handed down a judgment giving reasons for that adjournment.  I shall not repeat the reasoning of that judgment.  Basing myself principally on three decisions of the Royal Court, namely Enhörning v Nordic Link (unreported, 24 January 1997), in which the Court cited an important passage from the Australian case Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 110 ALR 685, 693, Westbond International Bank v Cantrust (CI) Limited [2004] JRC 111 and In the matter of the M and other trusts [2012] (2) JLR 51, the main conclusions were summarized in paragraph 32:-

(i)        It is accepted that the application is made in good faith, and that there are likely to be documents capable of assisting Trilogy to achieve justice in the new proceedings. 

(ii)       It is for Trilogy to identify which particular documents, or possibly specific descriptions of documents, it needs in order to plead and make good its case in the English proceedings, and to demonstrate that need to the Court. 

(iii)      If the Court's order is to give permission by reference to categories of documents, as opposed to specific documents, it will expressly limit its permission to documents relevant to the issues in the new proceedings. 

(iv)      If documents are such as to disclose the nature and result of the 2010 action, permission will not be given to use those documents unless the Court is satisfied that no harm will come from that disclosure. 

(v)       The Court will also need to be satisfied of the criteria for permitting documents disclosed under the implied undertaking to be used against third parties. 

(vi)      The order will expressly provide that its permission does not authorize the use of documents protected by legal professional privilege. 

4.        In short, the task of the Court can be summarised in this way :  to consider the criteria identified in the Springfield case, namely the nature and provenance of the document in question, its forensic value in the proposed litigation, and the importance of the privacy imposed by the court; to avoid disclosing the nature and result of private proceedings;  and to avoid harm to the trust in question and its assets. 

5.        On 11^th June Trilogy renewed its application, but limited to those documents which it would immediately need in the early stages of the English proceedings.  I gave an extempore judgment granting permission in that limited sense, and an order dated 11^th June was duly made, together with directions for the future conduct of the application. 

6.        The application came before me for a third time on 18^th July.  By this time Trilogy's request had sensibly been reduced, no doubt in response to my earlier judgment, from an application to use what I had estimated to be 100 lever-arch files to an application, still substantial, for the contents of five lever-arch files.  These documents were listed in a schedule identifying 706 documents, including some where only part of the document is requested to be used. 

7.        The first five documents comprise the pleadings in the 2010 proceedings.  To my mind these do not satisfy the criteria which I have mentioned.  They plainly reveal the nature, though obviously not the result, of the private proceedings, and they would in my judgment not have the required forensic value in the English proceedings. 

8.        As for the rest of the documents, none of the parties to the present application made a case that they lacked forensic importance for the English proceedings.  Some of the parties pointed out that public disclosure of such documents might attract attention to the Foundation and the sub-trusts which was unwanted and undesirable.  However, none of the parties made a sufficient case, or at least none have satisfied me, that the public disclosure of these documents would cause particular harm to the operation of the charitable trusts.  Part of the reason for that is the way in which Trilogy has now limited the scope of its claim.  For example, item 6 in the schedule is the affidavit of one of the directors of the trustee company, but the application is now limited to sections (B), (C) and (E) of that affidavit.  Similar limits are proposed in respect of the other written evidence and of the transcripts of oral evidence.  These limits have the effect, in my judgment, of focusing the application on material which has the required forensic importance and which at the same time appears to avoid harm to the charitable trusts or damaging the Court's interest in preserving the privacy which it originally ordered. 

9.        The other parties suggested either that the present application should be further adjourned, or that the summons should proceed in an incremental fashion, with renewed applications for permission in respect of smaller and more specific descriptions of documents.  I am not prepared to accede to those suggestions.  In the first place they would involve a disproportionate use of court time and incur disproportionate professional fees, and second the parties have in my judgment had sufficient time since May this year to formulate concluded submissions in respect of the application as a whole. 

10.      I am therefore able to conclude that, if the parties to the application cannot detect or propound any particular harm which may come from public disclosure, there is none.  The privacy of private proceedings remains important, and it was certainly necessary for Trilogy to make this application if it were to use any of the scheduled documents, particularly because some of them were produced in the original 2004 proceedings (to which Trilogy was not a party) and which have been provided to Trilogy only in the 2010 proceedings (which were themselves also private).  But essentially my decision is that Trilogy have made out their case that, since public disclosure will not cause particular harm to the charities, the forensic value of these documents in the English proceedings justifies the Court in granting permission to use them for that purpose and in lifting the privacy attaching to them. 

11.      I mentioned, in sub-paragraph 32(5) of my judgment of 29^th May, that I would need to be satisfied of the criteria for permitting documents disclosed under the implied undertaking to be used against third parties.  The point here was that some of the documents in question were not only derived from proceedings heard in private, but were also produced pursuant to orders of the Court which carried an implied undertaking not to use the documents in other proceedings without the permission of the Court.  The authorities which were cited to me in respect of the criteria to be applied when granting permission for the use of such documents had all related to situations in which a party (typically a defendant) had disclosed documents in one set of proceedings and the plaintiff or claimant wished to use the same documents against the same defendant in different proceedings.  Often the different proceedings were different only in the most technical sense. 

12.      In those circumstances, I was uncertain about the present situation, in which documents had been produced by parties to the 2010 proceedings and Trilogy now wants to use them against defendants who were not parties at all to any of the earlier proceedings.  On reflection, however, I am satisfied that, if the criteria for using a document against the party producing it are satisfied, then there is no greater difficulty about using it against a third party. 

13.      I also mentioned, in the judgment of 29^th May, the question of legal professional privilege.  This question of privilege cannot be determined on the present application for the reason that the parties having the benefit of any such privilege are not before the Court and have not waived their rights.  Trilogy must make its own decision about the use of any such document and the existence or non-existence of any such privilege.  At the same time five particular documents were identified as being subject, or being at least probably subject, to legal professional privilege.  These were identified as documents 69, 70, 98, 99 and 154 in the schedule. 

14.      In conclusion, I am prepared to authorise the use in the English proceedings of all the documents, or parts of documents, listed in the schedule produced for the purpose of the hearing on 18^th July, but excluding the pleadings (documents 1 to 5 inclusive) and also excluding documents 69, 70, 98, 99 and 154. 

Authorities

Enhörning v Nordic Link (unreported, 24 January 1997).

Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 110 ALR 685, 693.

Westbond International Bank v Cantrust (CI) Limited [2004] JRC 111.

In the matter of the M and other trusts [2012] (2) JLR 51.