A v B & Anor

A v B & Anor

The court refused to grant the declaration sought by A (or the alternative declaration sought by B) because the statutory regime under SATCAR requires the recipient of a statutory notice (B) to determine whether documents are privileged, and only to withhold those that are in fact privileged. The mere assertion of privilege by A is insufficient to require B to withhold disclosure. The proper mechanism for resolving disputes over privilege is through proceedings between A and B, not by declaratory relief in the abstract. The counterclaim process already addresses the substantive dispute over privilege.

Parties
Claimant: A; First Defendant: B; Second Defendant: The Financial Reporting Council Limited
Jurisdiction
England and Wales
Judgment Date
10 June 2020
Procedural Posture
Part 8 Claim / Judgment on Application for Declaratory Relief
Outcome
Declaratory relief refused
Legal Topics
Privilege in Regulatory Investigations, Statutory Notices Under SATCAR, Obligations of Auditors Regarding Client Privilege, Declaratory Relief Procedure
Legal Professional Privilege Regulatory Law Audit Regulation Privilege in Regulatory Investigations Statutory Notices Under SATCAR Obligations of Auditors Regarding Client Privilege Declaratory Relief Procedure

Case Brief

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Parties

A

Claimant

B

First Defendant

The Financial Reporting Council Limited

Second Defendant

Procedural Posture

Part 8 Claim / Judgment on Application for Declaratory Relief

Legal Issues

  1. 1 Whether an auditor (B) is obliged to withhold production to the regulator (FRC) of documents over which its client (A) asserts legal professional privilege, or whether B is entitled/obliged to make its own assessment of the validity of A’s claim to privilege before withholding disclosure.

Ratio Decidendi

The court refused to grant the declaration sought by A (or the alternative declaration sought by B) because the statutory regime under SATCAR requires the recipient of a statutory notice (B) to determine whether documents are privileged, and only to withhold those that are in fact privileged. The mere assertion of privilege by A is insufficient to require B to withhold disclosure. The proper mechanism for resolving disputes over privilege is through proceedings between A and B, not by declaratory relief in the abstract. The counterclaim process already addresses the substantive dispute over privilege.

Court Disposition

Declaratory relief refused

Orders

  • No declaration granted in the form sought by A or B.