NMC Health PLC (in Administration) v Ernst & Young LLP

NMC Health PLC (in Administration) v Ernst & Young LLP

The investigative documents generated by the administrators, other than interview transcripts and witness statements, are not relevant to the issues in dispute and therefore are not disclosable. The interview transcripts and witness statements are relevant, and litigation privilege has been properly asserted over them as they were created for the dominant purpose of litigation reasonably in contemplation.

Parties
Claimant: NMC Health PLC (in administration); Defendant: Ernst & Young LLP
Jurisdiction
England and Wales
Judgment Date
14 November 2024
Procedural Posture
Commercial Court Claim (disclosure Application) / Interlocutory Application for Disclosure and Privilege Determination
Outcome
Application for disclosure of investigative documents (other than interviews and witness statements) refused; litigation privilege upheld over interviews and witness statements.
Legal Topics
Disclosure of Documents, Litigation Privilege, Relevance of Evidence, Abuse of Process (henderson V Henderson)
Civil Procedure Insolvency Commercial Law Disclosure of Documents Litigation Privilege Relevance of Evidence Abuse of Process (henderson V Henderson)

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Parties

NMC Health PLC (in administration)

Claimant

Ernst & Young LLP

Defendant

Procedural Posture

Commercial Court Claim (disclosure Application) / Interlocutory Application for Disclosure and Privilege Determination

Legal Issues

  1. 1 Whether investigative documents generated by administrators are relevant and disclosable
  2. 2 Whether litigation privilege applies to interview transcripts and witness statements obtained by administrators
  3. 3 Whether the Defendant is precluded from raising disclosure arguments due to prior rulings (Henderson v Henderson)

Ratio Decidendi

The investigative documents generated by the administrators, other than interview transcripts and witness statements, are not relevant to the issues in dispute and therefore are not disclosable. The interview transcripts and witness statements are relevant, and litigation privilege has been properly asserted over them as they were created for the dominant purpose of litigation reasonably in contemplation.

Court Disposition

Application for disclosure of investigative documents (other than interviews and witness statements) refused; litigation privilege upheld over interviews and witness statements.

Orders

  • No disclosure required of investigative documents other than interviews and witness statements.
  • Privilege issue to be determined for interviews and witness statements; litigation privilege upheld for these documents.