NMC Health PLC v Ernst & Young LLP (No. 2) (Rev1) [2024] EWHC 2793 (Comm) (01 November 2024)

NMC Health PLC v Ernst & Young LLP (No. 2) (Rev1) [2024] EWHC 2793 (Comm) (01 November 2024)

The judge held that it is necessary for the witness to confirm explicitly that the approach in WH Holding Limited v E20 Stadium LLP was followed, specifically that privileged and non-privileged material cannot be disentangled, and directed that a further witness statement be served to confirm this.

Citation
[2024] EWHC 2793 (Comm)
Parties
Claimant: NMC Health PLC (in administration); Defendant: Ernst & Young LLP
Jurisdiction
England and Wales
Judgment Date
01 November 2024
Procedural Posture
Commercial Court Proceedings / Interlocutory Application Regarding Privilege Over Regulator Documents
Outcome
Further witness statement required to confirm privilege approach; no final determination on privilege at this stage.
Legal Topics
Litigation Privilege, Legal Advice Privilege, Disclosure, Regulator Communications
Civil Procedure Commercial Law Litigation Privilege Legal Advice Privilege Disclosure Regulator Communications

Case Brief

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Parties

NMC Health PLC (in administration)

Claimant

Ernst & Young LLP

Defendant

Procedural Posture

Commercial Court Proceedings / Interlocutory Application Regarding Privilege Over Regulator Documents

Legal Issues

  1. 1 Whether certain documents provided to UK and US regulators are protected by litigation privilege
  2. 2 Whether the witness evidence sufficiently establishes that privilege cannot be disentangled from non-privileged material

Ratio Decidendi

The judge held that it is necessary for the witness to confirm explicitly that the approach in WH Holding Limited v E20 Stadium LLP was followed, specifically that privileged and non-privileged material cannot be disentangled, and directed that a further witness statement be served to confirm this.

Court Disposition

Further witness statement required to confirm privilege approach; no final determination on privilege at this stage.

Orders

  • Mr. O'Rourke to serve a further witness statement confirming the approach to privilege and the inability to disentangle privileged from non-privileged material.