FM Capital Partners Ltd v Marino & Ors [2017] EWHC 3700 (Comm) (15 December 2017)

FM Capital Partners Ltd v Marino & Ors [2017] EWHC 3700 (Comm) (15 December 2017)

The BDO report was prepared for the dominant purpose of contemplated litigation and was privileged, but provision of the report to Mr Marino, in the absence of any express or implied restriction, entitled him to use it in subsequent litigation. By disclosing it in these proceedings, privilege was lost as against the other parties for the purposes of these proceedings. Other categories of documents sought were either not relevant or properly withheld for privilege.

Citation
[2017] EWHC 3700 (Comm)
Parties
Claimant: FM Capital Partners Limited; Defendant: Frédéric Marino; Defendant: Aurélien Bessot; Defendant: Yoshiki Ohmura; Defendant: Marit Sjøvaag (formerly known as Marit Sjøvaag Marino)
Jurisdiction
England and Wales
Judgment Date
15 December 2017
Procedural Posture
Commercial Court Application for Specific Disclosure / Interlocutory Application for Specific Disclosure
Outcome
Application granted in part
Legal Topics
Litigation Privilege, Waiver of Privilege, Disclosure of Documents, Settlement Agreements
Civil Procedure Commercial Law Litigation Privilege Waiver of Privilege Disclosure of Documents Settlement Agreements

Case Brief

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Parties

FM Capital Partners Limited

Claimant

Frédéric Marino

Defendant

Aurélien Bessot

Defendant

Yoshiki Ohmura

Defendant

Marit Sjøvaag (formerly known as Marit Sjøvaag Marino)

Defendant

Procedural Posture

Commercial Court Application for Specific Disclosure / Interlocutory Application for Specific Disclosure

Legal Issues

  1. 1 Whether documents created during an internal investigation are protected by litigation privilege
  2. 2 Whether provision of a privileged document to a third party constitutes waiver of privilege
  3. 3 Whether settlement agreements and related documents are disclosable

Ratio Decidendi

The BDO report was prepared for the dominant purpose of contemplated litigation and was privileged, but provision of the report to Mr Marino, in the absence of any express or implied restriction, entitled him to use it in subsequent litigation. By disclosing it in these proceedings, privilege was lost as against the other parties for the purposes of these proceedings. Other categories of documents sought were either not relevant or properly withheld for privilege.

Court Disposition

Application granted in part

Orders

  • Specific disclosure of the BDO report is ordered
  • Application for disclosure of other documents is refused