FM Capital Partners Ltd v Marino & Ors

FM Capital Partners Ltd v Marino & Ors

The BDO report was created for the dominant purpose of litigation, so litigation privilege applied. However, by providing the report to Mr Marino without an express or implied restriction on its use, privilege was waived for the purposes of these proceedings, entitling the third defendant to use the report. No further specific disclosure was warranted for other categories of documents as privilege was properly claimed or documents were irrelevant.

Parties
Claimant: FM Capital Partners Limited; Defendant: Frédéric Marino; Defendant: Aurélien Bessot; Defendant: Yoshiki Ohmura; Defendant: Marit Sjøvaag
Jurisdiction
England and Wales
Judgment Date
15 December 2017
Procedural Posture
Commercial Court Application / 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

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Parties

FM Capital Partners Limited

Claimant

Frédéric Marino

Defendant

Aurélien Bessot

Defendant

Yoshiki Ohmura

Defendant

Marit Sjøvaag

Defendant

Procedural Posture

Commercial Court Application / 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 party constitutes waiver of privilege
  3. 3 Whether further specific disclosure should be ordered for documents related to disciplinary proceedings, communications with the National Crime Agency, and settlement agreements

Ratio Decidendi

The BDO report was created for the dominant purpose of litigation, so litigation privilege applied. However, by providing the report to Mr Marino without an express or implied restriction on its use, privilege was waived for the purposes of these proceedings, entitling the third defendant to use the report. No further specific disclosure was warranted for other categories of documents as privilege was properly claimed or documents were irrelevant.

Court Disposition

Application granted in part

Orders

  • Specific disclosure of the BDO report is ordered.
  • No further specific disclosure is ordered for other documents or categories.