KYLA SHIPPING CO LTD v FREIGHT TRADING LTD

KYLA SHIPPING CO LTD v FREIGHT TRADING LTD

Claimants failed to discharge the burden of proving litigation privilege for documents created during the 'ballast exercise' prior to crystallisation of the mispricing claim; no waiver of privilege occurred by reference to expert reports in witness statements as there was no reliance on particular documents.

Parties
Claimant: Kyla Shipping Co Ltd; Claimant: Vega Carriers Ltd; Defendant: Freight Trading Ltd; Defendant: C Transport Panamax Ltd; Defendant: C Transport Maritime S.A.M; Defendant: Luigi Cafiero
Jurisdiction
England and Wales
Judgment Date
22 February 2022
Procedural Posture
Commercial Court Application / Ruling on Litigation Privilege and Waiver of Privilege
Outcome
Application for waiver of privilege dismissed; Claimants required to provide further list of documents and supporting witness statement on litigation privilege.
Legal Topics
Litigation Privilege, Waiver of Privilege, Disclosure, Limitation of Actions
Civil Procedure Commercial Law Litigation Privilege Waiver of Privilege Disclosure Limitation of Actions

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Parties

Kyla Shipping Co Ltd

Claimant

Vega Carriers Ltd

Claimant

Freight Trading Ltd

Defendant

C Transport Panamax Ltd

Defendant

C Transport Maritime S.A.M

Defendant

Luigi Cafiero

Defendant

Procedural Posture

Commercial Court Application / Ruling on Litigation Privilege and Waiver of Privilege

Legal Issues

  1. 1 Whether litigation privilege applies to documents created during the 'ballast exercise' prior to crystallisation of the mispricing claim
  2. 2 Whether reference to privileged materials in a witness statement constitutes waiver of privilege

Ratio Decidendi

Claimants failed to discharge the burden of proving litigation privilege for documents created during the 'ballast exercise' prior to crystallisation of the mispricing claim; no waiver of privilege occurred by reference to expert reports in witness statements as there was no reliance on particular documents.

Court Disposition

Application for waiver of privilege dismissed; Claimants required to provide further list of documents and supporting witness statement on litigation privilege.

Orders

  • Claimants to reconsider claim for litigation privilege on the basis that privilege may not be claimed for the mismanagement dispute but may be claimed when litigation was in reasonable contemplation in respect of the mispricing claim.
  • Claimants to serve a further list of documents supported by a confirmatory witness statement within 7 days from hand down of judgment.