Crociani -v- Crociani [2015] JRC 145 (01 July 2015)

Crociani -v- Crociani [2015] JRC 145 (01 July 2015)

The references to legal advice in the first defendant's third affidavit and the 3rd June 2015 letter crossed the line from effect to gist, but the affidavit was not deployed in evidence as the relevant application was withdrawn before argument. Privilege was not waived and fairness did not require disclosure of the advice. However, the defendants must disclose when the advice was given and may file affidavit evidence explaining the timing of the amendment application. In the absence of such evidence, the court will proceed on the assumption that the counterclaim could have been pleaded earlier.

Citation
[2015] JRC 145
Parties
Plaintiffs: Plaintiffs; Defendant: First Defendant; Defendant: Second Defendant; Defendant: Third Defendant; Defendant: Fourth Defendant
Jurisdiction
Jersey
Judgment Date
01 July 2015
Procedural Posture
Civil Trusts / Interlocutory Application for Disclosure of Legal Advice Based on Alleged Waiver
Outcome
Application for disclosure of legal advice refused; directions given for further affidavit evidence or assumptions to be made.
Legal Topics
Waiver of Privilege, Amendment of Pleadings, Disclosure of Legal Advice, Abuse of Process
Civil Procedure Trusts Evidence Waiver of Privilege Amendment of Pleadings Disclosure of Legal Advice Abuse of Process

Case Brief

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Parties

Plaintiffs

Plaintiffs

First Defendant

Defendant

Second Defendant

Defendant

Third Defendant

Defendant

Fourth Defendant

Defendant

Procedural Posture

Civil Trusts / Interlocutory Application for Disclosure of Legal Advice Based on Alleged Waiver

Legal Issues

  1. 1 Whether reference to legal advice in affidavit and correspondence constitutes waiver of privilege
  2. 2 Whether fairness requires disclosure of legal advice referred to in affidavit and letters
  3. 3 Whether the application to amend is an abuse of process

Ratio Decidendi

The references to legal advice in the first defendant's third affidavit and the 3rd June 2015 letter crossed the line from effect to gist, but the affidavit was not deployed in evidence as the relevant application was withdrawn before argument. Privilege was not waived and fairness did not require disclosure of the advice. However, the defendants must disclose when the advice was given and may file affidavit evidence explaining the timing of the amendment application. In the absence of such evidence, the court will proceed on the assumption that the counterclaim could have been pleaded earlier.

Court Disposition

Application for disclosure of legal advice refused; directions given for further affidavit evidence or assumptions to be made.

Orders

  • First, second and fourth defendants to disclose when the advice referred to in paragraph 15 of the first defendant's third affidavit and the 3rd June 2015 Carey Olsen letter was given.
  • First, second and fourth defendants given permission to file affidavit evidence explaining why the counterclaim was not filed earlier.