NZH LIMITED v RAMSPECS LIMITED [2015] NZHC 2396

NZH LIMITED v RAMSPECS LIMITED [2015] NZHC 2396

The Court held that litigation privilege under s56 continued because the earlier Nuphlo proceeding and the present NZH proceeding were part of the same legal combat — involving largely the same parties, issues and purpose — and thus the privilege in communications and information prepared for the dominant purpose of Nuphlo's proceeding subsists; accordingly the defendants' application to declare the privilege ended and compel discovery was declined, subject to review of whether specific documents were properly claimed privileged.

Citation
[2015] NZHC 2396
Parties
First Plaintiff: NZH LIMITED; Second Plaintiff: TRANSPORT HYDRAULIC SOLUTIONS NZ LIMITED; Third Plaintiff: TRANSPORT HYDRAULIC SOLUTIONS (GLOBAL) NZ LIMITED; First Defendant: RAMSPECS LIMITED; Second Defendant: GAVIN BROKENSHIRE; Third Defendant: R A MCLEAY; Fourth Defendant: NUPHLO PUMPS LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 October 2015
Procedural Posture
High Court Civil Discovery and Privilege Dispute / Interlocutory Application Concerning Claims of Litigation Privilege and Discovery
Outcome
Application dismissed in part; orders sought by defendants to declare privilege ended and to compel discovery were declined because privilege subsists where proceedings form the same legal combat; court directed review of privilege claims and a conference to determine specific disclosure issues and costs.
Legal Topics
Litigation Privilege, Section 56 Evidence Act 2006, Privilege Survival After Termination of Proceedings, Discovery Under High Court Rules R 8, Abuse of Process, Concurrent Rights Under Copyright Act S124
Civil Procedure Evidence Privileged Communications Intellectual Property Copyright Law Discovery Obligations Litigation Privilege Section 56 Evidence Act 2006 +4 more

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Parties

NZH LIMITED

First Plaintiff

TRANSPORT HYDRAULIC SOLUTIONS NZ LIMITED

Second Plaintiff

TRANSPORT HYDRAULIC SOLUTIONS (GLOBAL) NZ LIMITED

Third Plaintiff

RAMSPECS LIMITED

First Defendant

GAVIN BROKENSHIRE

Second Defendant

R A MCLEAY

Third Defendant

NUPHLO PUMPS LIMITED

Fourth Defendant

Procedural Posture

High Court Civil Discovery and Privilege Dispute / Interlocutory Application Concerning Claims of Litigation Privilege and Discovery

Legal Issues

  1. 1 Whether litigation privilege under s56 Evidence Act 2006 survives termination of the proceeding that gave rise to it
  2. 2 Whether privilege in documents prepared for the dominant purpose of an earlier proceeding ended on discontinuance/settlement
  3. 3 Whether the present proceeding and the earlier Nuphlo proceeding constitute the same legal combat so as to preserve privilege

Ratio Decidendi

The Court held that litigation privilege under s56 continued because the earlier Nuphlo proceeding and the present NZH proceeding were part of the same legal combat — involving largely the same parties, issues and purpose — and thus the privilege in communications and information prepared for the dominant purpose of Nuphlo's proceeding subsists; accordingly the defendants' application to declare the privilege ended and compel discovery was declined, subject to review of whether specific documents were properly claimed privileged.

Court Disposition

Application dismissed in part; orders sought by defendants to declare privilege ended and to compel discovery were declined because privilege subsists where proceedings form the same legal combat; court directed review of privilege claims and a conference to determine specific disclosure issues and costs.

Orders

  • Decline to make the orders sought by the defendants that litigation privilege ended on discontinuance and that Nuphlo be ordered to give standard discovery of the asserted documents
  • Case officer to convene a telephone conference with counsel early next week to determine whether defendants will pursue challenges to specific privilege claims and to discuss how those challenges will be addressed