This decision reconfirms the extent (and limitations) of legal professional privilege (and presumably also litigation privilege, although this is not expressly referred to in the decision). It can only apply to instructions to and correspondence with counsel and experts, notes arising from meetings or discussions with counsel and experts and underlying documents where the advice trend is clear.

In Vivian Imerman v (1)Robert Tchenguiz and others2, the claimant applied for an order to ensure compliance by the defendants with an order for delivery up of documents in their possession.

The claimant had obtained summary judgment against the defendants prohibiting them from using and copying confidential material in their possession. The parties then agreed that the defendants would deliver up all hard copy documents containing such material. The defendants failed to deliver up any documents. One reason given was that some of the documents were protected by legal professional privilege because they formed part of the papers accompanying counsel’s instructions (which had now been returned to the defendants’ solicitors by counsel) and had been annotated by counsel.

The court held that the doctrine of legal professional privilege did not extend to hard copy papers returned by counsel merely on the ground that they had formed part of counsel’s instructions. Further, the underlining or highlighting of documents did not, of itself, give rise to legal professional privilege and the appropriate test was whether or not the annotations would give another party an idea of the trend of the advice – in this case, no such trend was ascertainable from counsel’s markings. The court also considered (and dismissed) an argument that the absence of an annotation from some pages might reveal that these papers were considered not relevant by counsel and, therefore, reveal a trend in the advice.