Background
Facts

First instance decision
Court of Appeal decision
Comment


The much-publicised litigation involving Russian magnates Boris Berezovsky and Roman Abramovich has shed light on the extent to which it is possible to retain privilege over, or otherwise restrict the use of, documents that have been disclosed to third parties. The Court of Appeal's decision on the point is a reminder of the need to take care when making privileged documents available to others.(1)

Background

The concept of partial or limited waiver of privilege is well established. It does not follow that because a privileged document has been disclosed for a limited purpose, privilege is waived generally. It is accepted that:

"[i]t must often be in the interests of the administration of justice that a partial or limited waiver of privilege should be made by a party who would not contemplate anything which might cause privilege to be lost, and it would be most undesirable if the law could not accommodate it."(2)

Whether the waiver is limited and, if so, what the parameters of the limitation might be, will be determined by reference to all of the circumstances of the alleged waiver. This includes the issue of what was expressly or implicitly communicated between the person sending and the person receiving the documents in question, and what the recipient must have understood, or ought reasonably to have been taken to have understood.

Facts

Abramovich proceedings
Mr Berezovsky and Mr Patarkatsishvili were staunch allies for many years. Both built up substantial investments in Russia towards the end of the 20th century and subsequently fled to the United Kingdom as a result of alleged threats of political persecution.

In 2007 Berezovsky began proceedings against Mr Abramovich relating, in part, to an alleged interest in Rusal, a Russian aluminium company. Patarkatsishvili was to serve as a witness in the proceedings in respect of which law firm Cadwalader, Wickersham and Taft was, at the relevant time, acting for Berezovsky.

Another law firm, Gherson, was instructed by Berezovsky in relation to tax and asylum issues. The firm was also acting for Patarkatsishvili in relation to his asylum claim.

In January 2008 Cadwalader, Wickersham and Taft sent copies of draft witness statements prepared for Berezovsky and Patarkatsishvili in the Abramovich proceedings to Berezovsky's solicitors at Gherson. The draft statements were sent as attachments to an email headed "Berezovsky witness statements: Privileged and Confidential".

A week later, one of the solicitors forwarded the email to three other solicitors at Gherson who were acting for Patarkatsishvili. This email was forwarded, a couple of days later, to a fourth solicitor at Gherson who also acting for Patarkatsishvili.

Patarkatsishvili proceedings
In February 2008 Patarkatsishvili died. Following his death, Berezovsky brought claims against Patarkatsishvili's surviving family and others who, he claims, hold assets in which he has an interest. The claim is primarily based on an alleged oral agreement made between Patarkatsishvili and Berezovsky in Russia in 1995, whereby all commercial investments made by either of them would be shared between them equally. Alternatively, Berezovsky asserts interests arising from a number of individual agreements, including an agreement that is said to have been made at the Dorchester Hotel in London in March 2000 in respect of the acquisition of a 25% interest in Rusal.

Overlapping issues
A number of issues arising in the Abramovich proceedings and the Patarkatsishvili proceedings overlap - in particular, the issue of whether Abramovich agreed to hold an interest in trust for Berezovsky as a result of what was said at the Dorchester Hotel.

It was ordered that the overlapping issues be tried in the Abramovich proceedings and be treated as preliminary issues in the context of the other actions. The order provided that documents disclosed in the other actions which are relevant to the overlap issues be disclosed in the Abramovich proceedings.

Question for the court
The question arose as to whether, in the trial of the overlapping issues, Patarkatsishvili's family could use the draft witness statements prepared in the Abramovich proceedings and provided by Berezovsky's lawyers in January 2008.

First instance decision

The first instance judge found that Berezovsky's lawyers had had a twofold purpose in disclosing the draft statements. They had intended to:

  • assist Patarkatsishvili in his asylum application; and
  • avoid inconsistency between what might be said in Patarkatsishvili's asylum application and what might be said in the proceedings against Abramovich.

The judge held that although Patarkatsishvili "was not free to make whatever use of the documents he wanted", the circumstances in which the draft statements were transmitted to Patarkatsishvili's lawyers were not such as to preserve Berezovsky's privilege to the extent of enabling him to prevent the draft statements from being deployed by Patarkatsishvili (or his successors) to defend proceedings brought against him by Berezovsky.

The judge considered it inappropriate to imply such a condition in circumstances where:

  • there was no express limitation on the use of the draft statements;
  • the parties had been on friendly terms at the time; and
  • the remitting of the draft statements had been partly for Berezovsky's benefit.

Court of Appeal decision

The Court of Appeal disagreed. In reaching its conclusion, it took account of the following:

  • The sensitivity of the draft witness statements must have been obvious to both parties. The Abramovich litigation is hard fought and Patarkatsishvili's lawyers would have appreciated that Berezovsky's lawyers would have been anxious to minimise the risk of the contents of the draft statements being disseminated.
  • The fact that the limited extent of any waiver was not explicitly stated cannot have been an indication that Berezovsky was at all relaxed about the use of the draft statements. Rather, it reflected the longstanding, close and supportive relationship between the two men, and the fact that Berezovsky would have expected Patarkatsishvili to have been sympathetic to any form of confidentiality that Berezovsky wished to maintain.
  • Patarkatsishvili, through his solicitors, must have appreciated that any intended waiver of privilege must have been intended to have been very limited, given that Berezovsky's solicitor at Gherson (who made the disclosure) was not involved in the Abramovich litigation and had a duty to protect Berezovsky's interests.
  • The fact that the emails were headed "Privileged and Confidential" was significant.
  • Patarkatsishvili was the principal beneficiary of the documents. The provision of the draft statements gave Berezovsky no control over the content of any evidence given in the Abramovich proceedings. Rather, the main benefit arising from the disclosure was to Patarkatsishvili's asylum application.
  • It was clear that any waiver of privilege was not absolute. Therefore, the court found it difficult to see how precise limits could be drawn, other than effectively to limit the use of the documents to the purposes for which they had been disclosed.
  • Finally, the court considered it inconceivable that the parties, at the time, could have envisaged that the draft statements could be deployed by Patarkatsishvili in proceedings to which Abramovich was a party. These were the very proceedings on which the privilege was based and for which it was particularly essential.

Accordingly, the court held that the draft statements had been provided on the basis that their use for any purpose (other than the two purposes identified by the judge at first instance) was prohibited, unless it was a purpose to which Berezovsky assented.(3)

Comment

Although the judgment is clearly dependent on the facts, it is a useful illustration of the way in which the courts will approach questions of a limited waiver of privilege. The decision is also a reminder of the significant risks involved in disclosing privileged information to third parties, including in circumstances in which the disclosure appears at the time to be entirely benign. Twists, turns and unforeseen consequences can cause a seemingly risk-free disclosure to undermine critically important privilege. Disclosures of privileged material should therefore always be made with clear and express limitations on the use to which that material can be put. Otherwise, attempts to close the door on the stable of privilege may come after the evidential horse has bolted.

For further information on this topic please contact Matthew Dando at RPC by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (matthew.dando@rpc.co.uk).

Endnotes

(1) Berezovsky v Hine [2011] EWCA Civ 1089.

(2) Lord Millett giving the judgment of the Privy Council in B v Auckland District Law Society [2003] UKPC 38, Paragraph 68.

(3) It was accepted that, arguably, the draft statements might additionally be used for a purposes to which Berezovsky objected, but which could not damage him in any way; or a purpose which could damage him, but which would not involve the contents of the draft statements being revealed to anyone other than Berezovsky and Patarkatsishvili's successors and their advisers. However, it was not necessary to decide the point.

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