Justice Eder granted an application made by the Tchenguiz brothers seeking disclosure of five reports prepared by Grant Thornton as liquidator of Oscatello Investments Ltd. These reports were relied upon by the SFO when obtaining its ill-fated search warrants.
The court considered whether any of the documents attracted litigation privilege (advice privilege not being available to documents prepared by accountants). Given that litigation had not been commenced at the time, the question was whether the dominant purpose of the documents was to provide advice with regards to litigation that was reasonably in prospect. On the facts, the court found that the liquidators could not assert such privilege.
Whilst this decision does not change the law on litigation privilege or the dominant purpose test, it does provide a helpful reminder that the bar to establishing privilege over such documents is a high one and that the courts will look closely not only at the contents but also at the history and circumstances of any documents when determining whether they may attract privilege.
The judgement is available at http://www.bailii.org/ew/cases/EWHC/QB/2013/2297.html.