Matthews v Voisin and Company, Ernst and Young LLP and Jasper (Née Cooke)

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Hamon, Commr. and Jurats Bullen and Allo
• Judgment Date: 23 October 2001
• Neutral Citation: [2001] J.Unrep 209
• Date: 23 October 2001

ROYAL COURT

Hamon, Commr. and Jurats Bullen and Allo

M. St. J. O'Connell for the plaintiff;

J.D. Kelleher for the first defendant;

Miss J.C. Martin for the third defendant.

Cases cited:

(1) Ablitt v. Mills & Reeve, [1995] T.L.R. 535, distinguished.

(2) Advocate, In re an, 1978 J.J. 193, considered.

(3) English & American Ins. Co. Ltd. v. Herbert Smith, [1988] F.S.R. 232, considered.

(4) Guinness Peat Properties v. Fitzroy Robinson Partnership, [1987] 1 W.L.R. 1027; [1987] 2 All E.R. 716, considered.

(5) Les Pas Holdings Ltd. v. Receiver Gen., 1995 JLR 163, distinguished.

(6) Ridehalgh v. Horsefield, [1994] Ch. 205; [1994] 3 All E.R. 848, considered.

Additional cases cited by counsel:

Derby & Co. Ltd. v. Weldon (No. 8), [1991] 1 W.L.R. 73; [1990] 3 All E.R. 762.

Mayger v. Mayger, 1991 JLR N-1.

Pizzey v. Ford Motor Co. Ltd., [1994] P.I.Q.R. P15.

Advocates—professional privilege—privileged communications—privi-leged documents sent to other side in error—advocate to inform opponent of proposed use of documents—if opponent objects to proposed use, matter to be referred to court and all further action on documents frozen

Advocates—professional privilege—waiver—no waiver if documents disclosed in error in course of divorce action since no formal disclosure procedure—no automatic right to withhold and use privileged documents if no waiver—court may grant injunction preventing further use or communication

Advocates—professional privilege—privileged communications—receiving privileged documents in error not to preclude advocate's acting if would cause unjustifiable cost and inconvenience to client

The plaintiff sought the recovery of privileged documents, an injunction preventing the use or communication of material contained in the documents and an injunction preventing the first and second defendants from continuing to act for the third defendant.

The plaintiff and the third defendant were involved in divorce proceedings and other litigation. The plaintiff's advocates mistakenly disclosed privileged documents to the first defendant, the third defendant's advocates. The first defendant, without reading the documents, passed them to the second and third defendants, who read them. On learning that they were privileged, the first defendant informed the plaintiff's advocates that the documents had come into their possession and that it intended to use them in the proceedings, but received no reply. When the plaintiff was informed of the mistake, he instructed new advocates, who contacted the first defendant explaining that they did not agree with its proposed course of action. The first defendant froze all further action on the privileged documents.

The plaintiff submitted that (a) the first defendant should have sealed the documents, procured the immediate return of all copies from the second and third defendants and returned them to him; (b) to remedy that defect, an injunction should be granted preventing the use or communication of material contained in the documents; (c) as the documents had not been disclosed under a formalized disclosure procedure or discovery, there was no question of privilege being formally waived; and (d) the first and second defendants should cease acting for the third defendant as (i) they had knowledge of the confidential communications between himself and his legal advisers, and (ii) on authority, the principle that justice should be seen to be done outweighed the right of a litigant to choose his or her own advocate.

The defendants submitted in reply that (a) they had acted in accordance with the Code of Conduct for Jersey advocates and the guidance of the Court of Appeal; (b) the plaintiff's advocates had mistakenly disclosed a document for which they could have claimed privilege but, as they did not do so until after the document had been inspected, it was too late to attempt to correct the mistake by applying for injunctive relief; and (c) it would be of no benefit to the plaintiff for the first and second defendants to stop acting for the third defendant as the third defendant had herself read the documents.

Held, granting the injunction in part:

(1) The first defendant had acted in accordance with the Code of Conduct of the Law Society of Jersey and the guidelines of the Court of Appeal which stated that (a) if an advocate intended to use documents which would otherwise be privileged, but which came by some unusual means into his possession, he must inform his opponent; and (b) in the event of that opponent's objection to the use of the document, the matter should be referred to the court. Furthermore, the first defendants acted correctly in that, when the plaintiff's new legal representatives objected to the proposed course of action, they froze all further action on the privileged documents ( para. 22).

(2) As there was no formal procedure for disclosing documents under the Matrimonial Causes (General) (Jersey) Rules 1979, as amended, the documents in this case had not been disclosed in such a manner as to raise the question of privilege being waived and the defendants therefore had no automatic right to withhold and use the documents. It was for the court to determine what use, if any, was to be made of them, and it was therefore not too late to grant injunctive relief to the plaintiff. Although the defendants had acted in accordance with the guidelines, the recovery of the documents and the injunction sought by the plaintiff preventing the use or communication of material contained in them would be granted ( paras. 21-22).

(3) There would be little or no benefit to the plaintiff in preventing the first and second defendants from continuing to act for the third defendant as she had read the privileged documents herself and knew what they contained. The first and second defendants could therefore continue to act for the third defendant as the cost and inconvenience which would be caused to her by such an order would be unjustifiable ( para. 23; para. 26).

1 HAMON, COMMR.: The Honourable Ian Victor Matthews is the son of the late Lord Matthews. Mr. Matthews married Helena Jasper on March 8th, 1986. They had three children. They were divorced on January 5th, 2001. We have chronicled elsewhere the two extraordinary events that occurred during the divorce proceedings. Both of these were due to failings by lawyers. We now have a third extraordinary event that arises in the course of...