David Emanuel Merton Mond v Insolvency Practitioners Association
[2023] EWHC 477 (Ch)
BM Brazil 1 Fundo De Investimento EM Participacoes Multistrategia & Ors v Sibanye BM Brazil (Pty) Limited & Anor
15 March 2024
[2024] EWHC 675 (Comm)
High Court
Two companies fought over a deal for a nickel mine. One company said the other broke the deal, and tried to use some notes from a meeting to get secret lawyer emails. The judge said the notes didn't give away enough information to make the lawyer emails public.
Key Facts
- •Claimants (BM Brazil Funds and ANRH Cooperatief) and Defendants (Sibanye Stillwater companies) dispute a share purchase agreement for a Brazilian nickel mine.
- •Defendants terminated the agreement citing a 'geotechnical event' as a material adverse event.
- •A witness statement by Mr. Froneman contains (allegedly) privileged information regarding board discussions and legal advice on the termination.
- •Claimants argued that certain sentences in the witness statement waived legal professional privilege, allowing disclosure of related emails.
- •The dispute centers on two sentences in paragraph 83 of Mr. Froneman's statement: 'The board members were unanimous in their support to terminate the acquisitions under the material adverse effect provision. They understood we should not go through with the transaction.'
Legal Principles
Once a reference is made to a privileged document in court, the entire document must be disclosed for fairness.
Great Atlantic Insurance Co v Home Insurance & Others [1981] 1 WLR 529
A waiver of privilege must be demonstrated before applying the principle in Great Atlantic Insurance; mere reference to legal advice is insufficient; reliance on the advice to support the case is necessary.
PCP Capital Partners LLP & Anr v Barclays Bank Plc [2020] EWHC 1393
Legal professional privilege is a fundamental right, and its waiver must be carefully controlled.
PCP Capital Partners LLP & Anr v Barclays Bank Plc [2020] EWHC 1393
Outcomes
The court ruled that there was no waiver of legal professional privilege.
The two sentences in question did not contain sufficient reference to legal advice, nor did they rely on that advice to support the defendants' case. The statements merely recorded the board's unanimous decision to terminate the agreement.