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21 February 2018
Issue: 7782 / Categories: Features , Litigation trends
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Privilege revisited

Does the decision in Bilta represent a more generous interpretation of litigation privilege? Richard Foss & Hannah Fitzwilliam report

Bilta (UK) Ltd & Ors v Royal Bank of Scotland Plc & Anor [2017] EWHC 3535 (Ch) involved a claim against RBS for alleged fraudulent trading in connection with VAT fraud.

In March 2012, HMRC wrote to RBS stating that they had sufficient grounds to deny RBS’s VAT reclaim in relation to certain carbon credit trades on the basis that RBS ‘knew or ought to have known’ that the trades were connected with fraud. RBS appointed solicitors to conduct an investigation into the circumstances surrounding the trades. This resulted in a report in response to HMRC’s letter that argued, amongst other things, that RBS did not know that the trades were connected with fraud.

The documents created in that investigation included transcripts of 29 interviews with RBS key employees and ex-employees. The claimants sought disclosure of those documents pursuant to CPR Pt 31. RBS resisted disclosure on the basis that the documents were subject to litigation privilege.

The arguments on privilege

In order for RBS to succeed

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MOVERS & SHAKERS

Hogan Lovells—Lisa Quelch

Hogan Lovells—Lisa Quelch

Partner hire strengthens global infrastructure and energy financing practice

Sherrards—Jan Kunstyr

Sherrards—Jan Kunstyr

Legal director bolsters international expertise in dispute resolution team

Muckle LLP—Stacey Brown

Muckle LLP—Stacey Brown

Corporate governance and company law specialist joins the team

NEWS

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HERBERT SMITH STAFF PENSION SCHEME (THE “SCHEME”)

NOTICE TO CREDITORS AND BENEFICIARIES UNDER SECTION 27 OF THE TRUSTEE ACT 1925
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