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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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Jurit LLP—Caroline Williams

Jurit LLP—Caroline Williams

Private wealth and tax team welcomes cross-border specialist as consultant

Freeths—Michelle Kirkland Elias

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Flint Bishop—Deborah Niven

Flint Bishop—Deborah Niven

Firm appoints head of intellectual property to drive northern growth

NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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