The High Court has directed a hearing on whether Thema International Fund plc can rely on privilege over legal advice against HSBC Institutional Trust Services (Ireland) and three other parties in connected litigation.
In a judgment delivered on 17 October 2011, Mr Justice Clarke said the question was whether privilege that might ordinarily attach to legal advice given to Thema could be relied on against UBI Banca, Kalix, HSBC Institutional Trust Services (Ireland), and Thema Asset Management Limited.
The application arose because HSBC, which had performed administrative roles for Thema, held documents that appeared to include legal advice given to the fund. The judgment said the parties did not appear to dispute that such documents were at least prima facie privileged, subject to any question about whether particular material was legal assistance rather than legal advice. Thema sought an order requiring HSBC to claim privilege for such documents in discovery. HSBC opposed the application.
HSBC advanced three propositions. It argued that a company could not rely on privilege against its own shareholders for legal advice prepared in the ordinary course of business; that Thema’s disclosure of documents to HSBC meant Thema could not prevent HSBC relying on them, even if that disclosure did not waive privilege more generally; and that Thema Asset Management could not realistically be excluded from documents that might be used in the interconnected proceedings. Those were HSBC’s arguments, not findings by the court.
The judge said that if HSBC’s propositions were correct, an order requiring it to claim privilege would serve no practical purpose. He also said deciding the issues required the involvement of Kalix, UBI Banca and Thema Asset Management, whose interests were affected.
The court directed a hearing on the status of the documents for privilege purposes, to be arranged with counsel. It did not resolve the three propositions, determine whether privilege could ultimately be claimed, or grant Thema’s requested order. Pending that hearing, the parties were asked to consider a regime to prevent potentially covered documents from being disclosed through a rolling discovery process. The judge said he would hear further submissions on that question.