The High Court has ordered F&C Reit Property Asset Management plc to allow Friends First Managed Pension Funds Limited to inspect five internal emails and draft performance fee calculations in their dispute over a claimed fee of more than £5 million.
Ms Justice Murphy made the order on 1 June 2017 after deciding the defendant’s application under Order 31, rule 18 of the Rules of the Superior Courts. She held that the application determined a discrete issue and was a final hearing on that issue, subject to appeal, rather than an interlocutory hearing.
The underlying proceedings concern fees allegedly due under an investment management agreement that began in 2010, although a written agreement was not concluded until July 2012. F&C Reit claims a performance fee exceeding £5 million. In the alternative, it seeks an order calculating the sum due or rectification of the agreement to reflect what it says was the parties’ true agreement.
Friends First sought inspection of three emails sent during negotiations in February and March 2012, two emails from 2013, and draft fee calculations prepared between 4 and 18 September 2013. F&C Reit had claimed legal professional privilege over the emails and litigation privilege over the calculations.
The judge found that the only admissible evidence about Paul Meads’s role in the negotiations came from Friends First’s head of investment, Eugene McGibney. His evidence was that Meads, then F&C Reit’s principal point of contact, negotiated the commercial terms as a principal rather than acting as an independent legal adviser. F&C Reit relied on an affidavit from its solicitor, but the judge ruled it inadmissible because the application was final and the solicitor’s account was hearsay. She said that even if hearsay could have been considered, she would not have exercised discretion to admit it.
The court also found no admissible evidence that the draft calculations were prepared in contemplation of litigation. It considered the 2013 documents consistent with discussions about the fee calculation and noted that litigation was threatened in a letter but did not begin until about 20 months later. The judge concluded that the calculations were mathematical and prepared for discussion, not protected legal advice.
The court held that Friends First had met the requirements for inspection and directed F&C Reit to provide inspection facilities for all documents over which either privilege had been claimed. The order concerned access to the specified documents; it did not decide the underlying fee claim.