The Court of Appeal allowed BMO REP Asset Management plc’s appeal over a High Court order granting Friends First Managed Pension Funds Limited access to documents over which BMO had claimed privilege. The court held that the documents at issue were protected by legal professional privilege, including correspondence from 5 to 19 September 2013. It did not need to decide whether litigation privilege also applied during that period.
The underlying proceedings concern BMO’s claim for a £5,243,325 performance fee under a management agreement relating to the Orion Fund. Friends First contended on 30 August 2013 that no performance fee was payable. The High Court had ordered inspection of certain documents identified in a notice to produce, after excluding hearsay evidence from BMO solicitor Derek Hegarty about the role of BMO general counsel Paul Meads.
On appeal, the court treated the High Court’s privilege ruling as a final decision on a discrete issue, even though the substantive proceedings continued. That meant further evidence ordinarily required special leave. The court nevertheless exercised its discretion to admit Meads’s affidavit, finding that the balance of justice and proper case management favoured deciding the privilege issue on the fuller evidence rather than sending it back to the High Court. It noted that excluding Hegarty’s affidavit had left BMO without evidence on its privilege claim and that the respondent was not prejudiced by Meads’s account.
Meads said he was BMO’s general counsel from September 2008 to January 2017, was not a company executive or business partner, and had not negotiated the agreement’s commercial terms. He said he drafted the agreement to give legal effect to terms already agreed. The Court of Appeal was satisfied that he had acted as BMO’s legal adviser and that legal professional privilege was properly claimed.
The court observed that the respondent’s position on 30 August—that no fee was payable—made litigation almost inevitable, and that BMO’s prompt engagement of external lawyers supported its account. However, because the correspondence involved Meads acting as legal adviser, the court found it unnecessary to decide the separate litigation privilege question. Its ruling allowed the appeal and upheld the legal professional privilege claim over all documents in issue in the appeal. It did not determine whether BMO was entitled to the performance fee.