In a Judgment delivered on 1 June 2020, Waksman J found Barclays Bank Plc (“Barclays”) to have waived privilege in legal advice given by its internal and external lawyers in respect of agreements entered into in 2008, as part of events which form the basis of a claim in deceit brought against Barclays by PCP Capital Partners LLP and others (“PCP”). The trial of the claim commences today in the Commercial Court, and is one of The Lawyer’s Top 20 Cases for 2020.
PCP’s claim concerns Barclays’ efforts to raise several billion pounds of further capital in October 2008, during the financial crisis. PCP claims that, in the course of negotiations over a proposed investment by PCP, Barclays made a number of fraudulent misrepresentations to it relating to the proposed investment by certain Qatari investors, on which PCP relied and as a result of which it suffered substantial losses.
Barclays’ written evidence and written opening submissions for trial made reference to a number of communications with its lawyers in respect of what were described as “advisory services agreements” entered into between Barclays and one of the Qatari investors in June and October 2008. Privilege had previously been lost in the specific documents referred to, upon their deployment in open court in related criminal proceedings brought by the SFO against former Barclays executives. PCP argued that Barclays’ references to these documents nevertheless triggered a collateral waiver of privilege, and sought disclosure and inspection of all documents which concerned the advisory services agreements and had been withheld on grounds of legal advice privilege.
Waksman J allowed PCP’s application and ordered the disclosure sought, rejecting Barclays’ contention that a collateral waiver could not arise where the specific documents referred to had previously lost their privilege prior to the deployment or reliance said to bring about the waiver. The judgment also contains a useful analysis of the distinction in this context between reliance on the effect of legal advice and reliance on its content, which both courts and practitioners have found elusive in its application.
The trial of the main action commences today, Monday 8th June 2020, and is scheduled to last until the beginning of the Michaelmas term. In a significant development during the Covid-19 crisis, this is understood to be the first major Commercial Court trial to be conducted on a hybrid basis, with the judge and principal advocates present in court, but other members of the parties’ legal teams participating remotely using now-familiar technology.
Joe Smouha QC, James Collins QC and Owen Lloyd act at trial for the Claimants, PCP, together with Robert Weekes at Blackstone Chambers, instructed by Quinn Emanuel Urquhart & Sullivan partners Richard East, Khaled Khatoun and Yasseen Gailani.
James Collins QC, James Sheehan and Owen Lloyd acted for PCP on the privilege application.