The UK Court of Appeal recently confirmed that lawyers
(Decherts) could no longer act for a company
(Avonwick). Our views on the first instance
decision can be found
The high court had decided that a bankrupt's right to
privilege does not automatically vest in the trustee in bankruptcy
under the Insolvency Act 1986 (IA). The court
granted an injunction in order to protect Mr Shlosberg (a
bankrupt)'s right to privilege in circumstances where Dechert,
solicitors for both Avonwick and Mr Shlosberg's trustee in
bankruptcy, had reviewed privileged documents as part of ongoing
proceedings involving Avonwick (as claimant) and Mr Shlosberg (as
Avonwick appealed, on the basis that a bankrupt's right to
privilege falls within the definition of 'property' which
automatically vests in a trustee on bankruptcy under the IA; or,
that by necessary implication of those provisions, a trustee is
nevertheless entitled to use a bankrupt's privileged documents
in exercising his statutory functions.
The Court of Appeal dismissed the appeal
It was held that the statutory function of a trustee under the
IA to 'get in, realise and distribute the bankrupt's
estate' does not extend to deploying a bankrupt's
privileged documents in order to assist a third party with
prosecuting its claim
That is the case even though using the privileged material
would reduce the value of a creditor's claim on the
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Witnesses can, in various circumstances, be subpoenaed by the Courts of overseas jurisdictions to attend to give evidence by way of depositions within that jurisdiction. So why not take that one step further and ask a foreign court to subpoena the witness to give evidence by live satellite video link to a Court in London? This would be the next best thing to having the witness present in Court. Indeed, the Commercial Court is increasingly amenable to evidence being given in this way (albeit on a
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