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What is the evidential status of the illicit information?
What is the evidential status of the illicit information?
The claimants launched a full-scale attack upon the confidentiality of any of the illicit information, as well as its privileged status including by reference to the iniquity principle. I have addressed some arguments at paragraph 65 above.
In the time allotted for this hearing, however, it has not been possible for me to undertake the granular task of ascertaining the answer to the bulk of this multi-layered inquiry. As to this task:
The material is substantial: see paragraph 26 above.
It necessitates a ‘topic by topic’ analysis of the meeting transcripts, assessed in the context of the illicit information as a whole, in order to ascertain if the iniquity principle is engaged: see paragraph 49 above.
The same approach may be required to understand whether any distinct piece of information is derived from or based upon matters in the public domain and what the appropriate nexus is in this context, including by reference to the prior or intervening manifestation of any litigation or settlement strategy revealed by X.
I estimate that to be a 2-3 day hearing with appropriate pre-reading by the allocated judge. For ease of reference I refer to such further hearing as the “Information Review Hearing”.
This exercise could not have been undertaken as part of the present hearing. The estimate of 2.5 days was inadequate for such purposes.
- Heading
- Stephen Houseman KC
- Relevant Background
- Legal Framework
- Analysis
- Does the claimants’ unethical behaviour involve or constitute an abuse of process?
- What is the evidential status of the illicit information?
- Is the claimants’ possession of illicit knowledge likely to obstruct the just disposal of these proceedings or otherwise create a substantial risk to a fair trial?
- What is the appropriate and proportionate response of the Court to the claimants’ abuse of its process?
- Are the claimants entitled to pursue their summary judgment application and, if so, should they be granted summary judgment or a conditional order?
- Conclusions