HT-2022-000043 - [2025] EWHC 540 (TCC)

Against that background, the Claimants apply by notice dated 11 November 2024 for a declaration that the Intertek Audit Report and the Associated Documents do not benefit from without prejudice privilege. The Associated Documents are identified in the draft Order as falling within seven categories, albeit that Ms Hannaford KC, acting on behalf of the Claimants, confirmed during the hearing that these categories could probably be reduced for ease to only three; namely (i) the Defendant’s internal documents concerning his instructions to Intertek and his subsequent consideration of the Intertek Audit Report; (ii) documents evidencing communications/discussions between the Defendant and Intertek; and (iii) documents provided by Boson to Intertek during the audit that are in the possession or control of the Defendant.

In the event, it is common ground that the Application in relation to the Associated Documents (other than those falling within the third category identified above) stands or falls on the outcome of the arguments in relation to the status of the Intertek Audit Report. As for the third category of documents, to which reference was originally made in a letter from GLD dated 25 April 2022, these are all documents created prior to the without prejudice discussions between the parties. They were identified in a Checklist prepared by Intertek and provided to Boson for the purposes of its audit. They include contemporaneous documents such as payroll records, labour contracts and attendance records. During the course of the hearing, I understood Mr Bowsher KC, on behalf of the Defendant, to accept that there is no obvious reason why these documents would be covered by without prejudice privilege. Accordingly, he confirmed that the Defendant would agree to an order that he make reasonable requests of Intertek for access to these documents. Ms Hannaford was content for such an order to be made, with the caveat that the Claimants reserved the right to make an application for disclosure of these documents on the grounds that they are within the Defendant’s possession or control. In the circumstances, I need say nothing further about this third category of Associated Documents.

At the outset of the hearing, the Defendant made a formal application by notice dated 18 February 2025 pursuant to CPR 39.2(3) for the hearing to be in private on the grounds that publicity would defeat the object of the hearing (CPR 39.2(3)(a)), alternatively that there are other reasons which render it necessary to sit in private to secure the proper administration of justice (CPR 39.2(3)(g)). The application notice explained that copies of without prejudice correspondence were in the bundles for the hearing, together with the Intertek Audit Report, none of which should be placed before the Judge at trial.

I was not satisfied, however, that it was “necessary” to sit in private to secure the proper administration of justice. It seemed to me that a less restrictive order, designed to protect the parties’, without prejudice privilege, whilst at the same time acknowledging the public interest in open justice, was a more appropriate means of addressing the Defendant’s concerns. Accordingly, I invited the parties to agree an order under CPR 31.22 which would restrict the use of documents referred to in connection with the Application pending the handing down of this Judgment, at which point the court will review the necessity for such an order in light of the content of the Judgment.