January 03, 2021 court of first instance - Orders
Claim No: CFI 048/2018
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
SKATTEFORVALTNINGEN (the Danish Customs and Tax Administration)
Claimant
and
(1) ELYSIUM GLOBAL (DUBAI) LIMITED
(2) ELYSIUM PROPERTIES LIMITED
Defendants
ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE
UPON the Court reviewing the following documents in the Court’s file:
a) Defendants’ Application filed on 21 July 2020 (the “Application”);
b) SLR’s 3rd Report dated 26 August 2020;
c) Claimant’s response filed on 27 August 2020;
d) SLR’s 4th Report dated 28 September 2020;
e) Defendants’ response filed on 14 October 2020; and
f) SLR’s 5th Report dated 8 November 2020
IT IS HEREBY ORDERED THAT:
1. The Disputed Documents referred to in Exhibit JD3B are privileged and shall be withheld from inspection by members of the public and the Claimant, save for the following documents:
1.1. DB246_P_Case_019_000690302 (Document List No. 51);
1.2. DB246_P_Case_019_000872214 (Document List No. 61);
1.3. DB246_P_Case_020_000028553 (Document List No. 63); and
1.4. DB246_P_Case_114_000142968 (Document List No. 72).
2. The documents identified in Schedule B of this Order are privileged save for the following documents:
2.1. DB246_P_Case_019_000690302 (Document List No. 51);
2.2. DB246_P_Case_019_000872214 (Document List No. 61);
2.3. DB246_P_Case_020_000028553 (Document List No. 63); and
2.4. DB246_P_Case_114_000142968 (Document List No. 72).
3. The documents identified at paragraphs 1.1 to 1.4 and 2.1 to 2.4 of this Order shall be released to the Claimant within 7 days from the date of this Order.
4. The following documents shall be released to the Claimant once they have been redacted in accordance with the Schedule of Reasons attached to this Order:
4.1. DB246_P_Case_019_000686466 (Document List No. 42);
4.2. DB246_P_Case_098_000002874 (Document List No. 71); and
4.3. DB246_P_Case_147_000256474 (Document List No. 84).
5. Costs in the case.
Issued by:
Nour Hineidi
Registrar
Date of issue: 22 December 2020
Date of re-issue: 3 January 2021
At: 10am
SCHEDULE OF REASONS
1. The claim for privilege has developed in relation to the documents in dispute in JD3B beyond the information given to the SLR when he originally inspected the documents and formed the views that he did. On the basis of what he was told, and the very limited evidence adduced, it is understandable that he took the views that he did.
2. The evidence produced to the Court is not satisfactory in support of the claims for privilege. Apart from the third witness statement of Jonathon Davidson, there is nothing much to help the Court apart from the nature of the documents as they appear and the submissions of the parties thereon. Mr Davidson, whilst helpfully exhibiting JD3A and JD3B had nothing to say about the documents contained in Annexes 3 and 4, as later categorised by the SLR.
3. Nonetheless on the basis of the information now available and the very nature of the documents, combined with the information as to shareholdings or membership of the limited partnership, it is clear that there is a valid claim to common interest privilege as between Solo Capital Ltd, Elysium Global (Dubai) Limited and Solo Capital Partners LLP, behind which it is said stands Mr Sanjay Shah. That would not have been obvious to the SLR without the information supplied in the latest submissions of the Defendant, which can be verified, for the most part by reference to the pleadings of the Plaintiff.
4. With this in mind, my conclusions are:
4.1. Annex 1: All the disputed documents in Annex 1 fall into the category of material which the Kingston Crown Court has ordered should not be used for collateral purposes outside the proceedings in that Court; i.e. Documents 1-20 and 22-37. This covers any duplicates also.
4.2. Annex 2:
4.2.1. Save for the letter of engagement sent to Solo Capital Ltd (and others) to sign (Document no 51), all the disputed documents in Annex 2 fall into the category of requests for advice and advice given by Kaye Scholer who are NY lawyers instructed on behalf of the Defendants or their associated companies or entities, in relation to the structure of the Donaldson/La Rosa WHT Scheme as referred to in the Particulars of Claim.
4.2.2. The letter of engagement does not include advice and I cannot see that the fact of instruction of lawyers and the terms of their engagement can be seen as privileged.
4.2.3. All other disputed documents in the Annex, as set out in the Defendants’ submissions of 28 September are otherwise covered by legal advice privilege and any duplicates.
4.2.4. I make no determination as to any waiver of such privilege because insufficient evidence has been made available to me for that purpose.
4.3. Annex 3: All the disputed documents in Annex 3 are the subject of legal advice privilege, once again subject to any argument of waiver, which I am in no position to determine, without full evidence. These documents (Documents 53,52,67,58,56 and their duplicates) all contain request for advice or advice on Danish tax law from Hannes Snellman, a Danish law firm.
4.4. Annex 4: These documents are not all of the same character and I deal with them individually:
4.4.1. Document 61 relates to a private purchase of US property by Mr Raj Shah and no evidence has been adduced to show that it is privileged in the hands of either of the Defendants or that he claims privilege in relation to these documents, although this is an email chain between Lee & Miao PLLC who are NY lawyers and those acting for him.
4.4.2. Documents 62 and 65 relate to a private purchase of different property by Sanjay Shah, and despite the lack of evidence, I am prepared to treat those corresponding with Lee & Miao PLLC as acting for him, and because of his ultimate ownership of the Defendants. In those circumstance, given his connection to the Defendants as ultimate owner and the existence of common interest privilege, these documents are subject to legal advice privilege, subject to any issue of waiver.
4.4.3. Document 21 is privileged as a communication between a director of the First Defendant and solicitors in relation to work done in relation to submissions to the prosecutor in Denmark. It is subject to litigation privilege.
4.4.4. Document 39 is privileged as setting out, in a Memo between shareholders/ directors of SCP and associated entities, the advice given by US lawyers Schulte, Roth & Zabel about registration with US Commodity Futures Trading Commission. It is covered by legal advice privilege.
4.4.5. Document 40 is a draft or undated letter from Freshfields addressed to Solo Capital Ltd giving a tax analysis relating to a proposed Belgian share investment scheme. Given the common privilege link between Solo Capital Ltd and the Defendants, it is covered by legal advice privilege. The fact that permission was given by the author of the letter to disclose it to the prime broker is nothing to the point.
4.4.6. Document 42 is said to constitute a “discussion of legal advice provided from a number of advisors, including Loyens, subject to the outcome of a pending Dutch case”. It is only the last 3 paragraphs which contain such advice, however, and in those circumstances, the only part of the email which is privileged as containing legal advice is the section following the words “Another alternative is to use an EU investment fund……”. The succeeding words should be redacted with the explanation “[this has been redacted as summarising legal advice]”.
4.4.7. Document 63: Although the document is expressly marked “Legally privileged” and has the appearance of a document prepared with a view to seeking legal advice, no evidence has been adduced that this was its purpose and the claim for privilege is consequently rejected.
4.4.8. Document 71: Once again the absence of any evidence from the Defendants about this document means that it cannot be said to be privileged on the basis that it was prepared in order to put before lawyers for legal advice. It is an internal memorandum discussing what advice might be taken in the future and refers to GP, as the compliance officer.
4.4.8.1. There are parts of the memo which summarise legal advice already given and those parts are privileged and should be redacted with the same explanation as set out in paragraph 4.4.6 above.
4.4.8.2. Those passages are: the 6th full paragraph on page 2 beginning “We have been advised that…”; the 1st sentence of the 1st full paragraph on page 3 beginning “we are advised that…”; the 3rd paragraph on page 3 beginning “We are advised that…”; and the first two paragraphs under the heading “What action has been taken so far?” on page 4.
4.4.9. Document 72: no longer claimed as privileged.
4.4.10. Document 84: This is a near duplicate of Document 71 and the same principles apply so that the same passages should be deleted as privileged with the appropriate explanation.
4.4.11. Document 85: This is covered by legal advice privilege being the advice of Caroline Dawson of Clifford Chance to SCP. That characterisation is not negated, nor is there any waiver of privilege by it being sent to the private email address of its future CEO, who was legally qualified.
5. It is self-evident that duplicates fall into the same category as those on which I have reached a decision. For the avoidance of doubt, I stress that I have not made any decisions about waiver of privilege at all.
6. There has been much delay in bringing this matter on, not all of the parties making, but some is attributable to changes in representation of the Defendants and the inadequacy of the claims for privilege when first made is apparent when they are examined.
7. In these circumstances, the right order for costs, although the Defendants have largely succeeded in making good the claims for privilege, is Defendants’ costs in the case-i.e., they are entitled to their costs if they win the action.
SCHEDULE B
PRIVILEGED DOCUMENTS
No. | Relativity Reference |
---|---|
1. | DB246_P_Case_001_000021648 |
2. | DB246_P_Case_001_000021652 |
3. | DB246_P_Case_001_000021658 |
4. | DB246_P_Case_001_000021660 |
5. | DB246_P_Case_001_000021664 |
6. | DB246_P_Case_001_000021668 |
7. | DB246_P_Case_001_000021676 |
8. | DB246_P_Case_001_000021678 |
9. | DB246_P_Case_001_000021682 |
10. | DB246_P_Case_001_000021684 |
11. | DB246_P_Case_001_000021686 |
12. | DB246_P_Case_001_000021688 |
13. | DB246_P_Case_001_000036925 |
14. | DB246_P_Case_001_000036941 |
15. | DB246_P_Case_001_000036942 |
16. | DB246_P_Case_001_000036944 |
17. | DB246_P_Case_001_000036945 |
18. | DB246_P_Case_001_000036946 |
19. | DB246_P_Case_001_000037814 |
20. | DB246_P_Case_001_000037815 |
21. | DB246_P_Case_001_000038011 |
22. | DB246_P_Case_001_000038652 |
23. | DB246_P_Case_001_000038654 |
24. | DB246_P_Case_009_000000328 |
25. | DB246_P_Case_009_000000330 |
26. | DB246_P_Case_009_000000332 |
27. | DB246_P_Case_009_000000334 |
28. | DB246_P_Case_009_000000336 |
29. | DB246_P_Case_009_000000338 |
30. | DB246_P_Case_009_000000341 |
31. | DB246_P_Case_009_000000342 |
32. | DB246_P_Case_009_000000345 |
33. | DB246_P_Case_009_000000346 |
34. | DB246_P_Case_009_000000347 |
35. | DB246_P_Case_014_000000453 |
36. | DB246_P_Case_014_000001080 |
37. | DB246_P_Case_016_000252200 |
38. | DB246_P_Case_016_000253851 |
39. | DB246_P_Case_019_000621461 |
40. | DB246_P_Case_019_000649076 |
41. | DB246_P_Case_019_000649078 |
42. | DB246_P_Case_019_000689738 |
43. | DB246_P_Case_019_000689739 |
44. | DB246_P_Case_019_000689828 |
45. | DB246_P_Case_019_000689895 |
46. | DB246_P_Case_019_000689938 |
47. | DB246_P_Case_019_000690034 |
48. | DB246_P_Case_019_000690040 |
49. | DB246_P_Case_019_000690110 |
50. | DB246_P_Case_019_000694948 |
51. | DB246_P_Case_019_000694949 |
52. | DB246_P_Case_019_000694950 |
53. | DB246_P_Case_019_000694951 |
54. | DB246_P_Case_019_000695104 |
55. | DB246_P_Case_019_000695105 |
56. | DB246_P_Case_019_000695116 |
57. | DB246_P_Case_019_000695117 |
58. | DB246_P_Case_019_000792378 |
59. | DB246_P_Case_019_000921233 |
60. | DB246_P_Case_059_000014976 |
61. | DB246_P_Case_059_000031292 |
62. | DB246_P_Case_095_000013081 |
63. | DB246_P_Case_095_000070563 |
64. | DB246_P_Case_095_000070564 |
65. | DB246_P_Case_095_000070568 |
66. | DB246_P_Case_095_000070569 |
67. | DB246_P_Case_115_000287865 |
68. | DB246_P_Case_116_000184395 |
69. | DB246_P_Case_116_000184396 |
70. | DB246_P_Case_116_000201746 |
71. | DB246_P_Case_116_000203984 |
72. | DB246_P_Case_116_000205807 |
73. | DB246_P_Case_116_000208418 |
74. | DB246_P_Case_116_000215551 |
75. | DB246_P_Case_116_000217677 |
76. | DB246_P_Case_116_001404601 |
77. | DB246_P_Case_116_001404602 |
78. | DB246_P_Case_147_000256474 |
79. | DB246_P_Case_147_000256475 |