EMW Law LLP v Halborg

This is an appeal by the defendant, Mr Scott Halborg, against an order for disclosure that Master Clark made in favour of the claimant, EMW Law LLP (“EMW”), on 28 October 2016. Among other things, the appeal raises issues as to the applicability of the without prejudice rule.

Mr Halborg is a solicitor. Until 14 March 2013, he was a sole practitioner practising under the name “Halborg & Co”. Since then, he has practised through a limited liability partnership now known as “Deals & Disputes Solicitors LLP”.

During the period he was practising on his own account, Mr Halborg was instructed to act for his parents and a family company, Halborg Limited, in a claim against some architects referred to as “Savage Hayward”. On 19 December 2008, Mr Halborg and his clients (“the Halborg Claimants”) entered into a conditional fee agreement (“the Client CFA”) in respect of the claim. By March of the following year, Mr Halborg had decided to engage EMW to assist him with it.

On 24 March 2009, EMW sent Mr Halborg a letter “to formally set out the terms of [their] engagement”. The letter referred both to a document headed “The Small Print” containing terms of engagement and to a conditional fee agreement (“the Agency CFA”) which was described as a binding legal contract between Mr Halborg and EMW and was signed by or on behalf of those parties. The Agency CFA said the following under the heading “Paying us”:

Although named in the Agency CFA, the Halborg Claimants were not, it seems clear, true parties to it. On the other hand, they were evidently aware of Mr Halborg’s use of EMW. In witness statements of 10 August 2016, Mr Halborg’s parents each explained that they “agreed to ‘Halborg & Co. Solicitors’ using the subcontracting services of a third party, [EMW], on a purely conditional basis, as set out in a Conditional Fee Agreement to which we were not parties ….”

On 15 September 2009, the Halborg Claimants issued proceedings against Savage Hayward. On 19 July 2010, Savage Hayward made a Part 36 offer of £350,000, and the offer was accepted by the Halborg Claimants on 6 August 2010. As a result, Savage Hayward became liable to pay the Halborg Claimants’ costs of the claim they had brought.

EMW had worked on the case between 7 April 2009 and 6 August 2010. According to EMW, it spent a total of 179.8 hours on the matter, as a result of which it stood to become entitled to £53,940 plus a success fee of 95% and VAT.

Mr Halborg entered into negotiations about costs with Savage Hayward’s solicitors, Berrymans Lace Mawer (“BLM”). A bill of costs was prepared and served on BLM. This sought a total of £1,357,714.39, £123,590 of which was accounted for by a claim for EMW’s “agency charges”.

BLM served points of dispute on 16 September 2011. These included the following:

Under the heading “Proportionality, conduct/ liability costs & costs estimate”:

Under the heading “Hourly Rate”:

Under the heading “Solicitor Agent”:

Not having been paid anything for their work, EMW said the following in a letter to BLM of 21 November 2011:

On 22 October 2013, having still not recovered any payment from anybody, EMW issued proceedings in the Senior Courts Costs Office to which the defendants came to be the Halborg Claimants and Mr Halborg. The proceedings were brought under CPR Part 67 and sought an assessment of costs under section 70 of the Solicitors Act 1974. On 24 October 2014, Master Campbell struck the proceedings out as against the Halborg Claimants, taking the view that there was no solicitor/client relationship between them and EMW. In contrast, Master Campbell declined to grant summary judgment in favour of Mr Halborg and, on appeal, Judge Purle QC, sitting as a Judge of the High Court, concluded that Master Campbell had been “right (or at least entitled) not to” strike out the claim as against Mr Halborg (see EMW Law LLP v Halborg [2015] EWHC 2005 (Ch), [2015] 4 Costs LO 427, at paragraph 10). Mr Halborg has appealed to the Court of Appeal against a finding by Master Campbell, on 24 November 2014, that EMW is not a litigant in person for the purposes of CPR 46.5.

The present proceedings were issued on 16 September 2014. They seek damages for breach of contract. More specifically, EMW alleges that Mr Halborg has breached various terms which, it says, were implied in the Agency CFA and that it has failed to recover its fees in consequence. In his defence, Mr Halborg states, among other things, as follows:

In an email of 16 September 2014, EMW told Mr Halborg that it was instructing him “to pursue the costs of the parts of the bill involving EMW, and to send all [BLM’s] responses to [it] to instruct [him] on how [it wished] to proceed”. In a further email of 29 October 2014, EMW said:

On 18 December 2014, Mr Halborg’s limited liability partnership, which is now called “Deals & Disputes Solicitors LLP”, sent BLM a letter in which it said:

When Mr Halborg came to give disclosure in these proceedings, he withheld various categories of documents on the basis that they were irrelevant and/or privileged. EMW, however, made an application for specific disclosure which for the most part succeeded before Master Clark. On 28 October 2016, Master Clark ordered Mr Halborg to disclose the following classes of documents:

In a written judgment, Master Clark explained why she considered that (i) the classes of documents in respect of which she was ordering disclosure were relevant and (ii) Mr Halborg was not entitled to withhold them as within the scope of the without prejudice rule (as regards the Class A Documents) or on the basis of legal professional privilege (as regards the Class C and D Documents).

So far as the application of the without prejudice rule is concerned, the Master:

was persuaded by an analogy that counsel for EMW drew with common interest privilege. The Master said (at paragraph 47 of the judgment):

considered that the documents were disclosable because there is a dispute as to whether without prejudice communications have resulted in a settlement. The Master said (at paragraph 48 of the judgment):

considered that the principle in Muller v Linsley & Mortimer [1996] 1 PNLR 74 applied to render other relevant without prejudice material disclosable (see paragraph 49 of the judgment). The Master said (in paragraph 58 of the judgment):

In contrast, the Master was unpersuaded by two of the arguments that EMW had put forward:

With regard to a submission to the effect that “in law the claimant and defendant are treated as one person, with the solicitor having no separate legal personality” (see paragraph 43 of the judgment), the Master said (in paragraph 44):

As for a contention that EMW was “entitled to the documents by reason of an implied term in the agency CFA that he was to be kept informed of negotiations with [BLM] and entitled to see any correspondence passing between [BLM] in real time”, the Master said (in paragraph 45 of the judgment):

Mr Halborg now appeals against the Master’s decision. The issues that arise from the appeal and a Respondent’s Notice served by EMW can, I think, be conveniently considered under the following headings:

Relevance;

The without prejudice rule;

Legal professional privilege; and

Other matters.

Before, however, addressing the issues raised by the appeal and Respondent’s Notice, I should say something about the position of a solicitor-agent such as EMW was. In this connection, I was taken to In re Pomeroy & Tanner [1897] 1 Ch 284 and Sharratt v London Central Bus Co Ltd [2005] EWHC 3018 (QB), [2006] 4 Costs LR 584. These cases show that, where a solicitor uses a solicitor-agent, the solicitor-agent’s work is treated as the solicitor’s work and charges for it must be included in the solicitor’s own bill. In the Pomeroy & Tanner case, where Bristol solicitors had employed a London agent, Stirling J said (at 287):

The amended particulars of claim include this:

It was submitted to the Master on behalf of Mr Halborg that, since EMW alleges that he “settled the costs of the Substantive Claim” “[o]n or around the end of November 2011”, no later correspondence could be relevant. Mr Halborg maintained that the allegations of breach of implied terms are all premised on the proposition that a settlement occurred in November 2011 and that the amended particulars of claim do not contain any complaints about Mr Halborg’s subsequent conduct.

The Master did not agree. She said the following in the judgment:

Before me, Mr Halborg, through Mr Robert Marven, who appears for him, once again contended that paragraph 23 of the amended particulars of claim has to be read as meaning that the alleged settlement in November 2011, or possibly events surrounding the alleged settlement, constituted the alleged breach of the implied terms. To my mind, however, the Master’s reasoning is convincing. I have not, therefore, been persuaded that the Class A Documents are not relevant.

The Master also considered the Class B Documents to be relevant. She said in paragraph 60 of the judgment:

Mr Marven once again disputed relevance, but I see no reason to differ from the Master on the point. As I see it, information as to what, if any, payments on account have been made might well bolster or impair the respective parties’ cases.

Since Mr Halborg does not challenge the Master’s order in respect of the Class B Documents on any other ground, the appeal must fail in so far as it concerns those documents. Of themselves, however, the Class B Documents are unlikely to reveal fully (if at all) what any payments were made in respect of or how they came to be made on that basis.

With regard to the Class C Documents, the Master said this in paragraph 62 of the judgment:

Challenging the Master’s view, Mr Marven submitted that she was mistaken in thinking that Mr Halborg’s pleaded case puts in issue alleged failings in EMW’s work. The issue, he said, is the amount which is recovered inter partes, and that can only be ascertained at an inter partes assessment.

To my mind, however, the Master was justified in taking the view she did. Relevance falls to be determined by reference to the pleadings. Here, since the defence expressly makes no admissions as to the extent of the work carried out by EMW and denies that EMW “worked always to, or in accordance with, [Mr Halborg’s] instructions”, the Class C Documents are relevant to pleaded issues.

As for the Class D Documents, the Master said this in paragraph 63 of the judgment:

Mr Marven criticised the Master’s conclusion on the basis that the costs draftsman’s perspective on the views of EMW and/or Mr Halborg are not relevant to any of the issues pleaded. In my view, Mr Marven is right about this. I do not think that the costs draftsman’s views can matter.

As mentioned above, the Master rejected a submission that Mr Halborg could withhold the Class A Documents on the strength of the without prejudice rule. Mr Halborg maintains that the Master was mistaken and that the without prejudice rule is applicable.

The “without prejudice” rule operates to render evidence inadmissible. In general, “[t]he rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence” (Lord Griffiths in Rush & Tompkins Ltd v GLC [1989] 1 AC 1280, at 1299).

One justification for the rule can be found in “the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence if, despite the negotiations, a contested hearing ensues” (Robert Walker LJ in Unilever plc v Procter & Gamble Co [2000]1 WLR 2436, at 2442). The rule is also “founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish” (Lord Griffiths in the Rush & Tompkins case, at 1299).

Without prejudice negotiations will normally be inadmissible in their entirety. In the Unilever case, Robert Walker LJ said (at 2448-2449):

The without prejudice rule can continue to apply even after a compromise has been agreed. In the Rush & Tompkins case, Lord Griffiths said (at 1301):

The implications of the without prejudice rule are, moreover, capable of extending beyond the parties to the relevant negotiations. In the Rush & Tompkins case, Lord Griffiths said (at 1301):

It is not open to one party to without prejudice negotiations to waive the privilege unilaterally. The privilege is a joint one and so can be waived only with the consent of both parties: see Avonwick Holdings Ltd v Webinvest Ltd, at paragraph 21.

There are, however, exceptions to the without prejudice rule. Robert Walker LJ provided a list of some of “the most important instances” in the Unilever case, at 2444-2445. Two of those he identified are particularly relevant to the present appeal:

The basis and extent of the latter exception (Robert Walker LJ’s exception (6)) are controversial. I shall have to return to them later in this judgment.

The list of exceptions to the without prejudice rule is not closed. In Ofulue v Bossert, Lord Neuberger (with whom Lords Hope, Rodger and Walker expressed agreement) said (at paragraph 98) that it was open to the House of Lords to create further exceptions to the rule, while also expressing the view that it would be inappropriate to do so on the facts of that case. In Oceanbulk Shipping and Trading SA v TMT Asia Ltd [2010] UKSC 44, [2011] 1 AC 662, the Supreme Court concluded that there should be an exception under which:

While “[n]early all the cases in which the scope of the ‘without prejudice’ rule has been considered concern the admissibility of evidence at trial after negotiations have failed” (Lord Griffiths in the Rush & Tompkins case, at 1300), it can also render documents immune from disclosure. In the Rush & Tompkins case, Lord Griffiths noted (at 1304) that Rabin v. Mendoza & Co [1954] 1 W.L.R. 271 “shows that even as between the parties to ‘without prejudice’ correspondence they are not entitled to discovery against one another” and went on to explain (at 1305):

In the course of the hearing before me, there was some debate as to whether a party to without prejudice negotiations can properly show a third party documents relating to the negotiations without obtaining the consent of his counterparty. The authorities show both that the without prejudice rule can be waived only with the consent of both parties and that the rule protects communications within its scope from disclosure. Does it follow that relevant documents can be shown to a third party only if both parties to the negotiations agree?

The answer, I think, must be “No”. The voluntary provision of a document has, as it seems to me, to be distinguished from compulsory disclosure. The fact that a party to without prejudice negotiations is entitled to withhold communications within their scope on disclosure cannot mean that he is not free to show them to someone else if he so chooses, at least if there is a legitimate reason for doing so. Were the position otherwise, a litigant might find himself unable to provide relevant documents to, say, an expert unless and until the other side agreed, which would be absurd.

Thanki, “The Law of Privilege”, 2^nd ed. summarises the law relating to common interest privilege in these terms (at paragraph 6.16):

Although he placed little emphasis on the point, Mr Vikram Sachdeva QC, who appeared for EMW, maintained that an analogy with common interest privilege is to be drawn in the present case. The Halborg Claimants can, he suggested, share documents covered by the without prejudice rule with both Mr Halborg and EMW without losing their ability to assert the rule against the world in general.

Mr Marven, on the other hand, argued that common interest privilege can be of no relevance. He both disputed that a common interest can be said to arise between a litigant and his lawyers and said that, even if it did, it could not confer a right to demand disclosure.

I agree with Mr Marven that reference to common interest privilege is not of any assistance. Since the without prejudice rule confers a joint privilege, I find it hard to see how common interest privilege could normally have any application. Common interest privilege enables a document protected by legal professional privilege to be provided to a third party without privilege being lost: a litigant with the benefit of privilege can continue to withhold the document from his opponent, and the third party can also assert privilege. In the case, however, of without prejudice communications, both sides will already know of them and neither can dispense with privilege without the assent of the other. No question of without prejudice protection being lost could thus, it seems, arise from one side unilaterally disclosing communications to a person with a common interest.

Even supposing, however, both that there can be scope for drawing an analogy with common interest privilege in the context of the without prejudice rule and that a relevant common interest could be said to exist between a litigant and his lawyers, I do not think that reference to common interest privilege could help EMW in the present case. The analogy would suggest that the clients had not lost their right to rely on the without prejudice rule, not that lawyers working on the case could insist on seeing without prejudice communications. Another passage from Thanki, “The Law of Privilege”, (at paragraph 6.17) is apposite here:

Unlike the Master, therefore, I do not consider that EMW can claim to see otherwise privileged documents on the strength of an analogy with common interest privilege.

One of the well-established exceptions to the without prejudice rule relates to disputes about whether an agreement has been concluded. In the Unilever case, Robert Walker LJ noted that without prejudice communications are admissible where the issue is whether they have resulted in a concluded compromise agreement (see paragraph 40 above). In an earlier case, Tomlin v Standard Telephones and Cables Ltd [1969] 1 WLR 1378, Danckwerts J (at 1382) held some letters to be admissible:

Mr Sachdeva argued, and the Master accepted, that the exception is applicable in the present case. The amended particulars of claim allege that “[o]n or around the end of November 2011 [Mr Halborg] settled the costs of the Substantive Claim” and that allegation is denied in the defence. It follows, Mr Sachdeva said, that there is an issue as to whether an agreement was concluded and the without prejudice material is needed to determine it.

Mr Marven pointed out that Mr Halborg is adamant that no agreement has been reached. I do not think that that can matter, however. Mr Halborg has not applied for, let alone obtained, an order striking out the allegation of settlement found in the amended particulars of claim. Whether or not, therefore, Mr Halborg is confident that there has been no agreement, there is as matters stand an issue between the parties on the point.

The more serious objection to applying the concluded agreement exception is, I think, that no one involved in the without prejudice correspondence is alleging that an agreement has been reached. In Tomlin v Standard Telephones and Cables Ltd, the parties to the negotiations were at odds on whether an agreement had been arrived at, and Robert Walker LJ will presumably have had such a case in mind when identifying the relevant exception to the without prejudice rule. Here, in contrast, it is the agent of one side’s solicitor who is contending for an agreement; neither the Halborg Claimants nor Savage Hayward are doing so even though it is their privilege that is at stake. The Master’s approach, Mr Marven submitted, would have remarkable consequences: it would mean that a stranger to without prejudice negotiations could, by asserting that there had been a settlement, obtain communications which the parties themselves were entitled to assume enjoyed the protection of privilege.

On balance, however, I agree with the Master that the concluded agreement exception applies. In the Tomlin case, Danckwerts LJ observed that “it would be impossible to decide whether there was a concluded agreement or not unless one looked at the correspondence”. The same could be said in the present case. Moreover, while a party to without prejudice negotiations is entitled to assume that the negotiations will not generally be capable of being deployed in Court proceedings without his consent, he can have no absolute assurance of that. On any view, the concluded agreement exception means that he runs the risk of the correspondence becoming admissible because his opponent alleges that the negotiations resulted in an agreement. The extent of the risk arising from the exception does not seem to me to be significantly increased if it is understood as allowing not merely a party to the negotiations, but someone else with a legitimate interest in their outcome, to rely on it.

Muller v Linsley & Mortimer involved a claim against solicitors in which the plaintiffs alleged that they had brought and compromised some proceedings against other parties in a reasonable attempt to mitigate their loss. The solicitors disputed this and sought discovery of documents relating to the settlement. The plaintiffs disclosed the letter before action and final settlement agreement, but maintained that the without prejudice rule allowed them to withhold letters and other documents leading up to the settlement. The Court of Appeal decided otherwise and ordered production of the documents.

Hoffmann LJ approached matters on the basis that, since the solicitors were not parties to the relevant negotiations, the without prejudice rule must depend only on its public policy rationale, which he took to be directed solely to admissions (see 80). He explained (at 79):

The other members of the Court, Leggatt and Swinton Thomas LJJ, expressed agreement with Hoffmann LJ, while also saying that the Court’s decision could be justified on the basis of waiver. Swinton Thomas LJ, for instance, said (at 81):

Hoffmann LJ’s reasoning has not, however, been endorsed in subsequent cases. In the Unilever case, Robert Walker LJ said (at 2443) that, “[w]ithout in any way underestimating the need for proper analysis of the [without prejudice] rule”, he had “no doubt that busy practitioners are acting prudently in making the general working assumption that the rule, if not ‘sacred’ (Hoghton v. Hoghton (1852) 15 Beav. 278, 321), has a wide and compelling effect”. In Ofulue v Bossert, Lord Walker, having referred to views expressed by Lord Hoffmann in Muller v Linsley & Mortimer (as Hoffmann LJ) and Bradford & Bingley plc v Rashid [2006] 1 WLR 2066 (as Lord Hoffmann), said (at paragraph 57):

On the other hand, I was not referred to any criticism of the actual decision in the Muller case. To the contrary, Lewison LJ observed in Avonwick Holdings Ltd v Webinvest Ltd (at paragraph 22) that it was “hardly surprising that … the court ordered disclosure of the negotiations leading to the settlement”. Thanki, “The Law of Privilege”, 2^nd ed., states (at paragraph 7.22):

In the circumstances, I ought, as it seems to me, to proceed on the basis that Muller v Linsley & Mortimer was correctly decided on its facts. Further, I do not think that the case can be satisfactorily explained as one of waiver. Although Leggatt and Swinton Thomas LJJ suggested that the decision could be justified in that way, (a) they also both agreed with Hoffmann LJ and (b) it is hard to see how there can have been waiver since the authorities indicate that the benefit of the without prejudice rule cannot be waived by just one party to the negotiations. The correct inference must, in my view, be that (as is suggested in Thanki, “The Law of Privilege”) there is an exception to the without prejudice rule that encompasses the facts of the Muller case.

Mr Sachdeva submitted that the relevant exception (or a modified version of it) should be understood to extend to the present case as well. Mr Marven, however, maintained that that could not be appropriate. The Muller decision, he said, must be confined to cases where the content of without prejudice communications is put in issue by one of its owners. Here, in contrast, Mr Halborg (so Mr Marven pointed out) is not advancing a positive case about his negotiations with BLM and none of the parties entitled to the protection of the without prejudice rule is even a party to the present proceedings. On top of that, Mr Marven said, EMW is seeking disclosure with a view to advancing a case which could be to the detriment of the Halborg Claimants, who are owners of the privilege, since a payment to EMW could potentially trigger shortfall provisions in the Client CFA under which the Halborg Claimants could be liable to pay Mr Halborg sums not recovered from Savage Hayward. In that connection, Mr Halborg’s parents each observed in a witness statement that “it seems that any costs wrongfully paid to EMW rather than to our former solicitor ‘Halborg & Co. (Solicitors)’ potentially would affect us in that the same may trigger the ‘shortfall’ provisions in our CFA with ‘Halborg & Co. (Solicitors)’”.

In the end, however, Mr Marven has not persuaded me that the result in the present case should be different from that in Muller.On the contrary, I have concluded that, to echo Lord Walker in Ofulue v Bossert and Lord Clarke in the Oceanbulk case, justice clearly demands that an exception to the without prejudice rule (whether that encompassing the facts of the Muller case or another, comparable, exception) should apply even aside from the question of whether an agreement has been reached with Savage Hayward. My reasons include these:

Although not parties to the Agency CFA, the Halborg Claimants agreed to Mr Halborg using EMW on a conditional fee basis (see paragraph 5 above). There is a persuasive argument that if, as here, a client authorises his solicitor to employ an agent on the footing that the agent’s remuneration depends on what (if any) agreement as to costs is reached with the other side, the client can hardly complain if his negotiations with the opposing party are susceptible to being revealed to and relied on by the solicitor-agent;

While the Halborg Claimants are not parties to the present proceedings, the stance that Mr Halborg has taken must reflect their wishes. In fact, Mr Halborg’s parents have explained in their witness statements that they “do not consent in any manner to the release of any documents or information at all to EMW”, that they “do not waive any privilege … in any documents or correspondence (or anything else)” and that they “respectfully ask the High Court not to order the release of any privileged or confidential information or documents to EMW”;

Mr Halborg has himself made reference in his defence to the negotiations with BLM. Paragraph 19(a) of the defence explains that he informed EMW that BLM “ascribed no value at all to [EMW’s] work”;

It is hard to see how EMW’s claim would be justiciable without disclosure of Class A Documents. EMW and the Court would both, on the face of it, be in the dark as to, for example, what any payments Savage Hayward have made related to, how they came to be made on that basis, why nothing has been paid in respect of other items of costs and, should it prove to be the case that no settlement has been concluded, why not;

I see no likelihood that recognising that an exception to the without prejudice rule applies would deter parties from seeking to settle. Those undertaking negotiations will, if well informed, already be aware that the without prejudice rule will not apply if there is a dispute about whether they have reached agreement and that the facts of the Muller case have been held to fall within another exception. The existence of the Muller exception, moreover, means that communications otherwise protected by the without prejudice rule may become disclosable and admissible because the other party to negotiations unilaterally chooses, for reasons of his own, to put forward a case about the negotiations in litigation with a third party;

Some of the reasoning on which Mr Halborg’s case is based might suggest, not merely that a solicitor-agent could be prevented from seeing and using without prejudice communications, but that the same could be true of a solicitor whom a client had himself instructed on a conditional fee basis. That would be an even odder result; and

Were there to be a need, the Court could consider making an order (as the Master did) under CPR 31.22(2) to prohibit or restrict the use of documents relating to the negotiations with BLM and/or excluding the public from part of a hearing.

In all the circumstances, I agree with the Master that the without prejudice rule does not entitle Mr Halborg to decline to disclose the Class A Documents.

It is Mr Halborg’s case that the Class C and D Documents can be withheld on the strength of legal professional privilege. The Master took a different view, stating as regards the Class C Documents (in paragraph 62 of the judgment):

Mr Halborg disputes the Master’s conclusion on this point. His grounds of appeal include the assertion that there had in fact been no waiver.

This aspect of the case received relatively little attention in the parties’ skeleton arguments or oral submissions. Mr Marven, however, contended that, contrary to the Master’s view, the mere fact that a solicitor delegates work to an agent does not mean that the client has waived privilege, so that the agent can demand disclosure of documents other than those provided to him in the course of his agency. In contrast, Mr Sachdeva suggested that, when a contract is made with a solicitor-agent, the presumption is that any litigation and/or advice privilege is generally waived with regard to the solicitor-agent unless there is an express exclusion, which there was not here.

On balance, I prefer Mr Marven’s submissions. I agree with him that the mere fact that the Halborg Claimants may have known of and agreed to EMW carrying out work for them cannot justify the conclusion that they waived legal professional privilege. There can, of course, have been no objection to Mr Halborg showing EMW privileged material with the Halborg Claimants’ express or implied consent. It is quite another matter to say that EMW can insist on seeing documents that it did not see in the course of its work and which the Halborg Claimants do not wish it to be provided with now.

It follows, I think, that Mr Halborg’s appeal should be allowed as regards the Class C and D Documents.

My conclusions thus far make it unnecessary for me to consider the point advanced in the Respondent’s Notice.

I shall dismiss the appeal so far as it concerns the most important category, the Class A Documents, and also the Class B Documents. In contrast, I shall allow the appeal as regards the Class C and D Documents.