Makar v PricewaterhouseCoopers LLP

This is an application made by the claimant for two documents, or two sets of documents. The form of the application was redrafted by Mr Justice Burton at a hearing on 23^rd June. The first category is a letter sent by Allen & Overy to the defendants in September 2005 relating to the company’s alleged liability to compensate or indemnify the claimant in respect of certain legal, professional or other costs and expenses incurred by her. The second is any document which evidences the date when the defendant decided to resign as an auditor of the company.

Insofar as the first the first category is concerned, it seems to me manifest that this is a privileged document containing legal advice with regard to the potential exposure of the defendant’s client to the claimant who had incurred expenses of a legal character and so on. The purpose of the advice was to assess whether some reference to the claim should be made in the accounts. It is a privileged document, and therefore must be disclosed in the sense that it exists, which it has been, but the claimant is not entitled to inspection of it.

Even if it is not privileged, at the moment I cannot see any basis upon which it could be said to be relevant to the issues for which disclosure is sought, namely the application on Friday by the defendants to strike out the claim as having no realistic prospect of success because there is no arguable cause of action. The cause of action that is advanced by the claimant relates to the alleged liability of the defendant in respect of sums incurred in seeking advice from Herbert Smith following departure from her company. That I understand has been the subject of proceedings before a Tribunal, and a compromise has been reached. It may have been that Allen & Overy gave advice that the company should contemplate being much more generous than even the Tribunal was, but one has to ask, ‘So what?’ The cause of action is going to be the same, regardless of the level of compensation which Allen & Overy might have been prepared to contemplate, rather than the level of compensation which was actually received.

The second class of documents relates to the date when the defendant decided to resign as auditor. It appears that it is common ground that the defendant decided to resign, but did not actually put that fact into writing for a period of time. But why the precise date on which the decision was reached is relevant to the existence or otherwise of the pleaded cause of action is not explained. The document, or documents are not necessary for the disposal of the application on Friday, and unless they are necessary, it is not appropriate for this court to order disclosure. Therefore I refuse the application.