Joint Interest Privilege

Joint Interest Privilege

About Tim MoltonTim Molton

Tim Molton has a broad practice as an Associate in the Dispute Resolution Team. He advises commercial clients and high net worth individuals on a wide range of matters, having particular experience in the fields of contentious trusts, fraud and asset-tracing, cross-border enforcement, insolvency, financial regulation and employment law matters.

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By Tim Molton & Fozeia Rana-Fahy

On 12 April 2021, the Court of Appeal for Bermuda delivered its judgment in the matter of Wang v Grand View Private Trust Company Limited (Civil Appeal No.1 of 2021) (the “Appeal”) on the issue of joint interest privilege.

Overturning the decision of the Supreme Court of Bermuda on an interlocutory application brought in the substantive proceedings (Wong v Grand View Private Trust Company Limited and Ors, Civil Jurisdiction 2018: No. 44) (the “Main Action”)[hyperlink to below article] the judgment provides helpful clarification on the principles relating to joint interest privilege, and valuable insight into the types of relationship that may give rise to such.

The Appeal was brought by Tony Wang, the son of the late Taiwanese billionaire YT Wang, who died in 2014. Tony Wang, the Eighth Defendant in the Main Action and the co-administrator of his late father’s Bermudian estate, sought disclosure of documents held by the First to Fourth and Sixth Defendants (five Bermudian private trust companies referred to as the “PTCs”) relating to the preparation and execution of a power of attorney for YT Wang (the “POA Documents”). In the first instance, the Supreme Court ruled that, because the PTCs were the client of the law firm preparing the POA on YT Wang’s behalf, the POA Documents could be withheld on the basis of litigation privilege.

However, allowing the appeal, Sir Christopher Clarke P, Subair Williams and Smellie JA held that YT Wang did in fact have a joint interest in the POA Documents, such that the PTCs were unable to oppose disclosure (to Tony Wang as YT Wang’s personal representative) on the grounds of a purported litigation privilege. This was so notwithstanding that YT Wang was not party to a joint retainer and nor was the advice provided to him in an individual capacity.

Sir Christopher Clarke commented that, “in assessing whether a relationship gives rise to a joint interest one should consider both the relationship between the parties and the subject matter of the material. The relevant relationship in this case was that of procurer of the power of attorney (by the PTCs giving instructions to the Taiwanese law firm) and the intended holder of it (being YT’s son, William). That relationship was apt, of itself, to give rise to a joint interest.”

However, Sir Christopher Clarke went on to add that “The subject matter was the preparation, production and execution of the power of attorney. The interest of YT in the subject matter was not just some general interest, but an interest of YT in the power of attorney as a personal authority of his, which, if executed and acted on, could affect the totality of his property, and to which no one except him and his son would be party. The classes of relationship and interest in subject matter in which a duty to afford access may arise are not closed.”

MJM successfully acted for the Appellant, Tony Wang, in this appeal.