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The Court of Appeal in Dechert LLP v Eurasian Natural Resources Corporation Ltd  EWCA Civ 375 has dismissed an appeal and upheld a decision that a detailed assessment of client-solicitor costs under section 70 of the Solicitors Act 1974 (SA 1974) be held in private under CPR 39.2(3). In doing so, it found that, in the circumstances of this case, protecting ENRC’s fundamental right to legal professional privilege (LPP) outweighed the fundamental general principle of open justice.
It also found ENRC’s waiver of privilege in relation to these taxation proceedings had been for a limited purpose only. This case is of particular interest to practitioners in its consideration of the extent to which privilege is waived by a client
bringing proceedings against their former solicitors (whether they be costs assessment or professional negligence proceedings) and for its discussion of the distinction between waived and lost privilege.
ENRC had applied for a detailed costs assessment of Dechert's bill of costs to be held in private under CPR 39.2(3). Initially, the application had been dismissed by a Master but was subsequently allowed by Roth J on appeal. This judgment is of the further
appeal in which Dechert sought to overturn Roth J's decision that the detailed costs assessment be heard in private.
For a detailed analysis of the parties’ arguments and the judges’ findings in this decision, see link at the end of this article.
In dismissing the appeal and upholding Roth J's decision that the taxation be heard in private, the Court of Appeal considered the following key issues:
Lady Justice Gloster 'had no difficulty in concluding that the judge's conclusion, namely that these proceedings should be heard in private, was correct' (para ) and found, among other things:
Lady Justice Gloster found 'the authorities clearly demonstrate that there is a concept of waiver for limited purposes and that this is clearly what happened in this case'. More particularly:
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