West Law Report

Documents after delivery

Posted in Times Law Report by mrkooenglish on November 16, 2008

From The Times
November 6, 2008
Documents after delivery

Chancery Division
Published November 6, 2009
Warner v Verfides (a Firm)
Before Mr John Martin, QC
Judgment October 29, 2008

Documents created by one party and sent to another did not necessarily cease to be correspondence, to which the privacy provisions of article 8 of the European Convention on Human Rights could apply, when they were received by the latter.

Mr John Martin, QC, sitting as a deputy Chancery Division judge, so held when, inter alia, determining how the costs of two interveners, Benno Hafner and Hafner and Hochstrasser, a firm, were to be borne in an application by Anthony John Warner, trustee in bankruptcy of the late Rene Rivkin, under article 21(1)(d) of the UNCITRAL Model Law on Cross Border Insolvency, as scheduled to the Cross Border Insolvency Regulations (SI 2006 No 1030), for disclosure of documents by the respondent, Verfides, formerly Fortis Intertrust Ltd.

In the event, only a few documents were affected and were excluded by the judge on the ground of irrelevance rather than confidentiality. The only issue affecting the interveners was how their costs were to be borne. That raised the question, inter alia, whether they had had a sufficient interest to intervene at all.

Mr Stephen Davies, QC and Mr Setfan Rowel for the trustee; Mr Piers Gardner, Mr Ian Rogers and Miss Carolyn Walton for the interveners; Verfides was not represented.

HIS LORDSHIP said that to construe “correspondence” as applying only to letters still in the possession of the writer or in the process of transmission to the intended recipient appeared unduly restrictive. In ordinary language, the term would be expected to apply to exchanges of letters in whoever’s hands they were.

Applying the interpretation of the European Court of Human Rights in Niemietz v Germany (Application No 13710/88) ((1992) 16 EHRR 97), his Lordship could see no reason why documents created by the interveners and sent to the respondent should have ceased to be correspondence on receipt.

On that ground, the application by the trustee engaged the interveners’ rights under article 8 in respect of their private life, which extended to the interveners’ business activities.

Solicitors: Ashfords, Exeter; Kingsley Napley.

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