Admissibility of Privileged Documents Lawfully Disclosed by Third Parties in Foreign Proceedings

21 April 2022
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Key takeaways:
  • Suppipat and others v Siam Commercial Bank Public Company Ltd and another [2022] EWHC 381 (Comm) confirms that just because documents have been obtained lawfully in one jurisdiction, it does not mean that they thereby become available for use in litigation in another.
  • Litigants should carefully consider the English rules of privilege when considering how to deploy confidential documents obtained in foreign proceedings.
  • In determining whether documents disclosed in foreign proceedings are privileged, the English courts will not take into account whether a foreign court considers the document to be privileged or whether the foreign court permits the disclosed documents to be used for other purposes.
  • The English courts will apply English law in deciding whether a document is privileged, including whether that document has lost its confidentiality. The courts will not detach the question of confidentiality from the question of privilege by reference to foreign law.
  • In considering the question of confidentiality, it is relevant whether the documents obtained in foreign proceedings were received in confidence, whether the party to whom the privileged materials belong had notice of the application, whether the documents were clearly privileged and the extent and purpose for which the documents were then disseminated.