Discovery

Translations of selection of own client's unprivileged documents from Japanese for litigation purposes - privilege claim failedSumitomo Corpn v Credit Lyonnais Rouse Ltd: CA (Lord Phillips of Worth Matravers MR, Jonathan Lord Justice Parker and Lord Mustill): 20 July 2001Between 1985 and 1996 one of the claimant's employees caused the claimant to suffer trading losses of $2.6 billion by unauthorised trading.In 1999 the claimant brought an action against the defendant bank claiming equitable compensation or damages for losses suffered as a result of those unauthorised trading activities carried out through the defendant as a clearing bank.Many of the claimant's Japanese documents were reviewed for the litigation and other pending actions and those selected for relevance were translated according to priority.The defendant's solicitors proposed that each party disclose translations of foreign language documents in its control.

The claimant's solicitors refused, claiming that although the Japanese documents were not privileged, privilege attached to all the translations from Japanese.Mr Justice Andrew Smith rejected the claimants' claim of legal professional privilege.

The defendant appealed.Lord Grabiner QC and Orlando Gledhill (instructed by Ashurst Morris Crisp) for the claimant.

Michael Briggs QC and Matthew Newick, solicitor (instructed by Clifford Chance) for the defendant.Held, dismissing the appeal, that for the purposes of legal professional privilege a translated document was to be treated in the same way as a copy because it derived solely from the original document; that the principle that privilege attached to a selection of unprivileged third party documents which betrayed the trend of legal advice given to a litigant did not extend to copies or translations of own client documents; and that if a party resisted production of a selection made from own client documents, it was in the discretion of the court whether to order production.

(WLR)