The Commercial Court recently handed down a judgment which considers a number of important questions of law concerning abuse of process and legal professional privilege: see Salinas Pliego v Astor Asset Management 3 Ltd [2025] EWHC 2968 (Comm).
In these proceedings, Cs advance a fraud claim for c.US$300 million and obtained freezing orders in 2024. The present applications arose out of an attempt by Cs to obtain confidential information from Ds’ previous litigation solicitor. The solicitor, referred to in the judgment as “X”, was deceived into meeting a private investigator instructed by Cs. By pretending to be a new client, the investigator “skilfully and tenaciously” obtained confidential information from X concerning the perceived strengths and weaknesses of X’s clients’ position, including aspects of their litigation and settlement strategy. Those meetings were secretly filmed and the recordings were provided to Cs, who then applied for summary judgment.
Ds applied to strike out the claim (alternatively to discharge the freezing orders and for other relief) on the ground of abuse of process and that the fairness of any trial had been jeopardised.
Following a 2.5 day hearing, Stephen Houseman KC, sitting as a deputy High Court judge, concluded that Cs had “engaged in abusive conduct by seeking or attempting to obtain confidential information from their adversary’s litigation solicitor”: [60]. The Judge also observed at [61] that this amounts to “cheating the system with a view to undermining the level playing field which the Court strives to maintain between opposing parties” and at [77] that the claimants’ conduct was “an affront to justice and inimical to the fundamental norms and values of civil litigation in this jurisdiction.”
As a response to this abuse, the Judge struck out Cs’ summary judgment application and indicated that Cs would be ordered to pay Ds’ costs on the indemnity basis. The Judge also adjourned to a further hearing the remainder of the strike out and discharge applications, including the question whether the claim should be struck out on the ground that a fair trial is no longer possible and/or whether the freezing order should be discharged.
The Judge indicated that permission to appeal and cross-appeal would be given because “the interplay between competing policies deserves appellate attention”: [84(i)].
Niranjan Venkatesan KC and Alexander Georgiou acted for the defendants on the strike out application, instructed by PCB Byrne LLP.
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