{"id":"court_ctb_761_3","court":"CTB","case_no":"22-50073","doc_number":761,"sub_number":3,"doc_type":"JUDGMENT","filed_date":null,"title":"815/22, 122986 22-50073 Doc 761-3 Fileed88/10/22emoEptemedia8/126/12020 Page 2 of 41","summary_zh":null,"summary_en":null,"body_en":"815/22, 122986 22-50073 Doc 761-3 Fileed88/10/22emoEptemedia8/126/12020 Page 2 of 41\n\n[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]\n\n![](_page_1_Picture_2.jpeg)\n\n# England and Wales High Court (Chancery Division) Decisions\n\nYou are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Leeds & Anor v Lemos [2017] EWHC 1825 (Ch) (17 July 2017) URL: htt Cite as: [2018] 2 WLR 73, [2017] WLR(D) 504, [2018] 1 AII ER 313, [2017] EWHC 1825 (Ch), [2018] Ch 81\n\n[New search] [Printable RTF version] [View ICLR summary: [2017] WLR(D) 504] [Buy ICLR report: [2018] 2 WLR 73] [Buy ICLR report: [2018] Ch 81] [Help]\n\nNeutral Citation Number: [2017] EWHC 1825 (Ch)\n\nCase No. BR-2015-003947\n\nIN THE HIGH COURT OF JUSTICE CHANCERY DIVISION IN THE MATTER OF CHRISTOS PANDELIS LEMOS AND IN THE MATTER OF THE INSOLVENCY ACT 1986\n\n> Rolls Building Fetter Lane London EC4A 1NL 17 July 2017\n\nBefore:\n\nHIS HONOUR JUDGE HODGE OC (Sitting as a Judge of the High Court)\n\n(1) MICHAEL THOMAS LEEDS AND KEVIN JOHN HELLARD\n\n(in their capacity as the joint trustees in bankruptcy of the estate of\n\nMr Christos Pandelis Lemos)\n\nApplicants\n\n- and -\n\n(1) CHRISTOS PANDELIS LEMOS\n\n(2) KALLIOPI LEMOS\n\n(3) WITHERS LLP\n\nRespondents\n\nMS FELICITY TOUBE QC and MR TONY BESWETHERICK (Instructed by Gowling WLG (UK) LLP) appeared on behalf of the Applicants\n\nMR DAVID LORD QC and MR SEBASTIAN KOKELAAR (Instructed by Richard Slade & Company) appeared on behalf of the First Respondent\n\nMS MARCIA SHEKERDEMIAN QC (Instructed by TLT LLP) appeared on behalf of the Second Respondent\n\nThe Third Respondent was not represented at the hearing\n\n# HTML VERSION OF JUDGMENT APPROVED\n\nCrown Copyright ©\n\n- 1. JUDGE HODGE QC: This is my extemporary judgment on the hearing of an application, issued on 12 April 2017, by Mr Michael Thomas Leeds and Mr Kevin John Hellard in their capacity as the trustees in bankruptcy of Mr Christos Pandelis Lemos, case number BR-2015-003947.\n- 2. This application raises fundamental questions as to the true meaning and effect of the decisions of Mr Justice Arnold at first instance in Shlosberg v Avonwick Holdings Limited [2016] EWHC 1001 (Chancery), reported at [2016] 3 WLR 1330, and of the Court of Appeal affirming Mr Justice Arnold's decision in the same case, [2016] EWCA Civ 1138, presently reported at [2017] 2 WLR 1075.\n- 3. Those questions in turn require me to determine: (1) whether the principle formulated by Mr Justice Goff in the case of Crescent Farm (Sidcup) Sports Limited v Sterling Offices Limited [1972] Chancery 553, and hereafter referred to as the Crescent Farm principle, applies in bankruptcy; and (2) whether the second ground for decision of Mr Justice Peter Gibson in Re Konigsberg [1989] 1 WLR 1257 is still good law,\n- 4. The application seeks: (1) directions in relation to the use that can be made of certain potentially privileged documents that the trustees in bankruptcy have obtained from the former solicitors of Mr Lemos, who are Withers; and (2) an order pursuant to section 366 (1) of the Insolvency Act 1986 requiring Withers to deliver up any further documents in their possession which relate to Mr Lemos's affairs or for an appropriate member of the firm to submit a witness statement containing an account of such affairs. Withers has confirmed that it is prepared to comply with such an order and therefore Withers are not represented before me and that part of the application is unopposed. It is common ground that the precise terms of the order should be addressed after I have delivered this judgment.\n- 5. Mr Lemos was adjudged bankrupt on 11 March 2015 and he secured his discharge from bankruptcy on 12 March 2017. He is the first respondent to this application. He is represented by Mr David Lord QC, leading Mr Sebastian Kokelaar (of counsel).\n- 6. The second respondent to the application is Mrs Kalliopi Lemos, the wife of the first respondent. She is represented by Ms Marcia Shekerdemian OC.\n- 7. The applicant former trustees in bankruptcy are represented by Ms Felicity Toube OC, leading Mr Tony Beswetherick (also of counsel).\n- 8. The evidence in support of the application is contained within a written statement of Mr Leeds (his ninth) dated 10 April 2017. Evidence in answer is contained in the witness statement of Mr Lemos dated 16 June 2017 (his second) and in the first witness statement of Mrs Lemos dated 9 June 2017. There are also written statements from the two sisters of the second respondent, Koula Mangos, dated 6 June 2017, and Maria Lemou, dated 7 June 2017. Evidence in reply is contained within the tenth witness statement of Mr Leeds dated 29 June 2017. Happily, nothing turns upon the precise terms of the witness evidence.\n- 9. By way of overview, the joint trustees in bankruptcy have in their possession certain documents which they obtained from Withers in the course of the discharge of the trustees' functions. Some of those documents may be subject to legal professional privilege belonging to Mr Lemos either alone or jointly\n\n#### 815/22, 12:38 PM 22-50073 Doc 761-3 Fileet@8/176/22emarpterpelv68/12620/16110/2041 Page 4 of 41\n\nwith his wife. Mrs Lemos has also suggested that some of the documents might be subject to her sole privilege, although she has yet to review the documents to confirm her position in relation to any particular documents. If any document were subject to Mrs Lemos's sole privilege, the trustees accept that they cannot, at least prima facie and without more, use those documents free from that privilege. However, it seems unlikely, at least to the trustees, that there will be any such documents.\n\n- 10. The trustees believe that a number of the Withers documents are likely to be useful as evidence for the purposes of proceedings under section 423 of the Insolvency Act 1986 relating to transactions defrauding creditors. Those proceedings would be to set aside certain transactions entered into by Mr Lemos many years prior to his bankruptcy and relating to the ownership of the house 27 and 27A Bracknell Gardens. London NW3, in which Mr and Mrs Lemos live. Those proceedings, if successful, would result in the recovery of what is said to be an extremely valuable asset for the benefit of Mr Lemos's substantial creditors.\n- 11. In particular, certain of the Withers documents have already been seen by the Court of Appeal in the different context of an application to reinstate relief by way of a freezing injunction that came before the Court of Appeal, the reference to which is Lemos [2016] EWCA Civ 1181. In that appeal the court concluded, partly as a result of a review of the contents of those documents, and reversing a decision of Mr Justice Cooke, that those documents provided a good arguable case that there should be section 423 relief.\n- 12. At paragraph 22 of their judgment, however, the Court of Appeal, in agreement with the first instance judge, held that there was insufficient evidence, for the purpose of maintaining the freezing injunction, to lead the court to suppose that it had been the common intention on the part of Mr and Mrs Lemos and the trustees that at any relevant time after the transfer of the house in 1994 Mr Lemos should have any beneficial interest in the property. The Court of Appeal recorded that to come to that conclusion would mean that Mr Lemos's declaration of trust, and a trust in favour of the second respondent which followed shortly thereafter, were both shams in which the trustees had participated knowing that the truth was the opposite of what was provided for in the documents.\n- 13. The Court of Appeal found it difficult to accept the argument that the applicant for freezing relief. Joanna Lemos, who is the sister of Mr Lemos, could succeed under this head without alleging that the documentation was a sham. However, as I have indicated, the Court of Appeal did reinstate the freezing injunction on the footing that there was a good arguable case that there should be relief at the instance of Joanna Lemos under section 423 of the 1986 Act.\n- 14. The property, which is said to be worth currently in the order of £16.5 million, is presently registered in the joint names of a Bermudian trustee company and one of its directors. The offshore trustees, together with the two respondents to this application, contend that they hold the property on trust for Mrs Lemos alone.\n- 15. The applicants say that this hearing is not concerned with the merits or otherwise of the section 423 claim but with the prior question of what use the trustees can make of such of the Withers documents which it ultimately turns out are subject to either the sole privilege of Mr Lemos or the joint privilege of himself and his wife.\n- 16. The need for these directions arises because of a dispute between the trustees in bankruptcy, on the one hand, and Mr and Mrs Lemos, on the other, over the former's ability to make use of the Withers documents. The trustees wrote to Mr and Mrs Lemos seeking confirmation that they did not object to the deployment of certain of the Withers documents for the purposes of proceedings relating to the property. In response, (1) Richard Slade & Co, who are the solicitors acting for Mr Lemos, stated that he objected to the use of the documents on the basis that they were privileged and he would not consent to waive such privilege; and (2) TLT LLP, the solicitors acting for Mrs Lemos, wrote in similar terms and further accused the trustees of having acted unlawfully in relation to their use of certain of the documents.\n\n#### 8/15/22, 1226866 22-50073 Doc 761-3 Filesel@100/22emoEpsterjew@da26/26/264 Page 5 of 41\n\n- 17. During the course of this hearing I have made it clear that in the absence of Joanna Lemos, the judgment creditor who had obtained the freezing injunction and who had deployed certain of the documents in the Court of Appeal, it would not be appropriate for me to decide any questions about the propriety or the present or future use of those documents in the extant section 423 proceedings.\n- 18. In the course of his submissions Mr Lord, acting for Mr Lemos, indicated that whether the actions of the trustees in bankruptcy in passing documents to Joanna Lemos were right or wrong were not matters for the court on the hearing of this application, although he made it clear that Mr Lemos's rights in that respect were reserved.\n- 19. The responses of both respondents place reliance upon the decision of the Court of Appeal in the Avonwick case. In this judgment I shall have to consider the true meaning and effect of that judgment and its implications for trustees in bankruptcy.\n- 20. I make it clear that I am only considering the position of a trustee in bankruptcy. I am not concerned with the position of a liquidator of a company.\n- 21. It became apparent during the course of her submissions that Ms Toube, for the applicants, considers that the Avonwick case was wrongly decided. She reserves the right to challenge its correctness in a higher court. However, Ms Toube has sought to limit the asserted effect of the Avonwick decision. Mr Lord and Ms Shekerdemian resist Ms Toube's efforts, saying that that amounts to a restatement of the effect and implications of the Avonwick decision.\n- 22. As for the judgment in that case, Ms Toube points out that Mr and Mrs Lemos appear to contend that the conclusion was that, despite long-standing views to the contrary, trustees in bankruptcy are not permitted to deploy in proceedings such as those relating to the property any documents which are subject to the bankrupt's sole or joint privilege without the consent of the bankrupt and, in the case of any iointly privileged documents, the consent of Mrs Lemos as well. If those propositions are correct, and if the court also has no power to order Mr Lemos to consent to the privileged documents, then it is said that the decision in Avonwick would have huge repercussions and serious implications upon the ability of trustees in bankruptcy to discharge their functions to recover assets of the bankrupt's estate, not only in this case but much more widely.\n- 23. Those wider implications are addressed at paragraph 63 of Mr Leeds's ninth witness statement. He there says that the Avonwick decision has far-reaching consequences for both him, as a trustee in bankruptcy in this case, and for the insolvency industry as a whole. He says, by way of example, that he is currently working on another bankruptcy matter in which documents have been disclosed to him by the bankrupt's former legal advisers under section 311 of the Act, meaning that he is now privy to information which could assist him in realising the bankrupt's estate for the benefit of creditors. However, if he is unable to use that information in any way that might amount to a waiver of such privilege, he would be severely hampered in fulfilling his tasks.\n- 24. Indeed, he says that if Avonwick has the effect contended for by the respondents, then:\n\n(1) He would be unable to disclose details of his investigation to any creditors who are funding the bankruptcy process where such details would reveal information contained within privileged documents. That would naturally lead them to question the status of investigations, the benefit of such investigations and why such creditors should continue funding the process and Mr Leeds's role within it.\n\n(2) When interviewing any third party, he would be unable to refer to any information contained in privileged documents. That would make such an interview process much more difficult and could ultimately render it useless to the bankruptcy process.\n\n(3) Mr Leeds might be also unable to disclose relevant privileged information to third party funders who might otherwise be interested in funding a claim in relation to the bankrupt's estate. Without such\n\n815/22, 1228/8/22-50073 - Doc 761-3 - Fileeb88/17/22emcEnterredw88/126/22/16/204/204/2041 - Page 6 of 41\n\ninformation, which might be key to the basis for a claim, such funders might be likely to lose interest.\n\n(4) If asked to adjudicate on a creditor claim, and Mr Leeds had seen privileged documentation which proved that the credit's claim was wholly or partly without basis, he might be unable to evidence the reasons why he was rejecting that claim, and in defending any appeal against his decision.\n\n(5) If a privileged document revealed an asset in the bankruptcy estate, Mr Leeds would be unable to use that document to further his investigations into that asset, and accordingly that could prevent that asset from being realised for the benefit of the bankrupt's creditors.\n\n- 25. Accordingly, and given the potential implications of Avonwick and stance of Mr Lemos to date, Mr Leeds thinks it appropriate to proceed by way of this application.\n- 26. Ms Toube submits that the propositions for which the respondents contend are not correct. Their argument is said to be based upon a misunderstanding of the Avonwick decisions. In summary, the trustees say that:\n\n(1) The decisions in Avonwick confirm that a bankrupt's privilege in documents that relate to assets of the bankrupt's estate - but not, Ms Toube emphasises, the liabilities of that estate - continue to devolve upon the trustee in bankruptcy.\n\n(2) As a consequence, in relation to those of the Withers documents that relate to Mr Lemos's assets: (a) if they are subject to Mr Lemos's sole privilege, the trustees are entitled to make use of those documents for the purposes of filling their functions, whether in proceedings against Mr Lemos, against Mrs Lemos or against third parties, or otherwise for the purposes of the bankruptcy; (b) if they are subject to Mr and Mrs Lemos's joint privilege, then as the trustees have succeeded to Mr Lemos's interest in the privilege, they stand in his shoes and are entitled to rely upon and deploy the documents in proceedings to which both Mr and Mrs Lemos are a party; and (c) if they are subject to the sole privilege of Mrs Lemos, then prima facie, without more, the trustees are not permitted to use the documents.\n\n27. The particular issues on which directions are sought at the instant hearing are categorised by Ms Toube as follows:\n\n(1) The Avonwick initial question: Assuming that some or all of the Withers documents are privileged and that such privilege belongs to Mr Lemos (whether solely or jointly with his wife) whether or not the trustees are entitled to deploy such documents without the consent of Mr and/or Mrs Lemos in proceedings against the offshore trustees (in the case of the sole privilege of Mr Lemos) and/or Mrs Lemos (in the case of the sole or joint privilege of Mr Lemos) relating to the property.\n\n(2) The section 363 initial question: Assuming that some or all of the Withers documents are subject to privilege belonging to Mr Lemos (whether solely or jointly with his wife) and assuming also that the trustees are not automatically entitled to use those documents, can Mr Lemos be ordered by virtue of sections 333 and 363 of the 1986 Act to waive his privilege in the documents, such that they can be used by the trustees.\n\n- 28. For Mr Lemos, Mr Lord submits that the trustees in bankruptcy cannot be allowed to use the documents in any way which would amount to a waiver of Mr Lemos's privilege. He also submits that the trustees in bankruptcy cannot require Mr Lemos to waive his privilege in the documents so as to enable them to be used by the trustees.\n- 29. As a result of the evidence served by the parties, including the stance taken by Mr and Mrs Lemos in correspondence and in their evidence, the application is said to raise a number of other questions, in particular whether: ( 1) in relation to each particular document within the documents received from Withers, it is in fact prima facie privileged; (2) if it is, whether it is subject to the sole privilege of Mr Lemos, the sole privilege of his wife, or the privilege of them jointly; (3) even if a particular document is prima facie privileged, whether that privilege has been lost because it falls within the iniquity exception\n\n#### 8/15/22, 142086 22-50073 Doc 761-3 Fileets8/80/22emoEpsels08/826/284 06.00224) Page 7 of 41\n\nin the sense that privilege does not attach to it because it came into being as a consequence of Mr or Mrs Lemos seeking or obtaining advice for an iniquitous purpose; and, finally, (4) if the documents are privileged but the court can order Mr Lemos to waive his privilege, whether such an order should be made in relation to any particular document or all of the documents.\n\n- 30. Those questions are said only to arise after determination of the initial questions and, as a matter of case management and proper use of the court's resources, should only be considered after those initial questions have been determined, and they cannot presently be determined at this hearing because the factual evidence is not complete.\n- 31. For the respondents, it is submitted that if the initial questions are answered in the sense for which the respondents contend, then the proper course is for the court simply to dismiss the present applications, leaving the trustees in bankruptcy to make a future applications directed to particular and specified documents which have been the subject of individual scrutiny by the trustees in bankruptcy and the individual respondents.\n- 32. I can summarise the background to the applications before the court by reference to paragraph 18 of Ms Toube's skeleton argument.\n- 33. Mr Lemos's sister Joanna issued proceedings against him in the Royal Court in Jersey in December 2014 alleging that she was entitled to recover sums totalling some US\\$18 million that she had entrusted to Mr Lemos to invest on her behalf, but which she says had been misapplied by him in his failed shipping businesses. Shortly after the issue of those proceedings, Joanna applied for and obtained a without-notice freezing injunction from the English High Court restraining dealings by Mr Lemos with his assets and any dealings by the offshore trustees with the property.\n- 34. Those proceedings were not defended by Mr Lemos, and Joanna obtained judgment in default against him for over US\\$17.9 million in January 2015. Thereafter, Mr Lemos successfully petitioned for his own bankruptcy; and the present trustees were appointed on 1 April 2015.\n- 35. The offshore trustees successfully applied to lift the freezing injunction restraining them from dealing with the property at a hearing before Mr Justice Cooke in May 2015, but Joanna obtained permission to appeal from that decision and the injunction was reinstated pending the hearing of her appeal. In the interval, Mr Lemos's automatic discharge from bankruptcy was suspended for one year as a consequence of his asserted refusal to cooperate with the trustees.\n- 36. During the course of their investigations, the trustees became aware that Withers had acted for Mr Lemos and, after some delay, they obtained copies of Withers' files. The trustees then provided copies of certain of those documents to Joanna for her to use at the forthcoming hearing of the appeal. That was after Mr Justice Arnold's decision in the Avonwick case but before the Court of Appeal's decision on appeal therefrom.\n- 37. Joanna applied for permission to rely upon the documents at the appeal against the order lifting the injunction. The Court of Appeal admitted that new evidence and held, in part in reliance upon it, that there was a good arguable case that the transactions which had resulted ultimately in the property becoming held by the offshore trustees constituted transactions defrauding creditors within the meaning of section 423 of the 1986 Act. It ordered that the injunction obtained by Joanna before Mr Lemos's bankruptcy restraining the sale of the property should remain in place for the bankruptcy estate pending the outcome of proceedings under section 423, provided that such proceedings were issued within four weeks, which was done.\n- 38. Those proceedings, which were issued after having first obtained the permission of the court, are being pursued for the benefit of the bankruptcy estate and it is said that any recoveries would be payable to the trustees. Those proceedings remain at an early stage. The offshore trustees have served a holding defence in which they said that they attended to apply for a Beddoe order. Instead of doing so, Mrs Lemos was\n- 815/22, 123988 22-50073 Doc 761-3 Fileeds8/400/22emoElpheries/108/126/1224/16/10/224/1 Page 8 of 41 joined as a defendant to proceedings on her own application. She has now served a defence to the claim. which means that it will now be contested.\n\t- 39. It is assumed that in the light of Mrs Lemos's joinder to the proceedings, and because they have failed to plead a positive case or to seek a Beddoe order, the offshore trustees intend to adopt a neutral stance in relation to the section 423 claim.\n\t- 40. I have been taken to an order that was made by Deputy Registrar Schaffer on 9 March 2017 which records that the trustees no longer intend to pursue an application for directions as to their conduct of the claim, but instead maintain a neutral position in relation to it, and that they remain parties to the claim only for the purposes of: (a) giving disclosure; (b) providing such assistance to the court as it thinks fit; and (c) being bound by the order of the court upon the final disposal of the claim. It was on that basis that Mrs Lemos was joined as third defendant to the section 423 claim and the offshore trustees were not required to file an amended defence.\n\t- 41. Mr Lemos is now a discharged bankrupt, although there remain significant debts in the bankruptcy estate and to date there have been very limited recoveries. The trustees have an agreement with Joanna which is said to require them to consent to their substitution as claimants or else to their joinder as co-claimants with her. The ability to use the Withers documents in the possession of the trustees is said to be of significant importance in relation to the section 423 proceedings, whether they are pursued by Joanna or by the trustees.\n\t- 42. I have been taken through the relevant statutory provisions in some detail. Section 305 (2) of the 1986 Act sets out the general functions of a trustee in bankruptcy. The function is to get in, realise and distribute the bankrupt's estate in accordance with the following provisions of Chapter IV. In the carrying out of that function and in the management of the bankrupt's estate, the trustee is entitled, subject to those provisions, to use his own discretion.\n\t- 43. Section 313 provides that the trustee may exercise any of the powers specified in Parts 1 and 2 of Schedule 5. Those powers include, by paragraph 2 of Schedule 5, power to bring, institute or defend any action or legal proceedings \"relating to the property comprised in the bankrupt's estate\"; and, by paragraph 2A, which was added subject to transitional provisions by the Enterprise Act 2002, power \"to bring legal proceedings under sections 339, 340 or 423\".\n\t- 44. The applicants assert that the property in Hampstead is an asset of the bankrupt. Mr Lord emphasises the distinction between paragraphs 2 and 2A of Schedule 5 and, in reliance upon that distinction, he argues that the Hampstead property is not \"property comprised in the bankrupt's estate\".\n\t- 45. Ms Toube submits that at the heart of a trustee's power is the ability to recover assets of the bankrupt for the benefit of his or her creditors, although she acknowledges that sections 339 and 340 (relating to transactions at an undervalue and preferences) are to be found in Chapter V and not Chapter IV of the Insolvency Act 1986, and that section 423 is to be found in Part XVI of the Insolvency Act.\n\t- 46. The assets comprising the bankruptcy estate vest in the trustee pursuant to section 306 of the Act. Section 283 identifies those assets which comprise the bankrupt's estate. So far as material, subsection (1) provides that subject as follows, \"a bankrupt's estate for the purposes of any of this Group of Parts comprises: (a) all property belonging to or vested in the bankrupt at the commencement of the bankruptcy, and (b) any property which, by virtue of any of the following provisions of this Part, is comprised in that estate or is treated as falling within the preceding paragraph\".\n\t- 47. Ms Toube accepts that section 423 does not fall within \"this Part\", ie Part IX (Bankruptcy), and therefore an asset the subject of a claim under section 423 cannot be treated as part of a bankrupt's estate by virtue of section 283(1)(b).\n\n#### 815/22, 12:38:00 22-50073 | Doc 761-3 | Fileek08/16/22emErtterpel48/1620/16.10/2047 | Page 9 of 41\n\n- 48. Subsections (2) and (3) of Section 283 contain exceptions to the general scope of Section 283 (1). Section 283 (4) provides that references in any of this Group of Parts to property, in relation to a bankrupt, include references to any power exercisable by him over or in respect of property except insofar as the power is exercisable over or in respect of property not for the time being comprised in the bankrupt's estate; and a power exercisable over or in respect of property is deemed for the purposes of any of this Group of Parts to vest in the person entitled to exercise it at the time of the transaction or event by virtue of which it is exercisable by that person (whether or not it becomes so exercisable at that time).\n- 49. Section 436 (1) defines \"property\" widely as including \"money, goods, things in action, land and every description of property, wherever situated and also obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property.\"\n- 50. As a result of section 283 (4) and section 436 (1) it is said that the property of the bankrupt which vests in the trustee includes any claims which he has to assets that are properly regarded as comprised in bankrupt's estate.\n- 51. The obligations of a trustee include a duty to take possession of documents and records relating to the bankrupt's affairs, even though subject to privilege belonging to the bankrupt or third parties. That is provided for by section 311 (1), which states that:\n\n\"The trustee shall take possession of all books, papers and other records which relate to the bankrupt's estate or affairs and which belong to him or are in his possession or under his control (including any which will be privileged from disclosure in any proceedings).\"\n\n52. That obligation is fortified by section 312 which provides (amongst other things) that:\n\n\"The bankrupt shall deliver up to the trustee possession of any property, books, papers or other records of which he has possession or control and of which the trustee is required to take possession.\"\n\n53. That is expressed to be without prejudice to the general duties of the bankrupt under section 333. That section provides, by subsection (1), that:\n\n\"The bankrupt shall -\n\n- (a) give to the trustee such information as to his affairs,\n- (b) attend on the trustee as such times, and\n- (c) do all such other things\n\nas the trustee may for the purposes of carrying out his functions under any of this Group of Parts reasonably require.\"\n\n- 54. By subsection (3), subsection (1) applies to a bankrupt even after his discharge; and subsection (4) provides that if the bankrupt without reasonable excuse fails to comply with any obligation imposed by section 333, he is guilty of a contempt of court and liable to be punished accordingly.\n- 55. Section 363 (2) provides that without prejudice to any other provision in that Group of Parts, an undischarged bankrupt or a discharged bankrupt whose estate is still being administered under Chapter IV of that Part shall do all such things as he may be directed to do by the court for the purposes of his bankruptcy or, as the case may be, the administration of that estate.\"\n- 56. Against that statutory background, it is said to be the trustees' position that: (1) they are able to make use of Mr Lemos's solely privileged documents that relate to his assets in any proceedings, whether against Mr Lemos, Mrs Lemos or third parties or indeed otherwise for the purposes of the bankruptcy, because they\n\n# 8/15/22, 12:16ABE 22-50073 Doc 761-3 Fileeds08007/22mosEpaterredHO8627/28202020201 have succeeded to his privilege; and (2) to the extent that any of the Withers documents are subject to Mr and Mrs Lemos's joint privilege, the trustees are able to deploy such documents in proceedings against\n\n- 57. There is said to be a fundamental difference between the one hand and the individual respondents on the other as to what Avonwick decides. As a result, it is said to be necessary to conduct a detailed analysis of that case, both at first instance before Mr Justice Arnold and on appeal.\n- 58. The facts in Avonwick are complicated but, in summary, the bankrupt, Mr Shlosberg, had applied for an injunction to restrain a firm of solicitors, Dechert, from continuing to act both for the major creditor in his bankruptcy, Avonwick, and for his trustees in bankruptcy. Despite the bankruptcy, Avonwick was continuing proceedings against Mr Shlosberg alleging conspiracy.\n- 59. The basis for Mr Shlosberg's application was that a large quantity of documents had been provided to Dechert by Mr Shlosberg's former solicitors and had been reviewed by a team at Dechert that was acting both for the trustees in bankruptcy and for Avonwick. It was said by Mr Shlosberg that, as a result, the solicitors for Avonwick, the principal creditor, had seen a large number of documents which were subject to privilege belonging to him. He contended that since the solicitors acting for an adverse party in litigation against him had had sight of privileged documents to which they were not entitled, that firm should be ordered to cease to act for Avonwick.\n- 60. There were three categories of documents in relation to which issues of privilege arose. The first were category A documents. Those related to an asset of the bankrupt, namely earlier litigation regarding an attack upon Mr Shlosberg's cat, which had resulted in a County Court judgment in Mr Shlosberg's favour prior to his bankruptcy. Those were documents in which Mr Shlosberg had the sole privilege, and they related to an asset in his bankruptcy, namely the benefit of the County Court judgment in Mr Shlosberg's favour.\n- 61. The second category of documents was the category B documents. Those related to liabilities of the bankrupt, namely statutory demands that had been served by Avonwick upon Mr Shlosberg and his company, Webinvest Limited, which demands had been followed by a successful bankruptcy petition against Mr Shlosberg and a successful winding-up petition against Webinvest.\n- 62. The third category was the category C documents. Those related to the same liabilities as those identified in category B, namely a claim brought by Avonwick against Mr Shlosberg and Webinvest in 2014, which claim had resulted in judgment debts which had been the subject matter of the statutory demands and petitions referred to in category B. Both the category B and C documents were documents in which Mr Shlosberg had joint privilege with Webinvest.\n- 63. Mr Justice Arnold held that the trustees acquired the benefit of Mr Shlosberg's privilege in the category A documents because those related to an asset of the bankrupt, namely the County Court judgment debt arising from the attack upon Mr Shlosberg's cat. But he held that the trustees did not acquire the benefit of Mr Shlosberg's joint privilege in relation to the category B and C documents because those related to the liabilities of the bankrupt.\n- 64. Having concluded that the privilege in relation to the category B and C documents had remained with Mr Shlosberg, it followed that Avonwick's solicitors had seen material to which Avonwick was not entitled. On that basis, Mr Justice Arnold held that it was appropriate to injunct Dechert from continuing to act for Avonwick.\n- 65. Ms Toube submits that Mr Justice Arnold's conclusion in relation to the category A documents was the result of his application of authority which is said to be a conventional application, and particularly the principle derived from the decision of Mr Justice Goff in the Crescent Farm (case previously cited), which had subsequently been applied by Mr Justice Peter Gibson in the case of Re Konigsberg [1989] 1 WLR 1257.\n\nthem, or either of them.\n\n8/15/22, 12:16Abe 22-50073 Doc 761-3 Fileeds08/167/22mosEptererd+08/2624 Page 11 of\n\n66. In summary, it is said that Mr Justice Arnold's conclusion proceeded by way of the following line of reasoning:\n\n(1) A successor entitled to an asset will acquire the privilege of its predecessors in documents relating to that asset.\n\n(2) It is well established that the trustee is a successor entitled to the asset and therefore requires the privilege of the bankrupt in documents relating to that asset.\n\n(3) As Mr Justice Peter Gibson held in Re Konigsberg at 1267F, the trustee is no ordinary third party. In him are automatically vested all the assets of the bankrupt divisible among his creditors, including the right to the property of the bankrupt transferred by a settlement voidable under section 42 [now section 339]. A successor entitled to property succeeds to and is entitled to assert the privilege of a predecessor in title (citing Crescent Farm) and so stands in the predecessor's shoes to that extent. It would be very odd if the trustee, entitled as he is to, and possessing, the information cannot use it in the performance of his duties in seeking to recover the bankrupt's property.\n\n(4) In Re Konigsberg the court therefore held that the bankrupt's wife was not able to preclude her husband's trustee in bankruptcy from relying, in proceedings to challenge the transfer of the matrimonial home into the wife's sole name, upon evidence from the solicitor who had previously acted for the bankrupt and his wife. The court held that joint clients cannot assert privilege against one another, and since the bankrupt's privilege had devolved on to the trustee, it was appropriate to treat the trustee as being in the shoes of the bankrupt for the purposes of privilege in proceedings against the joint client.\n\n(5) Mr Justice Arnold applied the same principles at first instance in Avonwick to the category A documents.\n\n67. It is said by Ms Toube:\n\n(1) That the judge's review of the authorities on the devolution of privilege began with Crescent Farm and Re Konigsberg. Mr Justice Arnold quoted in paragraph 72 the following extract from Crescent Farm at 562F to G, which Mr Justice Arnold called the \"Crescent Farm principle\":\n\n\"In my judgment it is clearly established that legal professional privilege of a predecessor in title does enure to the benefit of his successor. This is so stated in Halsbury's Laws of England ... and in my judgment correctly so. The point was first clearly settled in Minet v Morgan (1873) 8 Ch App 361. It is unequivocally expressed in the second part of the headnote. The judgment does not say so quite specifically but, in my view, when analysed the case clearly so decided.\"\n\n(2) At paragraphs 73 to 75, Mr Justice Arnold discussed and quoted from Mr Justice Peter Gibson's decision in Re Konigsberg. It was common ground that Re Konigsberg was based upon the Crescent Farm principle because the privilege related to an asset which had vested in the trustee in bankruptcy: see paragraph 75. The judge returned to this point in paragraph 99 and also in paragraph 106, in which Mr Justice Arnold noted the submission that it was essential for a trustee in bankruptcy to be able to assert or waive the bankrupt's interest: and Mr Justice Arnold pointed out that:\n\n\"In this jurisdiction the trustee will often be able to rely upon the Crescent Farm principle.\"\n\nThe judge expressly noted the effect of Re Konigsberg where the advice related to assets at paragraph 113.\n\n(3) At first instance in Avonwick the application of the Crescent Farm principle to cases where a trustee in bankruptcy acquires relevant assets as successor to the bankrupt by virtue of the vesting provisions in the Insolvency Act 1986 was, in the submission of Ms Toube, properly conceded by counsel for Mr Shlosberg:\n\n#### 8/15/22, 12:26:00 22-50073 | Doc 761-3 | Fileds(08/07/22mos(2016)162/16.it/2024 | Page 12 of\n\n\"70. Counsel for Mr Shlosberg accepted that, where title to property passes to a trustees in bankruptcy as part of the bankrupt's estate, then the benefit of privilege in documents recording the requesting and the giving of legal advice relating to, or documents created for the dominant purpose of proceedings concerning, that property passes to the trustee. He submitted, however, that this principle original applied where there was some property other than the documents recording the privileged information ... Although he did not concede that the County Court judgment was property within section 436 (1), he did not advance any argument to the contrary.\"\n\nMs Toube also refers to paragraph 126 where, in dealing with alternative arguments that were advanced on behalf of the respondents by which they asserted that no property passed in relation to privileged documents, the judge said that, as counsel for Mr Shlosberg accepted, that was \"subject to the operation of the Crescent Farm principle as in the Konigsberg case\". It is said that at paragraph 132 Mr Justice Arnold accepted the submission by counsel for Mr Shlosberg.\n\n(4) The judge accordingly held that the Crescent Farm principle applied where the trustees in bankruptcy had acquired the relevant property to which the privileged documents related; see paragraphs 106 and 108. Mr Justice Arnold therefore accepted the argument that privilege in the category A documents (those which related to assets of the bankrupt) had vested in the trustee. Since Mr Shlosberg had succeeded in obtaining judgment in his favour before his bankruptcy, the judgment debt was property within the bankrupt's estate which passed to the trustees in bankruptcy; and since the trustees were the successors in title to the property to which the advice related (that is to say the judgment debt), they had obtained the benefit of the privilege.\n\n(5) Although Ms Toube acknowledges that it is fair to say that Mr Justice Arnold expressed a certain degree of doubt (at paragraph 132 of his judgment) in reaching that conclusion, he nevertheless concluded that the trustees had acquired the benefit of the bankrupt's privilege with respect to the category A documents. In other words, it is said that Mr Justice Arnold accepted that the concession made by counsel for Mr Shlosberg had been rightly made. It was a constant theme of Ms Toube's submissions that the issue was not one of abrogation of privilege, but rather of the privilege with the asset to which it related; and that the trustees could assert the privilege or waive it as they chose.\n\n- 68. The judge took a quite different view in relation to the category B and C documents because they related to liabilities and not to assets of the bankruptcy. It is said by Ms Toube that it is that aspect of the case which has put the cat among the pigeons in the insolvency world and has caused something of a volcanic eruption in that field.\n- 69. In relation to the liability documents, Mr Justice Arnold concluded that the privilege had remained with Mr Shlosberg. He held that Mr Shlosberg's obligations under judgment debts were not property that vested in his trustees under section 306. Thus, the distinction between the category A documents on the one hand, where privilege had vested in the trustees, and C documents, where it had not, was due to the fact that the latter documents related to advice given in relation to claims against Mr Shlosberg and which had resulted, in the category C documents at least, in judgments having been obtained against him rather than in his favour.\n- 70. Whilst the trustees in bankruptcy were successors in title to the judgment that Mr Shlosberg had obtained prior to his bankruptcy, as this was an asset, and the privilege in the category A documents related to that property, the property which vested in the trustees did not include Mr Shlosberg's liabilities or obligations. Accordingly, since the property which vested in the trustees did not encompass judgment debts against the bankrupt, because they were liabilities of the bankrupt, they were not his successors in title in relation to those matters.\n- 71. Mr Justice Arnold also rejected an alternative argument that privilege was itself property within the meaning of the Insolvency Act which vested in a trustee in bankruptcy, as well as the further argument\n- 8/15/22, 12:58BB 22-50073 Doc 761-3 Filleds(08/107/22mosEpterrevHO8623/100il)2024 Page 13 of that if the pieces of paper themselves vested in the trustee, then so too did the privilege in the information contained on that paper.\n\t- 72. Ms Toube submits that Mr Justice Arnold's first instance decision, at least in relation to privilege in the category A documents, was an orthodox statement of the law and a familiar application of the Crescent Farm principle. She submits that the decision in relation to the category B and C documents is more problematic; but she emphasises that that is not the subject of the instant application and that the trustees reserve their right to make submissions on those points in a higher court should that become necessary.\n\t- 73. It is said that the first instance decision in Avonwick held that documents relating to assets, but not the liabilities of the bankrupt, could be obtained and used by the trustee in bankruptcy free from any privilege in favour of the bankrupt. Confirmation that that was the correct analysis of the first instance judgment in Avonwick, it is said, can be found in the most recent edition (the fifth) of Matthews and Malek on Disclosure. At paragraph 11.07, the editors cite the first instance decision in Avonwick in support of the proposition that:\n\n\"The right to exercise privilege in relation to an asset will pass to the successor in title of that asset. But it will not pass to the successor in title of the documents concerned merely by reason of a transfer of title to those documents.\"\n\nMs Toube submits that that is a correct statement of the proposition for which the first instance decision in Avonwick is authority.\n\n- 74. In the course of her reply, Ms Toube also relied upon a commentary on the first instance decision in Avonwick by Ms Shekerdemian. In the course of that commentary, Ms Shekerdemian had stated that the Crescent Farm principle did not depend on acquisition by the successor in title of property in the documents recording the privileged information, but on acquisition by the successor in title of some other property to which the legal advice or litigation related.\n- 75. The practical consequence of the judgment was said to be that it was now highly unlikely that a trustee in bankruptcy would easily be able to get his hands on documents over which the bankrupt could have asserted privilege prior to the bankruptcy unless those documents related to, or arose directly out of, property which had vested in the trustee in bankruptcy. According to the commentary, that was manifestly the case in relation to the category A documents. The benefit of the County Court judgment given in the proceedings in which Mr Shlosberg had obtained judgment plainly was property within the meaning of section 436(1) of the 1986 Act because it could be realised and distributed.\n- 76. In her commentary Ms Shekerdemian is said to have attached a distinction to privilege attaching to documents which did not arise out of vested property, but which were nonetheless directly relevant to the bankrupt's financial affairs or other property. Privilege in those documents remained with the bankrupt even though ownership of the pieces of paper would have vested in the trustee in bankruptcy.\n- 77. According to the commentary by Ms Shekerdemian, the touchstone was therefore the nature of the thing that underlay the document. If that thing was property within the meaning of section 436(1), in the sense that it was something realisable or a marketable right, then the trustee in bankruptcy would be able to claim the benefit of any privilege in the document relating to that property, but not otherwise.\n- 78. Ms Shekerdemian's commentary concluded by referring to sections 333 and 336 of the Insolvency Act, and pointing out that they had not been considered by Mr Justice Arnold in his judgment. Whether the operation of those sections would prove to have been modified or tempered as a consequence of the judgment remained to be seen.\n- 79. I observe that that commentary was founded squarely upon Mr Justice Amold's decision at first instance in Avonwick and without the benefit of the subsequent decision of the Court of Appeal and without considering the implications of that later Court of Appeal decision on Mr Justice Arnold's first instance\n- 8/15/22, 12:09:00 22-50073 | Doc 761-3 | FileetsBeldo7/22mosEatterestHO8M2024100002024 | Page 14 of decision. It was following the judgment at first instance in Avonwick, but before the decision on appeal, that the trustees had provided certain of the documents obtained from Withers to Joanna.\n\t- 80. Ms Toube then went on to consider the Court of Appeal's decision. Both Avonwick and Mr Shlosberg's trustees in bankruptcy were granted permission to appeal against Mr Arnold's decision to restrain Dechert from continuing to act for Avonwick. The scope of the appeal appears from page 1078 of the report in the Weekly Law Reports. In the course of his address, Mr Lord drew attention to the grounds of appeal, which was as follows:\n\n\"The judge had erred in law in rejecting the alternative argument that if, as he had held, the only way in which privilege could be transferred was if it was in respect of legal advice relating to some other property transferred to the joint trustees, then he ought to have concluded that a judgment obtained by the bankrupt against the creditor became on his bankruptcy a liability of the estate constituting 'property' within section 436 of the 1986 Act. In those circumstances, the judge ought to have held that the privilege in any legal material relating to the liability passed to the joint trustees pursuant to the principle in the Crescent Farm case.\"\n\n81. Mr Lord also drew attention to the respondent's notice by which the bankrupt had asked the court to uphold the judge's order on the following different or additional grounds among others:\n\n\"(1) The judge had correctly held that, save in relation to a limited part of the material in issue, the materials in question could not be brought within the Crescent Farm principle.\n\n(2) The Crescent Farm case was wrongly decided, and was incompatible with the subsequent recognition of legal professional privilege as a fundamental human right. In light of that recognition, the only manner in which rights of privilege could devolve on the trustees in bankruptcy was by way of a statutory derogation either by express words or implication necessarily following from express words. The judge had been correct to decide that the bankrupt had retained his rights of privilege in relevant materials.\"\n\n- 82. Mr Lord invited the court to note that at paragraph 61 Sir Terence Etherton, the Master of the Rolls, recorded that counsel had not in oral argument pursued the third ground of appeal concerning the meaning and application in the present case of the word \"obligations\" in the definition of \"property\" in section 436 (1).\n- 83. The Court of Appeal proceeded to dismiss the appeal and to uphold Mr Justice Arnold's order. The leading judgment was given by Sir Terence Etherton, the Master of the Rolls, with whom Lady Justice Gloster and Lady Justice Sharp both agreed.\n- 84. Ms Toube submits that the Court of Appeal's decision did not alter the conclusions reached at first instance in Avonwick in relation to the privilege attaching to documents relating to the assets of the bankrupt; nor, it is said, did it alter the position in relation to the privilege attaching to documents relating to the bankrupt's liabilities.\n- 85. Ms Toube submits that it is important to note, as is said to be clear from the headnote of the report, that the Court of Appeal was considering waiver of the bankrupt's privilege as against third parties and not as between the bankrupt and the trustee. At an early point in its judgment, the Court of Appeal said, at paragraph 21, that it was not concerned on this appeal with the documents in category A. The court noted that the judge had decided in favour of the trustee in relation to that category of documents in paragraph 30. Rather, Ms Toube points out, the argument was about the trustee's challenge to the judge's decision in relation to the category B and C documents, which the Court of Appeal defined at paragraph 21 as \"the Documents\".\n\n#### 8/15/22, 12:13Age 22-50073 Doc 761-3 FilledsOBlib7/22mosEpterevHO8M37(2Bril)2024 Page 15 of\n\n- 86. Throughout her oral submissions, Ms Toube emptrasised that the Court of Appeal was only dealing with the category B and C documents, and not those within category A. She emphasised that the Crescent Farm principle was concerned not with the abrogation of privilege but with the passing of privilege. The Court of Appeal in Avonwick was concerned only with the category B and C documents, which related to a claim by Avonwick which would have reduced the amount of the claims in Mr Shlosberg's bankruptcy.\n- 87. Joanna Lemos's claim was one by a creditor to an asset of the bankrupt which would fall into his estate. Mr Justice Arnold's decision, by contrast, was one relating both to a claim to an asset of the bankrupt which would fall within the bankrupt's estate and to a claim by a creditor against the bankrupt. It was that which led Mr Justice Arnold to distinguish between the category A and the category B and C documents; and nothing decided by the Court of Appeal is said to have affected that distinction.\n- 88. Ms Toube submits that because of that, the Court of Appeal cannot be taken to have reached a different view, still less can it be taken to have overturned the decision of Mr Justice Arnold, in relation to the category A documents, nor can it be taken to have disapproved of the application of the Crescent Farm principle, or still less to have overruled Re Konigsberg by implication, in cases which relate to privilege in documents relating to assets as opposed to liabilities.\n- 89. It is said that the Court of Appeal did not overrule Re Konigsberg, but instead distinguished it. Reliance is placed upon the statement of the reporter in the headnote that both Crescent Farm and Konigsberg were \"distinguished\". There is no suggestion that they were not followed, still less overruled.\n- 90. The main argument advanced by Avonwick on appeal was that the category B and C documents, and any privilege attaching to the information contained in them, were property which formed part of Mr Shlosberg's estate which vested in the trustees on their appointment: see paragraph 52.\n- 91. Avonwick's alternative argument was that the effect of Section 311 was that, by necessary implication, the trustees were entitled to use the category B and C documents for the purpose of fulfilling their functions. The functions in relation to those documents were said to include the taking of steps that would potentially reduce the claims on the estate by assisting Avonwick its claims against third parties and thereby reducing its claim in Mr Shlosberg's bankruptcy: see paragraph 52.\n- 92. The Court of Appeal noted the importance of the policy that trustees in bankruptcy should be able to get in, realise and distribute the bankrupt's estate in accordance with the statutory scheme at paragraphs 40 to 42; but it ultimately concluded that when looking at privilege in relation to documents concerning liabilities of the bankruptcy, this policy was trumped by the competing policy that a litigant should be able to consult a lawyer in privacy.\n- 93. The court did not accept Avonwick's contention that privilege was a species of property that passed to a trustee. It rejected both the argument that privilege was an interest arising out of or incidental to the category B and C documents as a matter of interpretation of section 436(1) and also the alternative argument that privilege was a power exercisable over the documents because Mr Shlosberg could refuse to disclose them and so fell within the meaning of Section 283(4): see paragraphs 57 and 58.\n- 94. Those conclusions, which turned upon the interpretation of particular provisions of the Insolvency Act 1986, are said to say nothing about the Crescent Farm principle as it had been applied to documents relating to assets by Mr Justice Arnold. In setting out his reasons, the Master of the Rolls said, at paragraph 63, that he considered it to be clear that:\n\n. \" ... on the proper interpretation of the relevant provisions of the 1986 Act, privilege is not property of a bankrupt which automatically vests in the trustee in bankruptcy.\"\n\n95. The Master of the Rolls pointed to the fact that the only provisions relied upon by the trustees were sections 436(1) and 283(4), which did not expressly treat privilege as property of the bankrupt which automatically transferred to the trustee.\n\n#### 8/15/22, 12:29Age 22-50073 Doc 761-3 FileetsBellio7/22mosEptemblo3025/12010002024 Page 16 of\n\n- 96. Ms Toube points out that those sections are not part of the reasoning underlying the Crescent Farm principle as it relates to assets. Assets certainly do vest in the trustees in bankruptcy under Section 306; and, as Mr Justice Arnold had held, because the assets passed, so did the privilege in the documents relating to them.\n- 97. Ms Toube submits that the discussion in the Court of Appeal was directed at the argument that privilege is itself a species of asset which vests in a trustee, which argument Mr Justice Arnold had also rejected, rather than the question whether privilege might vest in the trustee if it related to assets that had already vested in the trustee\n- 98. Having set out the decisions in Crescent Farm and Konigsberg in paragraphs 59 and 60, the Master of the Rolls considered at paragraph 64 whether Crescent Farm and Re Konigsberg and other cases affected his reasoning. It is said that he concluded that neither Crescent Farm nor Konigsberg stood in the way of his conclusion.\n- 99. Again, Ms Toube submits that the issue before the court was whether Avonwick was correct in its argument that privilege itself was property that passed under the Insolvency Act, as distinct from the question whether it passed to the person who succeeded to the asset to which the privilege related, which was not an issue that is said to have been before the Court of Appeal. The Court of Appeal's conclusion was the same as that reached by Mr Justice Arnold, namely that privilege was not itself property.\n- 100. Ms Toube submits that it is significant that the Court of Appeal did not overturn or disapprove of Crescent Farm, but merely distinguished it in relation to the issue it was considering, namely the privilege in documents in categories B and C, which related only to liabilities. The Court of Appeal noted at paragraph 64 that Crescent Farm was not an insolvency case, and that it turned on its particular facts.\n- 101. Ms Toube says that that is correct: the Crescent Farm principle, as accepted by Mr Justice Arnold, is that a person who succeeds to an asset also succeeds to privilege in documents which relate to that asset. It was on the basis that the trustees had succeeded to the County Court judgment, that they acquired the privilege in the category A documents. That analysis, unlike Avonwick's argument in the Court of Appeal in relation to the category B and C documents, did not depend upon a special interpretation of the insolvency legislation.\n- 102. Ms Toube points out that in relation to Re Konigsberg, the Court of Appeal was careful to say that it was \"not correct on the point presently under consideration\": see paragraph 64. She submits that \"the point under consideration\" was the argument that privilege in the category B and C -- in other words, in the liability - - documents was a species of property caught within the Insolvency Act. She submits that the court was not considering the application of the Crescent Farm principle and Re Konigsberg to category A-type or asset documents. She submits that the fact that Re Konigsberg was not overruled demonstrates that it remains good law insofar as it applies the Crescent Farm principle in the context of documents relating to assets.\n- 103. Where the case of Re Konigsberg is said by Ms Toube to be in error was in holding that the trustee in bankruptcy stepped into the shoes of the bankrupt in relation to privilege generally. That was and remains the case in relation to asset documents, but it is no longer the case in relation to liability documents.\n- 104. When he came to make his submissions, Mr Lord differed as to the nature of \"the point presently under consideration\", as to which it was said by the Court of Appeal that Re Konigsberg was incorrect. Mr Lord submits that \"the point under consideration\" which was held not to be correct was that identified at the end of paragraph 60, namely that the privilege was a joint privilege of the bankrupt and his wife as to which the trustee, having stepped into the shoes of the bankrupt, was entitled to say that the privilege could not be maintained against the trustee as joint privilege holder.\n- 105. Ms Toube accepts that the Court of Appeal considered Avonwick's alternative argument that the effect of section 311(1) of the Insolvency Act 1986 was that, by necessary implication, the trustees were entitled to\n\n## 8/15/22, 12:29:29 22-50073 Doc 761-3 Fileet Colley Botter Porter Coller (2010 Coll 2024 Page 17 of use the category B and C documents for the purpose of fulfilling their functions. She acknowledges that, in agreement with Mr Justice Arnold's interpretation of section 311(1), the Court of Appeal rejected Avonwick's argument on that point. Both Mr Justice Arnold and the Court of Appeal rejected the view that section 311(1) should be interpreted as giving trustees in bankruptcy a power to waive privilege, which argument is said to have nothing to do with the Crescent Farm principle.\n\n106. There is said to have been no discussion of Crescent Farm in this part of the judgment. Whilst there was reference to Re Konigsberg in this part of the judgment (at paragraph 82), that is said to have been in the context of a discussion of the decision of Mr Stanley Burnton QC, sitting as a deputy High Court judge in Re Cook [1989] BPIR 881, during which Sir Terence Etherton MR said that the deputy judge in that case had wrongly relied upon Re Konigsberg in concluding that:\n\n> \"... the power and the right to waive privilege in relation to the estate and affairs of a bankrupt pass to his or her trustee in the same way that his or her assets and the right to possession of the books, papers and other records of the bankrupt relating to his or her estate and affairs pass to the trustee under section 311.\"\n\n- 107. Ms Toube acknowledges that the Court of Appeal did overrule Re Cook. She says that that case cannot stand with the Court of Appeal's decision on this point, which is that privilege is not, of itself, an asset that passes to a trustee.\n- 108. Ms Toube points to the fact that at paragraph 69 the Master of the Rolls said that counsel for Mr Shlosberg had accepted that the trustee could use privileged documentation and information contained in it for the statutory purpose of getting in and realising the bankrupt's estate. Counsel had submitted, and the judge had concluded, however, that the trustee could only use such documentation and information in a way that would not amount to a waiver of privilege.\n- 109. Ms Toube says that that appears to be a reference to paragraphs 105 of the first instance judgment, in which Mr Justice Arnold had expressed some qualifications about the use that a trustee could make of documents. But she invites this court to note that Mr Justice Arnold concluded paragraph 106 with the reminder that:\n\n\" ... in this jurisdiction, the trustee will often be able to rely upon the Crescent Farm principle.\"\n\n- l 10. As a result, Ms Toube submits that the passage relates only to use of documents in relation to liabilities, as opposed to assets, in relation to which the Crescent Farm principle still provides the answer.\n- 111. Ms Toube points out that, finally, the Court of Appeal was plainly influenced in reaching its conclusions (at paragraph 85) that it was not the function of a trustee to assist a creditor in pursuing a claim against third parties that would result in the reduction or elimination of that creditor's claim into the bankruptcy estate. Rather, the Court of Appeal emphasised that a trustee's function, in accordance with section 305(2), was to get in, realise and distribute the estate; that is to say, to realise assets. She points out that part of the function of a trustee in bankruptcy is to bring a claim under section 423 of the Insolvency Act.\n- I 12. Ms Toube submits that, as a result of Avonwick at both levels, it is clear that, on a proper application of the Crescent Farm principle, Mr Lemos's sole privilege in documents relating to his assets, although not his liabilities, has passed to the trustees and they can use the documents free of that privilege.\n- 113. Ms Toube also submits (at paragraph 57 of her skeleton argument) that that conclusion is in line also with general principles of privilege and confidentiality. I find it unnecessary to consider that aspect of Ms Toube's submission. In my judgment, this appeal falls to be determined by reference to the principles laid down by the Court of Appeal in Avonwick as they are properly to be understood.\n\n#### 8/15/22, 12:16Abe 22-50073 Doc 761-3 Fileeds08007/22mosEparterestHO8623/160002024 Page 18 of\n\n- 1 14. In the course of her oral submissions, Ms Toube firdicated the applicants' agreement to the general statements at paragraph 29 of Mr Lord's skeleton argument and paragraphs 39 to 40 of the skeleton argument of Ms Shekerdemian. Those statements relate to privilege being a fundamental right and how it is to be abrogated. But Ms Toube says that that tells us nothing about the answer to the question in the instant case because this case is not concerned with the abrogation of privilege but merely with its passing to the trustees in bankruptcy.\n- 115. For all those reasons, Ms Toube submits that where the trustees have obtained documents to which Mr Lemos's sole privilege attaches, on a proper application of the Crescent Farm principle, as endorsed in Re Konigsberg and also by Avonwick, as successors in title to Mr Lemos in relation to all of his assets, any documents containing privileged information in relation to those assets, as opposed to his liabilities, can both be obtained and used by the trustees, including in proceedings against Mr Lemos or Mrs Lemos or against any third parties.\n- 116. Ms Toube submits that even if the trustees are wrong in their reading of Avonwick (which she says they are not), there can be no question of Mr Lemos asserting that there is confidentiality in the documents as against the trustees in proceedings brought by them against Mr Lemos. She points out that Avonwick was only concerned with the use of documents against third parties. On any view, it remains the case that privileged documents can be used against the bankrupt. Mr Lemos cannot assert privilege as against the trustees; and the trustees were entitled to deploy documents covered by Mr Lemos's sole privilege in proceedings against him.\n- 117. She submits that it would be extraordinary if trustees who had in their possession documents covered by the bankrupt's privilege that supported claims under section 423, as well as claims under sections 339 and 340, were not able to rely upon such documents in transaction avoidance proceedings against third parties. That conclusion is also said to make sense from a practical perspective.\n- 118. She says that if Mr and Mrs Lemos are right, the effect of Avonwick would be that the trustees could look at documents relating to assets of the bankrupt, but could not bring claims in which those documents would be relied upon. That would render section 311 of no real practical effect. It is said that trustees in bankruptcy are in enough difficulty as a result of the decision in Avonwick relating to liabilities without also tying their hands in recovering assets of the bankrupt as well.\n- 119. In relation to documents subject to the joint privilege of Mr and Mrs Lemos, Ms Toube submits that it is the absence of confidentiality between the parties that one party cannot assert privilege against the other. Citing from the decision of Mr Justice Rix in The Sagheera [1997] 1 Lloyds Reports 160 at page 165, Ms Toube submits that it follows that if the Withers documents are covered by the joint privilege of Mr and Mrs Lemos, Mrs Lemos cannot assert it either against Mr Lemos or against his successor in title to that privilege, namely the trustees. In the light of Avonwick, it is said that privilege in documents relating to the assets pass to the trustees, who stand in Mr Lemos's shoes and can use the documents in any proceedings against both him and Mrs Lemos.\n- 120. Those were Ms Toube's submissions in support of her application.\n- 121. Mr Lord began his submissions, both written and oral, by emphasising certain matters which he said were likely to be uncontroversial (and with which Ms Toube did agree in her oral submissions). They are as follows:\n\n(1) Privilege is a right to resist the compulsory disclosure of information. In the case of legal professional privilege, it applies to documents which contain legal advice or were created for the dominant purpose of obtaining information or advice in connection with the litigation.\n\n(2) Privilege is a fundamental human right which is protected both under Article 6 and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.\n\n8/15/22, 12:08:00 22-50073 | Doc 761-3 | Fileeblecklider | 22mostantereal | 08/25/02/2014 | Page 19 of\n\n(3) Although privilege can be abrogated by statufe, this requires express words or necessary implication.\n\n(4) In the absence of express language or necessary implication to the contrary, the courts presume that even the most general words were intended to be subject to the basic rights of the individual.\n\n122. Mr Lord submits that the decision of the Court of Appeal in Avonwick is binding authority for the following propositions:\n\n(1) That privilege is not property of the bankrupt which automatically vests in his trustee in bankruptcy; see paragraph 63 of the Master of the Rolls' judgment. It is said to follow from this that the decision of Mr Justice Peter Gibson in Re Konigsberg, which proceeded on the basis of a concession by counsel that the bankrupt's privilege had devolved on to his trustee, was no longer good law on this point. Reference is made to paragraph 64 of the Master of the Rolls' judgment.\n\n(2) Although the trustee in bankruptcy is entitled under section 311 of the Act to take possession of documents containing information that is privileged to the bankrupt, and to use such documentation and the information contained in it for the statutory purpose of getting in and realising the bankrupt's estate, he cannot do so in a way that would amount to a waiver of privilege without the bankrupt's consent: see paragraph 69 of the Master of the Rolls' judgment.\n\n- 123. Further, Avonwick is also said to be authority for the proposition that the use of privileged documents to assist a third party in a claim against another person falls outside the statutory function of a trustee in bankruptcy as stated in section 305 (2): see paragraphs 84 and 85 of the Master of the Rolls' judgment.\n- 124. In the present case, the trustees are said to seek the court's direction on the question of whether they are entitled to deploy the documents without the consent of Mr and/or Mrs Lemos in proceedings against the trustees of the Kalliopi Lemos 1994 settlement and/or Mrs Lemos relating to the property (and on the assumption that the documents are privileged to Mr Lemos either solely or jointly with his wife). The answer to that question is said plainly to be no. Avonwick is said to apply. There is said to be no basis upon which it can be distinguished.\n- 125. It is said that even if Avonwick can somehow be distinguished so that Mr Lemos's consent is not required, the trustees would still need Mrs Lemos's consent in the case of documents that are subject to joint privilege. It is said that where privilege is held jointly, it can only be waived by the joint holders acting together. It is said that the trustees have not identified any provision of the Insolvency Act or principle of general law which would entitle them to override joint privilege.\n- 126. In his supplemental skeleton argument, Mr Lord referred to the argument of Ms Toube that, notwithstanding the Court of Appeal's decision in Avonwick, a bankrupt's privilege in documents that relate to assets of the estate, but not its liabilities, devolves upon the trustee in bankruptcy under the principle in the Crescent Farm case.\n- 127. Mr Lord says that Ms Toube seeks to distinguish between documents relating to assets of the bankruptcy and documents relating to other matters, such as liabilities. This new argument is said to be misconceived. It is based on a distinction between documents relating to assets of the bankrupt and those which relate to his liabilities which simply did not feature in the Master of the Rolls' judgment. There is said to be no justification for it. If there was such a distinction, it is said to be one which the Master of the Rolls would have drawn expressly.\n- 128. Mr Lord pointed to paragraph 5 of the Court of Appeal's judgment as identifying the issue on the appeal: it was whether privilege attaching to information and documents of a bankrupt were property which vested in the trustees in bankruptcy, and what use might be made of such information and documents by the trustees.\n\n#### 8/15/22, 12:20:20:22-50073 | Doc 761-3 | Fileds08/107/22mosEptereratio08157/20100000 | Page 20 of\n\n- 129. Mr Lord submits that it is clear that no distinction Can be drawn between documents relating to assets and those relating to liabilities. At paragraph 50 of his judgment, the Master of the Rolls is said to have identified the issues before the court. He expressly disagreed with the view taken by Mr Justice Arnold at first instance at paragraphs 67 and 68 that the case was about whether privilege in the documents had been transferred to Mr Shlosberg's trustees, rather than about its abrogation. He went on to say that from Mr Shlosberg's perspective, the only question was whether or not the statutory bankruptcy code was that he had involuntarily been deprived of his fundamental right to assert his privilege in the information contained in \"the Documents\". The Master of the Rolls said that he could see no reason why the principles in the Derby Magistrates case, the Simms case and the Morgan Grenfell case should not apply in answering that question. That is a reference to R v Derby Magistrates' Court ex parte B [1996] AC 487; R (Morgan Grenfell & Co Limited) v Special Commissioners of Income Tax [2002] UKHL 21, [2003] 1 AC 563; and R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115. Ms Toube points out that paragraph 50 refers to \"the Documents\" with a capital letter D, that is to say the category B and C documents, and does not extend to the category A documents.\n- 130. Applying the principles laid down in the three House of Lords authorities cited, which, it is said by Mr Lord, tellingly received no mention in the trustees' skeleton argument, the Court of Appeal said that the effect of the statutory bankruptcy code was not that Mr Shlosberg had been involuntarily deprived of his fundamental right to assert his privilege in the information contained in the documents. Again, Ms Toube says that that statement is expressly limited to the category B and C, and does not extend to the category A, documents.\n- 131. Mr Lord submits that, contrary to what the trustees claim, the Court of Appeal did hold that Re Konigsberg, which purported to apply the Crescent Farm principle in a bankruptcy context, was wrongly decided. He says that at paragraph 64 the Master of the Rolls noted: (1) that the decision of Mr Justice Peter Gibson in that case was based on a concession by counsel for the wife that the privilege had devolved on to the trustee in bankruptcy; and (2) that it predated the Derby Magistrates, the Simms, and the Morgan Grenfell cases, which were said to set out \"the proper approach\".\n- 132. In other words, it is said that the Master of the Rolls clearly took the view that Mr Justice Peter Gibson would have reached a different conclusion had he applied the principles laid down in those cases, all of which emphasise the absolute and sacrosanct nature of legal professional privilege, rather than proceeding on the basis of a concession by counsel.\n- 133. The Master of the Rolls concludes (at paragraph 64) by saying that the decision in Re Konigsberg is:\n\n\" ... not correct on the point presently under consideration.\"\n\n- 134. \"The point under consideration\" is said to be that identified at paragraph 50, namely whether the statutory insolvency scheme expressly or impliedly abrogates the bankrupt's privilege. Further, Mr Lord submits that at paragraph 82 the Master of the Rolls disapproved of the decision in Re Cook which had applied Re Konigsberg. The privileged information in issue in that case was not confined to information relating to liabilities of the bankrupt, but had included information relating to his assets. Mr Lord submits that the unqualified disapproval of Re Cook demonstrates that there was no distinction in the mind of the Master of the Rolls between documents relating to assets and those relating to liabilities.\n- 135. It is said that no significance can be attached to the fact that the appeal in Avonwick was not concerned with the category A documents; that is to say, those relating to the litigation in the County Court regarding an attack on Mr Shlosberg's cat. That was because there was no appeal against that aspect of Mr Justice Arnold's decision, no doubt because the issue was not regarded as very important. As a result, the Court of Appeal did not need to consider it. Had it considered the issue, Mr Lord submits that the Court of Appeal would doubtless have concluded that Mr Justice Arnold's decision that Mr Shlosberg's trustees had acquired the benefit of his privilege in the category A documents was wrong.\n\n#### 8/15/22, 12:08:00 22-50073 | Doc 761-3 | FileetsBatterestHO8MzqZldBillJ20202024 | Page 21 of\n\n- 136. Mr Lord submits that the Court of Appeal's judgment makes it clear that Mr Justice Peter Gibson's judgment in the Konigsberg case, which was a judgment relating to assets, was wrong. He says that the Crescent Farm principle is nothing to the point. That case was not a bankruptcy case. It only says that privilege is not lost or waived when an owner of property voluntarily passes a document to his successor in title to that property. There is nothing in the Crescent Farm decision that offends against the fundamental right of privilege or against Articles 6 or 8 or against the judgments in the trilogy of House of Lords cases upon which emphasis was placed by the Master of the Rolls in Avonwick and which underlie the heart of the Master of the Rolls' decision.\n- 137. Mr Lord submits that it is, in any event, important to note that Mr Justice Arnold reached his decision on the category A documents purely on the basis of a concession by counsel for Mr Shlosberg. In the light of the Court of Appeal's decision, it can now be seen that that concession was wrongly made. Moreover, at paragraph 132, Mr Justice Arnold is said to have himself expressed doubt about the correctness of the concession. Mr Justice Arnold's reasoning does not involve the distinction which the trustees now seek to draw between privileged information relating to assets and that relating to liabilities.\n- 138. As the Court of Appeal is said to have made clear in Avonwick, the issue in the present case turns on an application of the principles laid down in the trilogy of House of Lords decisions in Derby Magistrates, Simms and Morgan Grenfell. Those principles do not provide any justification for drawing a distinction between privileged information which relates to assets and that which relates to liabilities.\n- 139. In the Derby Magistrates case, the House of Lords held that legal professional privilege was to be upheld in all cases as the predominant public interest, even where the holder of the privilege ceases to have any recognisable interest in maintaining it. On the facts of that case, the privilege was held to outweigh even the public interest in ensuring that all relevant evidence was available to a defendant accused of murder. Mr Lord says that it is harder to think of a stronger example.\n- 140. At pages 508H to 509A, Lord Taylor of Gosforth CJ said that he was of the opinion that no exception should be allowed to the absolute nature of legal professional privilege once established. A similar observation is to be found in the speech of Lord Lloyd of Berwick.\n- 141. Accordingly, the public interest in ensuring that a trustee in bankruptcy is able to carry out his function of getting in, realising and distributing the bankrupt's assets, as discussed by the Master of the Rolls in Avonwick at paragraphs 40 to 42, however great that is, does not justify even a limited exception to the absolute nature of privilege. There is no balancing of interests. In that regard, Ms Toube accepted that a reference to the balancing of interests in her written skeleton argument (at paragraph 50) was an aberration.\n- 142. The Simms and the Morgan Grenfell cases are said by Mr Lord to make it clear that, whilst legal professional privilege can be abrogated by statute, that requires either express words or necessary implication. In the absence of either of these, the courts presume that even the most general words were intended to be subject to the basic rights of the individual.\n- 143. The Court of Appeal's clear view in Avonwick is said to be that none of the relevant provisions in the insolvency legislation can be read as abrogating the bankrupt's privilege. For the same reason, section 283 (4) cannot be construed so as to extend the trustees' right to assert privilege, whether by necessary implication or otherwise. In any event, the right to assert privilege is a negative right to withhold disclosure; it is not a right exercisable over or in respect of property.\n- 144. The trustees seek to get round the effect of these authorities by contending that they are able to rely on the Crescent Farm principle, which is said to operate independently from the insolvency legislation. Mr Lord submits that is misconceived. The Court of Appeal in Avonwick distinguished Crescent Farm (at paragraph 64) on the basis that it was not an insolvency case. That is plainly a relevant distinction.\n\n#### 8/15/22, 12:03ANE 22-50073 Doc 761-3 FileetsOBMio7/22mosEarteresdHO8M3020100002020 Page 22 of\n\n- 145. Crescent Farm involved the sale of land by the first defendant to the second defendant and the voluntary disclosure by the former to the latter of privileged legal advice. All Crescent Farm decided was that the second defendant, as successor in title to the land, was able to maintain the privilege in the advice as against a third party, namely the claimant. That is said to be quite different from what happens in the case of a bankruptcy. The assets of the bankrupt vest in the trustee by operation of law pursuant to section 306(1) of the Act. The only question that arises is whether that or any other relevant provision of the Insolvency Act has the effect of involuntarily depriving the bankrupt of his fundamental right of privilege,\n- 146. The decision of the Court of Appeal in Avonwick is, according to Mr Lord, binding authority that it does not. Although the trustee has a right to use the privileged material for the purposes of carrying out his statutory function, he cannot do so in a way which waives privilege without the bankrupt's consent.\n- 147. There is therefore said to be no scope for the Crescent Farm principle to operate in an insolvency context. The concession made by Mr Shlosberg's counsel before Mr Justice Arnold to the contrary is said to be wrong. Even if there were scope for the application of the Crescent Farm principle, that is said to provide no basis for saying that a successor in title can waive the privilege he has inherited from his predecessor without the latter's consent, let alone that he can use the privileged information against him. Privilege is a negative right to restrain production. Crescent Farm decides no more than that where a predecessor in title has voluntarily disclosed privileged information about the asset transferred to his successor, such disclosure does not constitute a waiver of privilege.\n- 148. Mr Lord then addresses the nature of the claim under section 423. He submits that the Crescent Farm principle only applies to privileged information relating to a specific asset that has been acquired. In order to be able to invoke that principle, the trustees have to identify an asset which is vested in them under section 306(1). In the Avonwick case, that was the County Court judgment in relation to the assault upon the cat that had vested in Mr Shlosberg's trustees in bankruptcy.\n- 149. In the present case, it is said that the applicants cannot identify any specific asset to which privilege can attach. It cannot be the Hampstead property itself because that was never vested in Mr Lemos to begin with and it is now vested in the offshore trustees. Nor can the asset be the shares in Panagia, the company which previously owned the property and which were transferred into the settlement, because that company has been dissolved.\n- 150. All there is is a potential claim under section 423 of the Act, which, as matters presently stand, the trustees have not even decided to bring yet. Even if they were to bring such a claim, they would not be able to say that they were bringing it as a successor in title to Mr Lemos. He never had any claim against his wife or the trustees of the settlement prior to being made bankrupt, so the trustees cannot be said to be claiming to stand in his shoes.\n- 151. Furthermore, Mr Lord submits that a claim under section 423 is not concerned with assets which can properly be characterised as forming part of the estate in bankruptcy which it is the trustees' function to get in. That is because:\n\n(1) Section 423 is not part of Chapter IV of Part IX of the Act, so the bringing of a claim under section 423 is no part of the function of a trustee in bankruptcy under section 305 (2). Mr Lord points out that Chapter IV of Part IX comprises sections 305 to 335 and does not even include sections 339 or 340, relating to transactions at an undervalue and preferences in an insolvency context, still less section 423, which is not confined to cases of insolvency.\n\n(2) Rather, section 423 appears in Part XVI of the Act, entitled \"Provisions against debt avoidance\". A claim under that section can be brought even if there are no insolvency proceedings on foot.\n\n(3) A section 423 claim is not one relating to property comprised within the bankrupt's estate, as is recognised by the contrast in language between paragraphs 2 and 2A of Schedule 5 (previously cited).\n\n#### 8/15/22, 12:08:00 22-50073 | Doc 761-3 | FileetsBellior/22mosEpaterrend+08823/12010/2024 | Page 23 of\n\nRather, it is a personal claim which may be brought not just by insolvency office-holders but by anyone who is a victim of the transaction: see section 424 (1).\n\n(4) If there are formal insolvency proceedings on foot, a victim needs the court's permission to bring a claim under section 423. If such a claim were concerned with assets that could properly be characterised as forming part of the insolvent's estate, then the section would have required a victim to seek the consent of the office-holder rather than of the court.\n\n(5) The remedy under section 423 (2) is a discretionary one and section 423 (3) prescribes the conditions to be met before the court may grant relief.\n\n(6) The court has wide powers under section 423 (2) and Section 425 with regard to relief. The relief granted on a section 423 claim will not necessarily involve the transfer of assets to the office holder, still less any vesting. Indeed, there is nothing in sections 423 to 425 that require a victim who has successfully sued under section 423 to pass on any recoveries to the office holder.\n\n(7) The language of section 423 is very different from the language of section 42 of the Bankruptcy Act 1914, corresponding to section 339 of the 1986 Act, with which Re Konigsberg was concerned.\n\n- 152. Finally, Mr Lord says, the documents which the trustees wish to deploy on the section 423 claim are clearly not confined to documents relating to particular assets, let alone assets that form part of the estate. Indeed, the trustees principal focus appears to be on documents relating to the Revenue investigation between 1994 and 2001. Those are said to be documents which relate to liabilities of the former bankrupt and are therefore caught by the decision of Appeal in Avonwick, even on what is said to be the trustees' erroneous interpretation of that decision.\n- 153. For the second respondent, Ms Shekerdemian adopted Mr Lord's submissions. In relation to Avonwick, she developed a further six short points:\n\n(1) Counsel in the Court of Appeal in Avonwick was not seeking to draw any distinction between liabilities and assets: see paragraph 58 of the Court of Appeal's judgment.\n\n(2) There is no logical or principled reason to distinguish between liabilities and assets. The trustee in bankruptcy is concerned with both assets and also liabilities.\n\n(3) Section 283 (4) does not assist the applicants. If that subsection were intended to extend to privilege, it would have said so expressly: see the trilogy of House of Lords cases cited and relied upon in Avonwick by the Court of Appeal.\n\n(4) By differentiating between liabilities and assets, and by asserting that no privilege attaches to asset documents, the applicants are attacking the Master of the Rolls' conclusion that to deprive a holder of privilege, there must be an express provision or necessary implication in the relevant legislation. That is said to be all the more so when the privilege extends to a third party claim, as is engaged in the present case.\n\n(5) Paragraph 71 of the Court of Appeal's judgment is a statement of general application, not confined in any way to liability documents.\n\n(6) The Court of Appeal made it clear that Re Konigsberg was wrong on the point in issue. The point in issue was the second ground of the decision in Konigsberg. It is said that the Master of the Rolls so found at paragraph 64 of his judgment. If there were any ambiguity about what was said at paragraph 64, it is said to be resolved in favour of the respondents by the Master of the Rolls' observations at paragraph 82 dealing with the authority of Re Cook. That case was expressly said to have been wrong because the deputy judge in that case had been wrong in following Mr Justice Peter Gibson's earlier decision in Re Konigsberg.\n\n#### 8/15/22, 12:18 PM 22-50073 Doc 761-3 Fileed: 08/10/22 Mostinategread+08/12/10 Page 24 of\n\n- 154. Ms Shekerdemian submitted that the rationale of Esal (Commodities) Limited (No. 2) [1990] BCC 708 was explained at paragraph 79 of the Master of the Rolls' judgment. It was concerned with the deployment of material which was subject to a duty of confidence because of the manner in which the material had been obtained, namely by way of application under the statutory provisions in the Insolvency Act. Cases such as Re Esal were not concerned with the deployment of material that was subject to a pre-existing duty of confidence arising from legal professional privilege.\n- 155. Ms Shekerdemian addressed the nature of a section 423 claim. She said that it was a claim which was personal to whoever had the standing to bring it and was not exclusive to insolvency office-holders. Assets the subject of a claim only vested in the recipient.\n\nThe distinction between such a claim and one to property comprised in the bankrupt's estate already was recognised by the difference in the wording of paragraphs 2 and 2A of Schedule 5 to the 1986 Act. A section 423 claim presupposes that the respondent has already divested himself of assets and not that he still owns them. The remedy was a discretionary one; and there was no entitlement to that remedy even if all of the components of a section 423 claim were made out. There could be no assumption that any section 423 claim would necessarily result in the recovery of an asset that should have been vested in the trustee in bankruptcy.\n\n- 156. Ms Shekerdemian submitted that no amount of statutory vesting could have the effect of divesting Mr Lemos of his right to assert privileged documents. She pointed out by reference to passages in the Derby Magistrates Court case that legal professional privilege survives even when the holder of that privilege has no continuing recognisable interest in asserting it. Although Lord Nicholls seems to have taken a different view on that aspect of the case, in that respect he was in the minority and the majority took a different view, as was apparent from passages cited to me from the speeches of Lord Taylor and Lord Lloyd.\n- 157. Ms Shekerdemian submitted that the Derby Magistrates Court case established that even where an asset was vested in the trustee in bankruptcy, the privilege attaching to communications affecting that asset did not disappear. The only limited qualification to that principle was the inroad made by section 311(1), but that inroad was a very limited one and did not allow a trustee in bankruptcy to deploy privileged documents in a manner which would amount to a waiver of privilege.\n- 158. That analysis was said to be broadly consistent with the judgment of Mr. Justice Arnold at first instance at paragraphs 127 to 128, referring back to paragraphs 84 to 87. It was also consistent with the analysis of the Court of Appeal at paragraph 71.\n- 159. In her reply Ms Toube identified five questions which the court had to ask in relation to the effect of the Avonwick decision. They were:\n\t- (1) What did Avonwick decide at first instance about documents relating to assets?\n\t- (2) Was its decision in that regard overruled by the Court of Appeal?\n\n(3) As a result of Avonwick, does the Crescent Farm principle still apply in bankruptcy? In other words, in relation to asset documents, do the trustees in bankruptcy have the privilege and can they waive it?\n\n(4) If there are documents about assets that have passed to the trustees under section 311, can the trustees waive privilege in those documents?\n\n- (5) Whether documents relating to the Hampstead property are covered by the Crescent Farm principle.\n- 160. Ms Toube invited the court to answer those questions as follows:\n\n#### 8/15/22, 12:26ABE 22-50073 DOC 761-3 Filedeld8167/22mosEpteredd08627/282/160iL2024 Page 25 of\n\n- 161. First, Mr Justice Arnold decided that the Crescent Farm principle is that where a successor in title obtains an asset, it also obtains privilege in documents relating to that asset or waive that privilege as it chooses. Mr Justice Arnold decided that that principle applies in bankruptcy when the successor in title to the assets is the trustee in bankruptcy. The trustee in bankruptcy can therefore assert or waive any privilege held by the bankrupt in category A documents. There was therefore no problem that the solicitors (Dechert) had seen the category A documents.\n- 162. However, Mr Justice Arnold also decided that the Crescent Farm principle did not apply to any documents other than those relating to an asset. It was therefore the case that the trustees could not assert or waive any privilege held by the bankrupt in the category B and C documents. There was therefore a problem, because Dechert had seen those documents, and they could not continue to act for Avonwick. There was therefore a difference between the documents relating to assets within category A and the documents relating to liabilities within categories B and C.\n- 163. Secondly, that decision was not overruled by the Court of Appeal in relation to the category A documents. Those documents were not in issue before the Court of Appeal and the Court of Appeal did not consider the Crescent Farm principle insofar as it concerned documents which related to an asset.\n- 164. There were only two arguments that were considered by the Court of Appeal. The first was whether, as a matter of interpretation of section 436 of the Insolvency Act, privilege was a freestanding item or species of property. It held that non-asset documents were not property for the purposes of section 436.\n- 165. The second matter that was ruled upon by the Court of Appeal was whether section 311, when properly interpreted, provided by necessary implication that a trustee in bankruptcy could use privileged documents. The Court of Appeal answered that question in the negative.\n- 166. Ms Toube submits that neither of those issues had anything to do with the Crescent Farm principle in relation to asset documents. The Court of Appeal said nothing about that, nor did it say anything about the category A documents or about what Mr Justice Arnold had held in relation to them.\n- 167. Ms Toube submitted, on the third question, that the Crescent Farm principle did still apply in bankruptcy. She submitted that it had been applied by Mr Justice Arnold at first instance and the Court of Appeal had said nothing about it, still less had the Court of Appeal overruled the application of the Crescent Farm principle in bankruptcy cases.\n- 168. As to the fourth question, Ms Toube submitted that the documents that had been provided to the trustees under section 311 could be used by them and they could waive privilege in relation to those documents. So far as the documents related to assets in the bankruptcy, this was a general rule that applied in all bankruptcies by virtue of the Crescent Farm principle, including this one.\n- 169. So far as issue 5 was concerned, the relevant documents in the present case related to the Hampstead property and that property constituted an asset in the relevant sense. It was therefore the trustees in bankruptcy who could either assert or waive privilege in the asset documents.\n- 170. Ms Toube submitted that on the Crescent Farm principle, privilege enured to the benefit of a trustee in bankruptcy as successor in title to the related asset and it was the trustee in bankruptcy alone who was entitled to waive privilege in relation to the documents. She submitted that the criticisms of Mr Justice Arnold had no validity in relation to privilege attaching to asset documents. Paragraphs 65 to 67 of the Master of the Rolls' judgment were simply dealing with the correct approach to issues of statutory construction. In relation to the category A documents in Avonwick, the trustees in bankruptcy must have been able to waive privilege because otherwise Dechert could not properly have seen the category A documents.\n- 171. At paragraph 106 of his judgment at first instance in Avonwick, Mr Justice Arnold had directly linked the Crescent Farm principle to the ability of a trustee in bankruptcy either to assert or to waive the privilege\n\n# 8/15/22, 12:16AMe 22-50073 Doc 761-3 Fileeds08/07/22mosEparterestHO8623/2020/2024 Page 26 of of the bankrupt. He had said in terms that it should be borne in mind that in this jurisdiction the trustee would often be able to rely upon the Crescent Farm principle.\n\n- 172. Where a trustee in bankruptcy, as successor in title to an asset, acquired documents in relation to that asset, he acquired the privilege in those documents and could assert or waive that privilege as the trustee chose. That principle applied in bankruptcy and the result was that in Avonwick there was no problem that Dechert had seen the category A documents. The true distinction to be drawn is between documents relating to assets and those relating to liabilities.\n- 173. The respondents had to say that the Court of Appeal must have overruled Mr. Justice Arnold in relation to the Crescent Farm principle and to the category A documents, but that was not a proper analysis of the Court of Appeal's decision. It was very important to look at the context in which the Court of Appeal were saying what they did.\n- 174. It was clear from paragraph 21 that the Court of Appeal was only talking about the category B and C documents. The category A documents and any issues associated with them were not before the Court of Appeal. The Court of Appeal only had to consider the question of liability documents because the category A documents were not before them.\n- 175. Paragraph 52 of the Court of Appeal's judgment made it clear what arguments were being considered and those were the only two issues with which the Court of Appeal was concerned. Paragraphs 51 to 64 dealt with the issue of privilege as property and the argument that it was was rejected at paragraph 63. It was in that context that the Master of the Rolls went on to say what he did at paragraph 64.\n- 176. The second argument was whether section 311 had overridden the right to privilege. That was discussed at paragraphs 65 to 83. However, the applicants in the present case place no reliance on section 311. They were relying instead upon the Crescent Farm principle. If privilege passed to the trustee in bankruptcy, as the applicants maintain, then no question of abrogation of privilege, as distinct from its passing, arose at all.\n- 177. What was wrong with Re Cook was said to be apparent from Mr Justice Amold's decision at paragraph 77. The problem with that case was that the deputy judge had not identified any property to which the privileged information related. The criticism fell squarely within the privilege was not in itself property.\n- 178. The observations of the Court of Appeal at paragraph 82 were concerned only with the construction of section 311 and were not addressing documents concerning assets. The last line of paragraph 82 of the Master of the Rolls' judgment was said to make that clear, where he said that the deputy judge had not considered the proper interpretation of section 311 by reference to the correct principles. That was why Re Cook was wrongly decided.\n- 179. So, Ms Toube submits, the Court of Appeal did not overrule Mr Justice Arnold. It said nothing about the category A documents.\n- 180. The Court of Appeal had identified and addressed both arguments at paragraph 86, which is to be taken as identifying the parameters of the Court of Appeal's decision. The Court of Appeal did not say that Mr Justice Arnold was wrong in relation to the category A documents. The Court of Appeal did not overrule Re Konigsberg. If it had wished to do so, it would have made it clear that it was overruling Re Konigsberg on the second point of the decision. Nor did the Court of Appeal say in terms that the concession made by counsel had been wrong. Paragraph 64 of the judgment merely recorded that the concession had been made by counsel.\n- 181. It was said to be clear from, for example, paragraph 71 of the Court of Appeal's judgment that the case was about providing documents to third parties: see also paragraph 77. In the instant case, the court was\n\n#### 8/15/22, 12:26AMe 22-50073 | Doc 761-3 | Fileeds08/07/22mosEptererati08/8024 | Page 27 of\n\nconcerned with the entitlement of the trustess in bankruptcy to use documents in relation to the bankrupt. The applicants were saying that there was no confidence, and thus no privilege.\n\n- 182. The Esal case did not help the respondents because it was merely concerned with the effect of contractual undertakings given as to the use of documents. The trustees could use the documents as against Mr Lemos and, if right on the effect of the Avonwick decision, the trustees in bankruptcy could use documents relating to the bankrupt's assets for any purposes of the bankrupt.\n- 183. Ms Toube submitted that property was an asset and the fact that the claim was made under section 423 made no difference. The Court of Appeal in the Lemos v Lemos litigation had held that it was well arguable that Mr Lemos had had an interest in the property in 1994 which he had disposed of for the purpose of putting the Hampstead property beyond the reach of creditors. It was part of the trustee in bankruptcy's functions to bring a section 423 claim.\n- 184. The definition of \"property\" in section 436 was a very wide one. It extended to contingent and future assets, and therefore extended to a claim under section 423. One of the orders the court could make under section 425 was one requiring the property to be vested in the trustee in bankruptcy. That was similar to the form of relief that could be ordered under section 339 of the Insolvency Act. The making of a claim under section 423 was all part of the trustees' functions and related to an asset in the bankrupt's estate. Although the permission of the court was required by a claimant other than the insolvency office holder where an insolvency had occurred, that was no different from the requirement of leave from the court for a contributory to issue misfeasance proceedings under section 212 of the Act by virtue of subsection (5).\n- 185. Those were the submissions on the principal issue of the meaning and effect of Avonwick. It is now just after 1.05. I will resume this judgment at 2.05 and set out my decision on that point, before going on to consider the scope and potential application of section 363. So I will adjourn now until 2.05.\n- 186. JUDGE HODGE QC: My decision on the privilege issue.\n- 187. It is important to bear in mind the nature of the application that came before Mr Justice Amold and the context in which the decision on legal professional privilege arose in the Avonwick case and thus the context in which the matter came before the Court of Appeal.\n- 188. The issue was whether the solicitors (Dechert) should be permitted to continue to act for the principal creditor of Mr Shlosberg, as well as for the bankrupt's trustees in bankruptcy. For those purposes, it mattered not whether privilege in documents about the litigation in the County Court regarding the attack on Mr Shlosberg's cat had passed to the trustee in bankruptcy. If Mr Shlosberg was not going to succeed in relation to the category B and C documents, the fact that Dechert had had access to documents concerning a judgment obtained in the County Court for damages for an assault upon Mr Shlosberg's cat was not going to tip the balance the other way.\n- 189. As Ms Toube has pointed out, the Court of Appeal made it clear at paragraph 21 of its judgment that they were not concerned on the appeal with the documents in category A. I therefore cannot regard the Court of Appeal's decision as directly authoritative on documents affecting assets such as those within category A.\n- 190. At paragraph 38 the Master of the Rolls acknowledged that Mr Shlosberg had issued a respondent's notice to uphold the judgment's order on additional ground. In my introductory observations I referred to the terms of that respondent's notice; but the Master of the Rolls made it clear that it was not necessary to set out the terms of that additional ground in his judgment.\n- 191. I turn first to consider the first instance judgement of Mr Justice Arnold.\n- 192. At paragraphs 65 through to 67, Mr Justice Arnold began by considering the correct approach to statutory construction in the context of the case before him. He said at paragraph 65 that in the Morgan Grenfell\n\n# 8/15/22, 12:58 Be 22-50073 - Doc 761-3 - Fileeds Beller 12.2mos Earter Jend 10882 1/2010 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 1 case the House of Lords had held that in the light of the nature of privilege, it should not be regarded as\n\nbeing abrogated by a statute unless such abrogation was by express words or necessary implication.\n\n- 193. At paragraph 66 he made it clear that in the instant case the respondents had not argued that privilege had been abrogated, but rather that it had been transferred to the trustees. Counsel for Mr Shlosberg had submitted that the involuntary transfer of privilege from the person entitled to it to someone else was tantamount to abrogation. But at paragraph 67 Mr Justice Arnold made it clear that he did not consider that the principles stated by the House of Lords in the Morgan Grenfell case were directly applicable to the present issue, although he accepted that the court should be cautious before concluding that a statutory provision had the effect of involuntarily transferring privilege from the beneficiary of the privilege to another person in the absence of express words.\n- 194. I am entirely satisfied that the Court of Appeal did not endorse that approach. At paragraph 50 the Master of the Rolls recorded that Mr Justice Arnold had said that he did not consider that the principles stated in the Morgan Grenfell case were directly applicable to the present case, from which he inferred that that was because Mr Justice Arnold had taken the view that the case was about whether privilege in the documents had been transferred to the trustees, rather than about its abrogation.\n- 195. The Master of the Rolls made it clear that he did not agree with that analysis. He observed that from Mr Shlosberg's perspective, the only question was whether or not the statutory bankruptcy code was that he had involuntarily -- and I stress the word \"involuntarily\" -- been deprived of his fundamental right to assert his privilege in the information contained in the documents. The Rolls could see no reason why the principles in the Derby Magistrates Court case, the Simms case and the Morgan Grenfell case should not apply in answering that question.\n- 196. I accept the point made by Ms Toube that the reference to \"the Documents\" referred to the category B and C documents, and not those in category A, but I cannot ignore the Master of the Rolls' rejection of Mr Justice Arnold's approach that the court was not concerned with the abrogation of privilege in the instant case. In my judgment the fact that, from the point of view of the bankrupt, the effect of Ms Toube's submissions is that, in relation to assets documents, the bankrupt is being involuntarily deprived of his fundamental right to assert his privilege in the information contained in the documents is, in my judgment, a factor that must be firmly borne in mind when considering the position in relation to assets documents, such as those which, in the Avonwick case, were held to have fallen within category A.\n- 197. Reverting to Mr Justice Arnold's decision, in summarising the respondents' arguments, at paragraph 68 Mr Justice Arnold recorded that, in the case of documents in category A, the proceedings had resulted in a judgment for damages in Mr Shlosberg's favour prior to the bankruptcy and that the judgment debt owed to Mr Shlosberg was property within section 436(1). He then said that, accordingly, the trustees had acquired the benefit of the privilege as successors in in title to that property.\n- 198. That of course was a mere recording of the relevant argument being advanced for the respondents. One needs to go on to consider what the response to that argument was.\n- 199. That is to be found at paragraph 70 of Mr Justice Arnold's judgment. Counsel for Mr Shlosberg is recorded as having accepted that where title to property passes to a trustee in bankruptcy as part of the bankrupt's estate, then the benefit of privilege in documents recording the requesting and the giving of legal advice relating to or documents created for the dominant purpose of proceedings concerning that property passes to the trustee.\n- 200. Counsel submitted, however, that principle only applied where there was some property other than the documents recording the privileged information. He submitted that the High Court judgment, which of course was a judgment against and not in favour of Mr Shlosberg, was not property within section 436(1). However, Mr Justice Arnold observed that, although he did not concede that the County Court judgment. which was a judgment in favour of Mr Shlosberg, was property within section 436(1), he did not advance\n- 8/15/22, 12:16ABC 22-50073 Doc 761-3 Filleds(08/107/22mosEpatterredHO8627/282/160iLl)2024 Page 29 of any argument to the contrary. So whether or not privilege in the category A documents related to an asset of Mr Shlosberg was not apparently argued before Mr Justice Arnold.\n\t- 201. At paragraphs 71 through to paragraph 97, Mr Justice Arnold referred to a number of authorities on the devolution of privilege, particularly in the context of bankruptcy, which he considered in chronological order.\n\t- 202. The first, which was not a bankruptcy case, was the Crescent Farm case. He recorded that Mr Justice Goff had held that the second defendant could assert privilege, as it had received the documents as the first defendant's successor in title to the land, and it was immaterial that it had received them prior to completion.\n\t- 203. All that Mr Justice Goff was doing was to decide a question as to whether the successor in title could assert privilege. He did not decide who could waive that privilege. He did not need to consider whether waiver could be exercised by the successor alone or whether he also required the consent of the original privilege holder. The case did not concern waiver of privilege but assertion of privilege.\n\t- 204. Mr Justice Arnold set out Mr Justice Goff's statement of the applicable principle in these terms:\n\n\" ... it is clearly established that legal professional privilege of a predecessor in title does enure for the benefit of his successor.\"\n\n- 205. There is nothing there about waiver of privilege and who is entitled to do that. Mr Justice Amold referred to the principle as \"the Crescent Farm principle\".\n- 206. At paragraph 73 Mr Justice Amold referred to Mr Justice Peter Gibson's decision in the Konigsberg case. He quoted the passage from Mr Justice Peter Gibson's judgment at pages 1266 to 1267 in full.\n- 207. At paragraph 75 Mr Justice Arnold recorded that it was common ground that in that passage Mr Justice Peter Gibson had based his decision upon the Crescent Farm principle, the relevant property being the husband's interest in the matrimonial home. That was said to have been sufficient to deal with the issue in that case. It did not appear that any argument had been advanced based on the definition of \"property\" in section 436(1) or based on section 283(4) of the 1986 Act.\n- 208. Mr Justice Arnold then went on to consider the decision in Re Cook and he made a number of comments on the reasoning of Mr Burnton QC, the deputy High Court judge. One of his comments was, as Ms Toube has pointed out, that although Mr Burnton had purported to apply the Konigsberg case, he had not identified the property to which the privileged information related, appearing to have regarded it as sufficient for that purpose that the privilege related to the bankrupt's financial affairs in general. He also recorded that Mr Burnton appeared to have accepted that privilege related to personal matters would not vest in the trustee.\n- 209. At paragraph 99 Mr Justice Arnold said that it was clearly established that the benefit of privilege in documents recording the requesting or giving of legal advice relating to or created for the predominant purpose of litigation concerning specific property passed together with title to that property. As the Konigsberg case showed, that principle applied in the context of a bankruptcy. But he said that one had to be careful when making statements like \"a trustee in bankruptcy is a successor in title for this purpose\". He said that a trustee certainly could be a successor in title for that purpose, but it did not necessarily follow that a trustee succeeded to the benefit of all privilege to which the bankrupt was entitled.\n- 210. Before turning to consider the respondents' arguments in detail, Mr Justice Arnold made some general observations at paragraphs 103 to 106. He took the starting point to be section 311(1). That showed that in enacting the 1986 Act, the legislature had addressed its mind to the question of privilege. It did not provide that the bankrupt's privilege should pass to its trustee, however. Rather, it provided that privilege\n\n### 8/15/22, 12:26 am 22-50073 | Doc 761-3 | Filled AR142 mostertend 10 642 (622) koul 2624) 2624 | Page 30 of\n\nwas not a bar to the trustee's exercise of his powers to obtain documents relating to the bankrupt's estate or affairs. If anything, that was said to suggest that the bankrupt might retain his privilege.\n\n- 211. As counsel for the respondents pointed out, however, the trustee might take possession of documents belonging to a third party. Counsel for the respondents suggested that it followed that the privilege might be that of the third party. Mr Justice Arnold said that might be so, but the point did not arise in the instant case and it was not necessary to decide whether it was correct.\n- 212. He then went on to deal with the Konigsberg case and he said that he agreed with Mr Justice Peter Gibson that it appeared to be implicit in section 311(1) that the trustee could use information contained in documents which he had taken possession of pursuant to section 311(1), including privileged documents, in the discharge of his statutory functions.\n- 213. He disagreed with Mr Justice Pumfrey in another case that it would therefore be anomalous if the trustee could not assert or waive privilege. He agreed with a Canadian judge that there was a difference between using information contained in privileged documents otherwise than for the purpose of proceedings and using it for the purpose of proceedings.\n- 214. That took him on to a more general question, which was the extent to which the trustee needed to be able to assert or waive the bankrupt's privilege in order properly to discharge his duties. Counsel for the respondents was said to have implied, even if he did not expressly submit, that it was essential for the trustee to be able to do that. A comparison with the position in Canada and Australia suggested that that was not so. Then Mr Justice Arnold added this:\n\n\"Furthermore, it should be borne in mind that in this jurisdiction the trustee will often be able to rely upon the Crescent Farm principle.\"\n\n- 215. In my judgment Mr Justice Arnold did consider that the Crescent Farm principle applied in relation to assets documents. However, it is clear that he had some reservations about that principle. At paragraph 108 he said that in his judgment it was clear that the Crescent Farm principle did not depend on acquisition by the successor in title of property in the documents recording the privileged information, but on acquisition by the successor in title of some other property to which the legal advice or litigation related. Again, it seems to me that he was there endorsing the Crescent Farm principle.\n- 216. At paragraph 126 there was a further apparent endorsement of the Crescent Farm principle, referring to the alternative submission of counsel for Mr Shlosberg that even if privilege would otherwise amount to property within section 436(1) or a power over property within section 283(4), it was excluded from the ambit of those provisions by the exception for property which was peculiarly personal to the bankrupt. Mr Justice Arnold referred to counsel's acceptance that that was subject to the operation of the Crescent Farm principle \"as in the Konigsberg case\".\n- 217. The position of the category A documents was considered at paragraphs 129 through to 132. Mr Justice Arnold recorded that counsel for the respondents had accepted that the subject-matter of the litigation in the County Court was peculiarly personal to Mr Shlosberg, but he had submitted that the judgment debt in favour of him was not peculiarly personal and was property within section 436(1) which vested in the trustees.\n- 218. At paragraph 132 Mr Justice Arnold said this:\n\n\"Given that the judgment vested in the trustees, counsel for the respondents submitted that it followed, applying the Crescent Farm principle, that privilege in the relevant documents also vested in the trustees. I confess to some doubt as to whether this necessarily follows; but since counsel for Mr Shlosberg did not argue to the contrary, I will accept counsel for the respondents' submission.\"\n\n8/15/22, 12:08:00 22-50073 | Doc 761-3 | Filleds08167/122mosquotejes0408627/622116.jpg1000000000000000000000000000000000000000000000000000000000000000000000000000000000000000 219. At paragraph 142 Mr Justice Arnold set out his conclusion:\n\n> \" ... I accept the respondents' third argument, but not the first, second or fourth arguments. Accordingly, I conclude that the trustees acquired the benefit of Mr Shlosberg's privilege with respect to the category A documents, but not the category B or C documents.\"\n\n- 220. What I take from that analysis of Mr Justice Arnold's first instance judgment as a whole is that Mr Justice Arnold did accept the application of the Crescent Farm principle in relation to asset documents, but he did so solely because the contrary was not argued, and with some reservation.\n- 221. Given that the Court of Appeal did not endorse Mr Justice Arnold's view that the involuntary transfer of privilege did not involve an abrogation of privilege, I consider that Mr. Justice Arnold's decision, insofar as it was a decision at all and not simply based on the way in which the case was argued before him, is no authority for the application of the Crescent Farm principle in personal insolvency cases; that it is no endorsement, on an authoritative basis, of Mr Justice Peter Gibson's approach in Konigsberg; and that it is not determinative of the issues I have to decide on the present application.\n- 222. I turn then to the Court of Appeal decision. In the light of the emphasis attached by the Rolls in the Court of Appeal to the trilogy of House of Lords cases, I remind myself of what was said by Lord Hobhouse in the Morgan Grenfell case.\n- 223. At paragraph 44 Lord Hobhouse said that the protection given by the common law to those entitled to claim legal professional privilege is a basic tenet of the common law. Lord Hoffmann said very much the same at paragraph 10 of the same case. That consideration seems to me to underlie the decision of the Court of Appeal in Avonwick.\n- 224. The Master of the Rolls considered the Crescent Farm principle and Re Konigsberg at paragraphs 59 and following. He regarded the Crescent Farm case as affirming that it was clearly established that privilege of a predecessor in title enures for the benefit of his successor. Thus a claim for privilege was upheld by Mr Justice Goff in the Crescent Farm case.\n- 225. The Master of the Rolls went on to consider the Konigsberg case at paragraph 60. He pointed out that Mr Justice Peter Gibson had refused the wife's application to exclude affidavit evidence of the solicitor instructed jointly on the sale of the matrimonial home on two separate grounds.\n- 226. The first was that the wife, by referring in an affidavit to correspondence with the solicitor and by exhibiting a letter from him, had waived privilege. That of itself was sufficient to justify Mr Justice Peter Gibson's decision in the case. There is no suggestion that that aspect of the decision was wrong.\n- 227. The Master of the Rolls then went on to record that the second ground was that the trustee in bankruptcy was a successor in title to the bankrupt in respect of all the assets of the bankrupt divisible among his creditors, including the right to property transferred by a settlement voidable under section 42 (equivalent to section 339 of the 1986 Act) and, following the Crescent Farm case, succeeded to and was entitled to assert the privilege of the bankrupt as a successor in title.\n- 228. The Master of the Rolls recorded that it appeared from page 1267B that counsel for the wife had accepted that the relevant privilege of the bankrupt had devolved on the trustee. Mr Justice Peter Gibson held that, the privilege being a joint privilege of the bankrupt and the trustee having stepped into the shoes of the bankrupt, the usual rule applied that one joint holder of the privilege, the wife, could not maintain it against the other joint holder, the trustee.\n- 229. At paragraph 63 the Master of the Rolls considered it to be clear that on the proper interpretation of the relevant provisions of the 1986 Act, privilege was not property of a bankrupt which automatically vested in the trustee in bankruptcy. Following the Morgan Grenfell and the Simms cases, the bankrupt could only be deprived of privilege if the 1986 Act expressly so provided or it was a necessary implication of the\n\n#### 8/15/22, 12:08:00 22-50073 | Doc 761-3 | Filledaldid7/122mosquotejesd408627/282/160il4bid14 | Page 32 of\n\nexpress language of its provisions. He indicated that all the relevant provisions were in general terms and did not expressly treat privilege as property of the bankrupt which automatically transferred from the bankrupt to the trustee, nor was that a necessary implication of the provisions.\n\n- 230. At paragraph 64 the Master of the Rolls said that Crescent Farm and Re Konigsberg did not stand in the way of his conclusions. He pointed out that the Crescent Farm case was not an insolvency case; in other words, he was saying that Crescent Farm did not automatically apply in insolvency. He could also have pointed out that Crescent Farm was concerned with assertion and not waiver of privilege.\n- 231. The Master of the Rolls went on to say that in Re Konigsberg it was conceded by counsel that the privilege had devolved on the trustee in bankruptcy. He then added that, more to the point, Re Konigsberg predated the Derby Magistrates Court case, the Simms case and the Morgan Grenfell case, which set out the proper approach, and so, unsurprisingly, Mr Justice Peter Gibson had not applied the principles in those cases. It was \"not correct on the point presently under consideration\".\n- 232. I do not consider that the Master of the Rolls' observation that the Konigsberg case was \"not correct on the point presently under consideration\" was confined to liabilities documents. In my judgment, the \"point under consideration\" was whether the premise upon which Mr Justice Peter Gibson's decision was founded was correct. That premise was that the trustee in bankruptcy had stepped into the shoes of the privilege held by the bankrupt.\n- 233. In my judgment, what the Master of the Rolls, on a true reading of his judgment, and particularly because of his reference to the trilogy of House of Lords cases, was intending to convey was that merely because the privilege is held by the bankrupt, the trustee does not automatically step into his shoes. That observation is not expressly directed to, and should not be confined as extending only to, liability documents. In my judgment it extends to documents even if they affect assets of the bankrupt.\n- 234. The Master of the Rolls made it clear, at paragraph 70, that the \"applicable principles\" were those stated in the Derby Magistrates case, the Simms case and the Morgan Grenfell case, keeping in focus the status of privilege as a fundamental right. The express terms of section 311 describe the duty of the trustee to take possession of the documents mentioned there, but it said nothing about their use by the trustee. It was necessarily implicit in section 311 that the trustee was to take possession of the documents, with the overriding function of getting in, realising and distributing the bankrupt's estate. It followed that he must, at the least, be entitled to look at the documents to obtain information relevant to those matters. But the Master of the Rolls went on to say, at paragraph 71, that it was not necessarily implicit that the trustee could waive the bankrupt's legal professional privilege in taking steps against third parties for the benefit of the bankrupt's estate, desirable as that might be from the point of view of the creditors.\n- 235. Echoing the words of Lord Hobhouse in Morgan Grenfell, the fact that it would have been sensible or reasonable for Parliament to have included such a power did not mean that it was necessarily implicit, having regard to the express language of the statute.\n- 236. At paragraph 82 the Master of the Rolls made it clear that, for the reasons he had given, the relevant principles were contained not in Re Konigsberg but in the Derby Magistrates case, the Simms case and the Morgan Grenfell case. Privilege was not property of the bankrupt which formed part of the bankrupt's estate which vested in the trustee. In Re Cook the deputy judge had not considered the proper interpretation of section 311 by reference to correct principles.\n- 237. I do not consider that the Master of the Rolls disapproved of the deputy judge's decision in Re Cook merely because he had not identified the property to which the privileged information related. In my judgment the Master of the Rolls' objection to Re Cook was more fundamental than that. The deputy judge had failed to have regard to the overarching fundamental human right implicit, and embodied, in the concept of legal professional privilege.\n\n#### 815/22, 12:26ABE 22-50073 Doc 761-3 Fileds1886677226105 Entoperal C632716012624 Page 33 of\n\n- 238. I accept that Mr Justice Arnold's decision on the category A documents was not expressly overruled, but that decision was not challenged on appeal to the Court of Appeal. That was because, for the reasons I have indicated, the status and importance of the category A documents was really neither here nor there.\n- 239. I am satisfied that the apparent decision of Mr Justice Arnold was founded on a concession by counsel for the applicant in that case on a matter which was irrelevant to the real issue which arose both on the application and on the appeal. I observe that Mr Justice Arnold himself was lukewarm about the appropriateness of the concession; but since the contrary had not been argued, he did not take issue with it since it did not in any way affect the outcome of the application before him.\n- 240. I am satisfied that insofar as Mr Justice Arnold took the view that Re Konigsberg applied in bankruptcy even to assets documents, then that decision is inconsistent with the later observations and reasoning of the Court of Appeal in Avonwick, and that it should not be followed.\n- 241. I am satisfied, for the reasons I have given, and in acceptance of the submissions for the respondents, that the Court of Appeal in fact overruled the second ground for Mr Justice Peter Gibson's decision in Re Konigsberg.\n- 242. I am satisfied, on a true reading and analysis of the Court of Appeal's decision in Avonwick, that the Crescent Farm principle has no application in bankruptcy even in relation to assets, as well as to liability, documents. I am satisfied that there should be no distinction between the two classes of documents. I am further supported in that decision by the consideration mentioned by Mr Lord that in some cases it will be difficult to draw a bright-line distinction between the two classes of documents.\n- 243. So turning to Ms Toube's concluding questions, Mr Justice Arnold in Avonwick, it seems to me, did not actually decide whether privilege passed with assets to a trustee in bankruptcy. He may have been prepared to accept that it did, on the basis of the Crescent Farm principle. But in my judgment, insofar as he did take that view, it is inconsistent with the Court of Appeal's later reasoning and observations because it does not attach sufficient importance to the need to professional privilege; and the effect of the application of the Crescent Farm principle to an involuntary transfer of assets to a trustee in bankruptcy is, as the Master of the Rolls recognised, to amount to an abrogation of the right of privilege.\n- 244. I in no way question the Crescent Farm principle in the case of a voluntary passing of property in assets, although I point out that even on that basis, Crescent Farm is no authority on the issue of who has the right to waive privilege in such documents, as distinct from asserting it. But I am satisfied that it has no application in the case of the passing of property to a trustee in bankruptcy; and that insofar as Mr Justice Peter Gibson held that it did, Re Konigsberg is wrongly decided. The decision itself can be justified on the first of the two grounds, that of waiver of privilege.\n- 245. For the reasons I have given, I am satisfied that if Mr Justice Arnold took the view that privilege passed to a trustee in bankruptcy in asset documents, then that decision has effectively been overruled by the Court of Appeal. I am satisfied that, as a result of the Court of Appeal's decision in Avonwick, the Crescent Farm principle has no continuing application in bankruptcy cases.\n- 246. Even if I were wrong on that, I would have held that the Crescent Farm principle has no application to documents relating to property which is the subject of a section 423 claim. I would have accepted the submissions of the respondents that any recovery on a section 423 claim is not a recovery of property comprised in the bankrupt's estate, even within the very wide definition of \"property\" in section 436 of the Insolvency Act. But it is unnecessary for me to develop that further, beyond indicating that I accept the respondents' submissions in that regard and their reliance upon the contrast in wording between paragraphs 2 and 2A of the 5th Schedule to the 1986 Act.\n- 247. So I answer the five questions posed by Ms Toube at the end of her oral submissions adversely to the applicants and I accept the respondents' submissions on those matters.\n\n#### 8/15/22, 12:08:00 22-50073 | Doc 761-3 | Fileebs08617/22most201001000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000\n\n- 248. That leaves me to consider, if the Crescent Farm principle does not apply, can sections 333 and 363 of the Insolvency Act be used by the trustees in bankruptcy; and can, as a matter of principle, Mr Lemos be ordered to waive his privilege in any documents that have been released to the trustees in bankruptcy or which are still held by Withers?\n- 249. Ms Toube acknowledged that whether or not the court might order Mr Lemos to waive privilege only arose for consideration if the trustees were wrong, as I have held they are, in their analysis of the law following Avonwick. In that event Ms Toube submitted that it was all the more obvious that there must be a power on the part of the Bankruptcy Court to compel Mr Lemos to cooperate so as to further the trustees in the performance of their functions. She acknowledges that that was not a point that was considered in Avonwick.\n- 250. As to the court's powers, Ms Toube submits that section 333 imposes an obligation upon a bankrupt to cooperate with his trustees in the fulfilment of their functions to the extent that the trustees may reasonably require. Section 363(2) enables the court with supervisory jurisdiction over the bankruptcy to compel such compliance.\n- 251. Ms Toube submits that as a matter of principle there is no difficulty in the concept that a trustee might reasonably require a bankrupt to agree to waive privilege if, by so doing, he would assist his trustees in pursuing assets for the benefit of the estate. She submits that as a matter of statutory interpretation, it is the necessary implication of section 333 that the bankrupt is obliged to cooperate with a reasonable request to consent to waive privilege so as to assist the trustees in the fulfilment of their function.\n- 252. It follows from the unrestricted terms of section 363 that the court is able to direct the bankrupt to cure such non-cooperation by agreeing to waive his privilege in an appropriate case. Ms Toube points out that, perhaps unsurprisingly, given the conventional understanding before Avonwick that a trustee succeeds to a bankrupt's privilege for all purposes, there is no authority on this particular issue, namely the abrogation of the bankrupt's ability to claim privilege so as to prevent his trustee carrying out his functions.\n- 253. But Ms Toube submits that the argument is not without parallel. She points to the fact that in Bishopsgate Investment Management Limited v Maxwell [1993] Ch 1, the Court of Appeal held that the power under section 235(2) of the Insolvency Act to require officers and former officers of a company to attend upon an office holder if reasonably required to do so carried with it the implied abrogation of such directors' privilege against self-incrimination. She also points out that the court is able to utilise its powers to give directions to a bankrupt as a means of achieving by an indirect route an outcome which would fulfil the purpose of the statutory insolvency regime.\n- 254. She points, by way of example, to Ashurst v Pollard [2000] 2 All ER 772, where Mr Justice Jacob made an in personam order by a bankrupt directing him to convey property located in Portugal to his trustees in bankruptcy in circumstances where, as a matter of jurisdiction, any proceedings to require the sale of the property would have had to be brought in the Portuguese court.\n- 255. Ms Toube submits that there is nothing inherently surprising about the existence of such a power. The ability to direct a bankrupt to waive his privilege is the interposition of the bankruptcy regime. It is said to be no more -- and arguably much less -- significant than the effect of section 306 in depriving a bankrupt of his assets.\n- 256. Nor is such a power without restriction, since necessarily the trustee would have to establish unreasonable conduct on the bankrupt's part, and it would be for the court supervising the bankruptcy to weigh the competing interests of the creditor with the bankrupt's wish to retain his privilege. Indeed, were the need to seek the court's assistance to arise, it might on occasion only be necessary to direct the bankrupt to agree to a document being shown to a third party on terms that it would be confidential, thereby preserving the waiver of privilege against the rest of the world.\n\n#### 8/15/22, 12:16:08:00 22-50073 | Doc 761-3 | Fileed:08/07/22mosEpaterrend+08/25/102024 | Page 35 of\n\n- 257. Mr Lord, for the first respondent, submits that the reasoning underpinning the Court of Appeal's decision in Avonwick applies with equal force to sections 333 and 363. The essence of the Court of Appeal's reasoning in Avonwick is that a bankrupt can only be deprived of legal professional privilege if the Act expressly so provides or such deprivation is a necessary implication of the express language of the Act's provisions.\n- 258. Section 333 does not expressly require a bankrupt to waive legal professional privilege if requested to do so by the trustee in bankruptcy and it cannot be said that it follows, as a matter of logic from the express words of section 333, that Parliament intended that the duty to cooperate created by that section could be invoked to compel a bankrupt to renounce his legal professional privilege. Indeed, given the fundamental nature of privilege, it is submitted that it would be highly surprising if that had been Parliament's intention. Accordingly, the court must presume that the general words of the section were intended to be subject to basic rights of the individual, such as privilege.\n- 259. Mr Lord submits that reliance on the Court of Appeal's decision in the Bishopsgate case is misconceived. First, the issue for the court in that case was the liquidator's statutory right to obtain information required to manage the company's affairs. The Court of Appeal held that the privilege against self-incrimination could not be invoked to defeat that right.\n- 260. The issue in the present case is said to be different. There can be no dispute that the trustees are entitled to see the privileged information and to use it for the purpose of carrying out their statutory functions, provided, as the Court of Appeal has held in Avonwick, that they do not waive legal professional privilege without the bankrupt's consent. The real issue is whether the bankrupt can be compelled to give such consent.\n- 261. Secondly, Bishopsgate predates the decisions of the House of Lords in both Simms and Morgan Grenfell and also the Derby Magistrates case.\n- 262. Mr Lord points out that in Bishopsgate the Court of Appeal affirmed the decision of Mr Justice Hoffmann, who had regarded himself as bound by an earlier decision of Mr Justice Vinelott and declined to express any views of his own. Mr Lord ventures to suggest that what Lord Hoffmann later said in the course of his speech in Morgan Grenfell -- that is to say that the courts would ordinarily construe general words in a statute as not having been intended to override fundamental human rights, even though capable of having that effect if read literally -- leads to the view that had Mr Justice Hoffmann not considered himself bound by earlier authority, his decision might well have been different.\n- 263. Mr Lord also submits that it is clear from the wording of section 333, and of section 363 in aid of it, that the sections only extend to things which are reasonably required for the purposes of carrying out the trustee's functions under any of this Group of Parts. That does not include the bringing of a claim under section 423 or assisting a third party in the bringing of such a claim. That is no part of the trustees' functions under the second Group of Parts, and so the bankrupt is under no duty under section 333(1) to cooperate with such a claim. The fact that the trustee has power to bring such a claim by virtue of section 314 and paragraph 2A of Schedule 5 does not mean that it is one of his statutory functions.\n- 264. Mr Lord further submits that even if the duty imposed by section 333, and the further assistance of the court capable of being invoked under section 363, can be relied upon to override the bankrupt's privilege, it can only do so in exceptional circumstances. That is because the court must construe the section in a manner which compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms and must take into account the jurisprudence of the European Court of Human Rights.\n- 265. That court has held that local professional privilege can be invaded only in exceptional circumstances. There are said to be no exceptional circumstances here. The trustees in bankruptcy have not identified any that would justify the order that they seek.\n\n#### 8/15/22, 12:28:26 22-50073 Doc 761-3 FileetsBMMP/22mosEattered+08/25/22(100/02024 Page 36 of\n\n- 266. In any event, it is pointed out that section 333 imposes no duty to cooperate on the second respondent. Even if the former bankrupt could be compelled to waive privilege, such a waiver would be infective in the case of jointly privileged documents.\n- 267. In the course of his oral submissions, Mr Lord submitted that necessity is not a sufficient reason for construing a statute as abrogating privilege. He submitted that since privilege remains with the bankrupt, as I have held, express words would have been required if Parliament had intended that the court could order the bankrupt to waive his privilege.\n- 268. He also submitted that the argument founded upon section 363 is essentially the same as the second ground of appeal in Avonwick, which was rejected by the Court of Appeal. He submits that the argument by Ms Toube is inconsistent with the Court of Appeal's overruling of the decision in Re Cook. In any event, he submitted that the jurisdiction under section 333 could only be exercised on a document-bydocument basis.\n- 269. Mr Lord's overarching point was that, whilst a trustee in bankruptcy was entitled to secure possession of privilege documents, Avonwick made it clear that he could not use them in any way that infringed Mr Lemos's privilege in those documents without his consent, and the court should not permit by the back door what could not be secured by direct frontal entry.\n- 270. Ms Shekerdemian submitted that section 363 did not help the trustee in bankruptcy to get a waiver of privilege indirectly in documents to which Mrs Lemos had either sole or even joint privilege. She could not be obliged to produce documents in waiver of her privilege, as had been made clear by the decision in Re Ouvaroff [1997] BPIR 712. She submitted that it was difficult to see how section 363 could be used in that way or how it could be used in relation to Mrs Lemos's privileged documents.\n- 271. At my suggestion, the parties put before me the recent decision of the Court of Appeal in the case of Re Henry, Horton v Henry [2016] EWCA Civ 989, reported at [2017] 1 WLR 391. That case concerned the bankrupt's unexercised right to receive sums under a pension scheme. One of the issues before the court was whether either the court or the trustee in bankruptcy had power to direct the bankrupt to exercise an election open to him to draw down income under the pension scheme so as to found the jurisdiction in the court to make an income payments order under section 310 of the Insolvency Act.\n- 272. It was held that section 333 of the 1986 Act did not empower the trustee in bankrupt to direct a bankrupt policy holder how to exercise the elections open to him, nor did section 363(2) empower the court to order a bankrupt to do so.\n- 273. The view of the Court of Appeal was that the first instance judge had been correct to hold that the bankrupt's uncrystallised pension rights did not fall to be assessed as part of his income for the purposes of section 310 and therefore, since the trustee had no power to compel the bankrupt to crystallise any of his pension, the application for an income payments order was refused.\n- 274. Ms Shekerdemian took me to paragraph 38 of the Court of Appeal's judgment (delivered by Lady Justice Gloster). She observed there that it would drive a coach and horses through the protection afforded to a bankrupt's pension rights by the 1986 Act and pension legislation if a trustee were able, in effect, to require a bankrupt to make the entirety of his pension available for satisfaction of his creditors' claims by the simple expedient of a request under section 333 or a court order under section 363 (2), thereby converting excluded property into income for the purposes of an income payments order.\n- 275. By analogy, Ms Shekerdemian submitted that a bankrupt cannot be ordered to waive privilege so as to assist in getting in property where statute had not authorised the trustee in bankruptcy to effect such a waiver. She submitted that it would drive a coach and horses through the Court of Appeal's decision in Avonwick and the other cases on privacy and the European Convention for the Protection of Human Rights and Fundamental Freedoms if the court were able, under section 363 to direct a waiver of privilege by a bankrupt, still less a third party, in aid of a request by a trustee in bankruptcy under section 333 to do so.\n\n#### 8/15/22, 12:20:00 22-50073 | Doc 761-3 | Fileds08Mo7/22mosEpterentHO8126000002024 | Page 37 of\n\n- 276. In her reply Ms Toube made it clear that the trustees in bankruptcy were not seeking an order that Mrs Lemos should waive her privilege in documents but merely that Mr Lemos should waive his. She submitted that the court had a discretion to override even a fundamental right. The Court of Appeal had done this in the Bishopsgate case in relation to the privilege against self-incrimination and it could do so in relation to privilege generally.\n- 277. Horton v Henry was said to be distinguishable as a case about the inability of a trustee in bankruptcy to use the statutory powers under section 333 and section 363(2) to subvert an express provision of the Insolvency Act. But that was not what the applicants were seeking to do in the present case. She invited the court to consider, on a case-by-case basis, whether to use the power under section 363(2) to require Mr Lemos to waive his privilege in specific documents.\n- 278. On this issue, again I prefer the submissions of the respondents to those of the applicants. I accept the submission that privilege is a fundamental human right and that the court has no jurisdiction to direct a bankrupt, still less a third party, to waive privilege in any documents.\n- 279. In my judgment the right to privilege is such a fundamental principle, as recognised by the House of Lords in the trilogy of cases previously cited, and by the Master of the Rolls in Avonwick, that only an express power to waive privilege in section 363(2) itself would confer jurisdiction upon the court to order such a waiver.\n- 280. In my judgment, it is a matter going to jurisdiction rather simply than to discretion. But if I am wrong in that, it seems to me that, in principle, a very powerful case indeed would have to be made out before the court should properly order a bankrupt to waive legal professional privilege in relation to documents. As at present advised, I find it difficult, particularly in the light of the Derby Magistrates' Court case, to think of any circumstances in which it would be appropriate to make such an order.\n- 281. So what is the consequence of that for the present application? It seems to me that, apart from the terms of an order directed to Withers in relation to any remaining documents, I should simply dismiss the application. It would not be appropriate to stand it over for the court then to embark upon the process of identifying those documents in respect of which there may be no privilege at all or in respect of which the iniquity exception can properly be invoked.\n- 282. In my judgment the appropriate course is to dismiss the balance of the application and to leave to it the trustees in bankruptcy, if they wish to make individual applications in respect of specific identified documents, to do so. This application has been formulated on a generic, rather than a specific document, basis and in those circumstances it would not be right to allow the trustees in bankruptcy to have a second bite of the cherry within the context of the present application.\n\n### APPROVED JUDGMENT (2)\n\n- 283. JUDGE HODGE QC: This judgment is supplemental to, and should be read in conjunction with, the somewhat lengthy extemporary judgment I have delivered during the course of today.\n- 284. The first issue I have to consider is what I should do about the form of order. That issue relates to the direction to be contained in the order as to the use, if any, that may be made of the privileged documents in relation to any potential proceedings against the former bankrupt, Mr Lemos.\n- 285. There is an element of unreality to that aspect of the order because, when one looks to the reasons for bringing this application, and the context in which expedition was sought, there is really no suggestion that there will be any proceedings against the former bankrupt alone.\n- 286. The certificate of urgency recorded that the documents the subject of my judgment were relevant to the trustees' investigations into transactions carried out by the former bankrupt which might have amounted to a transaction defrauding creditors within the meaning of section 423 of the Insolvency Act 1986. The particular transactions are said to relate to the manner in which the very substantial matrimonial home of\n- 8/15/22, 12:20:49:22-50073 | Doc 761-3 | Fileds@gflo7y22mosil20116012024 | Page 38 of the first and second respondents came to be settlett into an offshore trust and registered in the names of two offshore trustees.\n\t- 287. Proceedings under section 423 have been issued by the first respondent's sister and judgment creditor who is in fact a major creditor in his bankruptcy. The second respondent, as the first respondent's wife, has been joined to those proceedings as the third defendant and it is she who is going to be actively defending those proceedings, with the first and second defendants, the offshore trustees, apparently adopting a neutral role.\n\t- 288. It was in the context of those proceedings, and the trustees' own investigations, that it was said to be important that the trustees should obtain clarity as to the treatment and use that might be made of the documents as soon as possible.\n\t- 289. It was not apparently envisaged that Mr Lemos himself, the former bankrupt, would be a party to any proceedings. Nevertheless, at paragraph 58.2 of Ms Toube's written skeleton in support of the application, she included the submission that, even if the applicants were wrong in their reading of the Court of Appeal decision in Avonwick (which it was said they were not) there could be no question of Mr Lemos asserting that there was confidentiality in the documents as against the trustees in proceedings brought by the trustees against Mr Lemos.\n\t- 290. The point is made that Avonwick was only concerned with use of documents against third parties. It was said that on any view it remained the case that privileged documents could be used against the bankrupt. It was said that Mr Lemos could not assert privilege as against the trustees and the trustees were entitled to deploy documents covered by Mr Lemos's privilege in proceedings against him.\n\t- 291. Thus it was suggested, by way of example, that the trustees would be entitled to rely upon the bankrupt's privileged material in proceedings against the bankrupt for an income payments order or for a suspension of the bankrupt's automatic discharge.\n\t- 292. Ms Toube accepts that if I include in my order a provision that the trustees are not entitled to make use of the Withers documents in such a way as to waive Mr Lemos's privilege, then that will reflect the way in which the matter was expressed at paragraph 86 of the judgment of the Master of the Rolls, speaking for the Court of Appeal, in Avonwick, but it will not provide resolution to that issue. Ms Toube invites the court to provide such resolution.\n\t- 293. Mr Lord submits that I should not address what is, in reality, a hypothetical issue and that I should simply adopt the formulation to be found in paragraph 86. He says that he would wish to present full and proper submissions on the extent to which my judgment might or might not enable the trustees in bankruptcy to deploy privileged documents in proceedings against Mr Lemos alone because that was an issue which he regarded to be purely hypothetical. He says that he has not addressed submissions to me on that issue and that it is unnecessary for me to decide it.\n\t- 294. Had it been possible for me to receive submissions on that issue before the end of the Trinity Term and the commencement of the Long Vacation, then I would have wished to address that additional aspect in my judgment, however hypothetical it might be. But because of counsel's pre-existing commitments, it is recognised that it is not realistic for me to hear full submissions on that issue before the end of term.\n\t- 295. Such submissions could only sensibly be produced in writing once the parties had had an opportunity of considering and digesting the transcript of my extemporary judgment. There is simply not time for that exercise to take place, for written submissions to be formulated, and then for the matter to be brought back before the court, if necessary, for further and consequential oral submissions over the next two weeks.\n\t- 296. Undesirable though it may be, I will therefore adopt what I regarded as the \"fudge\" of simply incorporating the Master of the Rolls' formulation in my order and leaving undecided what is, in context,\n- 8/15/22, 12:28:46 22-50073 | Doc 761-3 | Fileetoga107/22mosEnteretH08127/221100112124 | Page 39 of the hypothetical question of whether the use of cheuments that are privileged is something that would amount to a waiver of privilege, which is not permissible in accordance with the terms of my judgment.\n\t- 297. The second outstanding matter is that of costs. Ms Toube accepts that, having brought this application and failed, the trustees in bankruptcy, as applicants, should bear the costs of the individual respondents, Mr and Mrs Lemos. I am not invited summarily to assess those costs, but what I am invited to do is to order a payment on account of costs.\n\t- 298. CPR 44.2(8) provides that:\n\n\"Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.\"\n\n- 299. The difficulty is that I have limited material on which to identify and quantify a reasonable sum on account of those costs.\n- 300. For the second respondent, Ms Shekerdemian has produced a summary of costs as of last Friday. It does not include the costs of today. It is not in any way certified or vouched for by the second respondent's solicitors. The total sum is just over £96,000 exclusive of VAT. Ms Shekerdemian invites me to order a payment on account of half of that amount which, with VAT, would amount to some £57,500 or thereabouts.\n- 301. Mr Lord is in an even worse position in that he has no summary of costs at all although, in the light of enquiries from the Bench, he has told me that the fees of himself and his junior for this hearing amount to a total of £45,000.\n- 302. Ms Toube has not produced any statement of the applicants' costs. She says that the applicants had considered there to be no point in doing so because there is an outstanding costs liability against the first respondent of some £7,590-odd.\n- 303. I am enjoined by CPR 44.2(8) to order the paying party to pay a reasonable sum on account of costs unless there is good reason not to do so, and I see no good reason here not to do so. I have to do the best I can on the limited material before me. I should not order the payment of a sum on account of costs that is in excess of the absolute minimum that I consider would be recoverable on a detailed assessment.\n- 304. Bearing in mind the level of the second respondent's costs, the fact that she has retained solicitors in Bristol, whereas the first respondent is using solicitors in Gray's Inn, and the fact that the second respondent has retained only leading counsel, whereas the first respondent has both leading and junior counsel (as do the applicants), and the fact that the costs incurred by the first respondent are likely to exceed those of the second respondent because the first respondent has, unlike the second respondent, undertaken some analysis of the relevant documents, it does seem to me that I can take Ms Shekerdemian's summary of costs as a reliable indication of the minimum amount likely to be claimed by the first respondent.\n- 305. Bearing all of those factors in mind, it seems to me that a reasonable sum on account of costs for each respondent would be the sum of £40,000 plus VAT, making in each case £50,000 in all. Sorry, I think that is slightly under £50,000: I think it is probably £48,000 in all. But in any event, it should be £40,000 plus VAT.\n- 306. In the case of the first respondent, there will need to be a provision for set-off against the outstanding costs liability on his part to the applicants, with only the balance to be paid.\n- 307. The next question I have to decide is whether there should be permission to appeal. By CPR 52.6(1), permission to appeal may only be given where the court considers that the appeal would have a real prospect of success or there is some other compelling reason for the appeal to be heard.\n\n8/15/22, 12:20Age 22-50073 Doc 761-3 FileedsPorteredHO8127/22/100W2027 Page 40 of\n\n308. Ms Toube has, I think, formulated some nine reasons as to why permission to appeal should be granted. They are as follows:\n\n(1) Insofar as I have found that Mr Justice Arnold in Avonwick at first instance did not actually decide that the Crescent Farm decision applied in bankruptcy, but proceeded solely on the basis of a concession to that effect by counsel, my judgment was in error.\n\n(2) I erred in concluding that the Crescent Farm principle was limited to the assertion of the right of a successor to claim privilege and did not decide that the successor in title was the person entitled to waive privilege. It is said that that was something also decided by Mr Justice Arnold.\n\n(3) I erred in concluding that the Crescent Farm principle does not apply in relation to assets in the hands of a trustee in bankruptcy. The distinction between voluntary and involuntary transfer of assets to a successor in title which I drew in my judgment was wrong in law.\n\n(4) It is said that I erred in my conclusion that the Court of Appeal overruled the decision of Mr Justice Arnold in that respect because the issues before the Court of Appeal related only to the questions of whether privilege was \"property\" in itself and as to the proper construction of section 311(1) of the Insolvency Act.\n\nAs to that, my conclusion had been that although Mr Justice Arnold's decision on the category A documents had not been overruled by the Court of Appeal, his decision had been founded upon a concession by counsel for the applicant on a matter which was irrelevant to the real issues on the application and on the appeal, and that that aspect of the decision was inconsistent with both the observations and the reasoning of the Court of Appeal and should no longer be followed, consistently with the Court of Appeal's decision.\n\n(5) It is said that I erred in concluding that Mr Justice Peter Gibson's decision on the second aspect of Re Konigsberg was overruled.\n\n(6) It is said that I erred in holding that a claim under section 423 of the Insolvency Act was not an asset comprised in the bankrupt's estate. I should have concluded that such a claim was an asset in the bankrupt's estate and therefore was equivalent to a document in category A in the Avonwick case.\n\n(7) It is said that I erred in my conclusion on section 363 of the Insolvency Act. It was necessary for me to consider whether privilege had been overtaken by necessary implication and I did not do so, and my decision on the jurisdictional point was wrong.\n\nIf my extemporary judgment did not make it clear, I say now that I considered that privilege had not impliedly been overruled in section 363 of the Insolvency Act.\n\n(8) It is said that I erred in my decision to dismiss the balance of the application. I should not have taken the view that the trustees in bankruptcy were effectively seeking a second bite of the cherry; rather, they were seeking to take a further bite of the original cherry. So far as that is concerned, it seems to me that that was a case management decision which was well within the generous ambit of my discretion.\n\n(9) Finally, it is said that there is some other compelling reason why this appeal should be heard, even if stands no real prospect of success. The matter is one of fundamental importance as to the meaning and effect of the judgments of Mr Justice Arnold and the Court of Appeal. It goes to a matter of fundamental importance to insolvency practitioners in bankruptcy and is central to the duties of a trustee in bankruptcy in collecting in the assets of the estate. That is illustrated by the points made at paragraph 63 of the ninth witness statement of Mr Leeds in support of the application.\n\n309. In summary, it is said that I erred in my conclusions as to the Court of Appeal's decision in Avonwick because the Court of Appeal was not considering this question when it decided the two different issues\n\n- 8/15/22, 12:20:36 22-50073 | Doc 761-3 | Fileet OBM07/22mostERtEilleM08127/221100142024 | Page 41 of that were engaged by the appeal. For all of those teasons, I should give permission to appeal under both limbs of CPR 52.6(1).\n\t- 3 10. Mr Lord submits that all matters apart from the question of whether documents relevant to a claim under section 423 of the Insolvency Act are asset documents, equivalent to category A documents in Avonwick, were covered by the Court of Appeal's decision in that case. Because this court was only concerned with issues of principle, the court should be reluctant to allow an appeal to the Court of Appeal when there is no immediate factual basis founded upon particular specified documents for mounting an appeal.\n\t- 311. Mr Lord submits that the relevant principles are clear and were clearly established by the Court of Appeal recently in the Avonwick case. He submits that it is difficult to think of a more unsuitable case for a first instance court to grant permission to appeal.\n\t- 312. There is, in addition, the further hurdle for the applicants of considering how the relevant documents relate to an asset in the bankrupt's estate. He submits that all matters raised in this application were raised before the Court of Appeal in Avonwick and are governed by its reasons for judgment.\n\t- 313. Ms Shekerdemian, for the second respondent, adopted all of Mr Lord's submissions and submitted that there is no important issue properly to be considered by the Court of Appeal and no real prospect of success on any appeal.\n\t- 314. In her brief response, Ms Toube submitted that the respondents have themselves changed their position in relation to the applicable law. This is said to be a very important decision for bankruptcy practitioners; it is necessary to know how the law stands, and I have clearly got the law wrong.\n\t- 315. Whilst I have heard elaborate argument, well delivered, by all three leading counsel who have addressed me, at the end of the day I have been left in no doubt as to my decision. For the reasons I have given in my extemporary judgment - at perhaps undue length - I do not consider that there is any real prospect of success on the appeal.\n\t- 316. Whilst there may be aspects of my decision that may be open to argument as to their correctness, in the context in which this decision falls to be considered, namely that of the potential use of privileged documents for the purposes of an application under section 423 of the Insolvency Act, I see no real prospect of the Court of Appeal coming to a different conclusion, even if individual aspects of my judgment may be held to be wrong (although I do not consider that there is a real prospect of that either).\n\t- 317. So I am not satisfied that an appeal would have a real prospect of success in any material sense or in any sense that would affect the use of the documents in the context in which it is suggested that they may be sought to be used. Nor do I consider that there is any other compelling reason for this appeal to be heard. As Mr Lord submits, the Court of Appeal has recently considered all of these issues in Avonwick.\n\t- 318. If, on an application for permission to appeal from this decision, the Court of Appeal takes the view that the Master of the Rolls' judgment does not provide sufficient clarification, and that further clarification beyond that which I have sought to provide is appropriate and necessary, then it seems to me that it is for the Court of Appeal to give permission to appeal.\n\t- 319. This is an application that has been heard by me sitting as a judge of the Chancery Division and therefore any appeal lies to the Court of Appeal. Unless an extension is asked for -- and I understand it will be -- the time for appealing is 21 days from today.\n\t- 320. So for those reasons, permission to appeal is refused.\n- BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: htt","body_zh":"8/15/22, 12:29 PM 22-50073 Doc 761-3 Filed 08/10/22 Page 2 of 41\n\n[主页] [数据库] [世界法律] [多数据库检索] [帮助] [反馈]\n英格兰和威尔士高等法院（衡平法庭）判决\n\n您当前所在位置：BAILII >> 数据库 >> 英格兰和威尔士高等法院（衡平法庭）判决 >> Leeds & Anor v Lemos [2017] EWHC 1825 (Ch) (17 July 2017) URL：htt 引用格式：[2018] 2 WLR 73, [2017] WLR(D) 504, [2018] 1 All ER 313, [2017] EWHC 1825 (Ch), [2018] Ch 81\n\n[新检索] [可打印 RTF 版本] [查看 ICLR 摘要：[2017] WLR(D) 504] [购买 ICLR 报告：[2018] 2 WLR 73] [购买 ICLR 报告：[2018] Ch 81] [帮助]\n\n中立引注编号：[2017] EWHC 1825 (Ch)\n\n案号：BR-2015-003947\n\n英格兰及威尔士高等法院（High Court of Justice）衡平法庭（Chancery Division）\n关于 CHRISTOS PANDELIS LEMOS（克里斯托斯·潘德利斯·莱莫斯）\n以及关于《1986年破产法》（Insolvency Act 1986）事宜\n\nRolls Building\nFetter Lane\nLondon EC4A 1NL\n17 July 2017\n\n审理法官：\n\n尊敬的 HODGE QC 法官（HIS HONOUR JUDGE HODGE QC）（以高等法院法官身份审理）\n\n(1) MICHAEL THOMAS LEEDS（迈克尔·托马斯·利兹）及 KEVIN JOHN HELLARD（凯文·约翰·赫拉德）\n\n（以 CHRISTOS PANDELIS LEMOS（克里斯托斯·潘德利斯·莱莫斯）先生破产财产的共同破产受托人身份）\n\n申请人\n\n— 及 —\n\n(1) CHRISTOS PANDELIS LEMOS（克里斯托斯·潘德利斯·莱莫斯）\n\n(2) KALLIOPI LEMOS（卡利奥皮·莱莫斯）\n\n(3) WITHERS LLP（维瑟斯律师事务所）\n\n被申请人\n\nFELICITY TOUBE QC（费利西蒂·图布御用大律师）女士及 TONY BESWETHERICK（托尼·贝斯韦瑟里克）先生（由 Gowling WLG (UK) LLP（高林律师事务所〔英国〕）指派）代表申请人出庭\n\nDAVID LORD QC（大卫·洛德御用大律师）先生及 SEBASTIAN KOKELAAR（塞巴斯蒂安·科克拉尔）先生（由 Richard Slade & Company（理查德·斯莱德律师事务所）指派）代表第一被申请人出庭\n\nMARCIA SHEKERDEMIAN QC（玛西娅·谢克德米安御用大律师）女士（由 TLT LLP（TLT律师事务所）指派）代表第二被申请人出庭\n\n第三被申请人在听证中未由代理人代表\n\n经批准的判决书 HTML 版本\n\n王室版权 ©\n\n1. HODGE QC 法官：这是我就 Michael Thomas Leeds 先生及 Kevin John Hellard 先生以 Christos Pandelis Lemos 先生的破产受托人身份于 12 April 2017 提出的申请所作出的即时判决书，案号为 BR-2015-003947。\n\n2. 本申请提出了有关 Arnold 法官在一审案件 Shlosberg v Avonwick Holdings Limited [2016] EWHC 1001 (Chancery) 中作出的判决（载于 [2016] 3 WLR 1330），以及上诉法院在同一案件中维持 Arnold 法官判决的裁决，[2016] EWCA Civ 1138（现载于 [2017] 2 WLR 1075）的真实含义及效力的根本性问题。\n\n3. 这些问题继而要求我裁定：(1) Goff 法官在 Crescent Farm (Sidcup) Sports Limited v Sterling Offices Limited [1972] Chancery 553 一案中确立、下文称为 Crescent Farm 原则的原则是否适用于破产；以及 (2) Peter Gibson 法官在 Re Konigsberg [1989] 1 WLR 1257 一案中作出判决的第二项理由是否仍为有效法律。\n\n4. 该申请寻求：(1) 就破产受托人从 Lemos 先生的前任律师即 Withers 获得的某些可能享有特权的文件可作何种使用作出指示；以及 (2) 根据《1986年破产法》第 366 (1) 条作出命令，要求 Withers 交出其占有的、与 Lemos 先生事务有关的任何其他文件，或者要求该律所适当成员提交一份载明该等事务情况的证人陈述。Withers 已确认其准备遵守该命令，因此 Withers 未在我面前由代理人代表，且申请的该部分无人反对。各方一致认为，该命令的确切条款应在我作出本判决书后处理。\n\n5. Lemos 先生于 11 March 2015 被裁定破产，并于 12 March 2017 获得破产解除。他是本申请的第一被申请人。他由 David Lord QC 先生代表，并由 Sebastian Kokelaar 先生（出庭律师）协助。\n\n6. 本申请的第二被申请人是第一被申请人的妻子 Kalliopi Lemos 女士。她由 Marcia Shekerdemian QC 女士代表。\n\n7. 作为申请人的前任破产受托人由 Felicity Toube QC 女士代表，并由 Tony Beswetherick 先生（亦为出庭律师）协助。\n\n8. 支持该申请的证据载于 Leeds 先生日期为 10 April 2017 的书面陈述（其第九份陈述）。答复证据载于 Lemos 先生日期为 16 June 2017 的证人陈述（其第二份陈述）以及 Lemos 女士日期为 9 June 2017 的第一份证人陈述。第二被申请人的两名姐妹，即 Koula Mangos（库拉·曼戈斯）日期为 6 June 2017 的书面陈述，以及 Maria Lemou（玛丽亚·莱穆）日期为 7 June 2017 的书面陈述，亦在案。答复证据载于 Leeds 先生日期为 29 June 2017 的第十份证人陈述。所幸，证人证据的确切内容并不影响本案。\n\n9. 概言之，共同破产受托人占有其在履行受托人职能过程中从 Withers 获得的某些文件。其中部分文件可能受仅属于 Lemos 先生本人或属于他与其妻子共同享有的律师—当事人特权保护。\n\n8/15/22, 12:38 PM 22-50073 Doc 761-3 Filed 08/10/22 Page 4 of 41\n\n其妻子。Lemos 女士还提出，其中一些文件可能仅受她本人享有的特权保护，尽管她尚未审阅文件，以确认其就任何特定文件的立场。若任何文件仅受 Lemos 女士享有的特权保护，受托人承认，至少在初步看来且在无其他依据的情况下，他们不能不受该特权限制地使用这些文件。然而，至少在受托人看来，不大可能存在任何该等文件。\n\n10. 受托人认为，若干 Withers 文件很可能可作为与欺诈债权人的交易有关的《1986年破产法》第 423 条程序中的有用证据。该等程序将旨在撤销 Lemos 先生于其破产多年前订立的、涉及位于 London NW3 的 27 and 27A Bracknell Gardens 房屋所有权的若干交易，Lemos 先生及其妻子居住于该房屋内。若该等程序成功，将为 Lemos 先生数额巨大的债权人的利益追回一项据称价值极高的资产。\n\n11. 特别是，某些 Withers 文件已在不同情境下由上诉法院审阅，该情境为上诉法院审理恢复以冻结禁令形式给予的救济的申请，相关引注为 Lemos [2016] EWCA Civ 1181。在该上诉中，法院部分因审阅这些文件的内容，并推翻 Cooke 法官的判决，而认定这些文件构成一项有充分可争辩依据的案件，认为应给予第 423 条救济。\n\n12. 然而，上诉法院在其判决书第 22 段中，同意一审法官的意见，认为为维持冻结禁令之目的，证据不足以使法院认为，在 1994 年房屋转让后的任何相关时间，Lemos 先生及其妻子与受托人之间存在共同意图，使 Lemos 先生应在该财产中拥有任何实益权益。上诉法院记载，得出该结论将意味着 Lemos 先生的信托声明，以及此后不久设立的有利于第二被申请人的信托，均为虚假安排，而受托人参与其中时明知事实真相与文件所规定的内容相反。\n\n13. 上诉法院认为，主张冻结救济的申请人 Joanna Lemos（乔安娜·莱莫斯），即 Lemos 先生的姐妹，如不主张文件系虚假安排，则难以接受其能够在此项理由下获胜的论点。然而，如我所指出，上诉法院确实恢复了冻结禁令，其依据是 Joanna Lemos 根据《1986年法》第 423 条获得救济具有充分可争辩依据。\n\n14. 该财产据称目前价值约 £16.5 million，现登记于一家百慕大受托公司及其一名董事的共同名下。离岸受托人与本申请的两名被申请人共同主张，他们仅为 Lemos 女士的利益以信托方式持有该财产。\n\n15. 申请人称，本次听证并不涉及第 423 条请求的是非曲直，而是涉及先决问题，即破产受托人可如何使用最终被认定为仅受 Lemos 先生享有的特权或受其与其妻子共同享有的特权保护的 Withers 文件。\n\n16. 需要作出这些指示，是因为一方面破产受托人与另一方面 Lemos 夫妇之间，就前者使用 Withers 文件的能力存在争议。受托人致函 Lemos 夫妇，请求确认他们不反对为与该财产有关的程序使用某些 Withers 文件。对此，(1) 代表 Lemos 先生行事的律师 Richard Slade & Co 表示，他反对使用这些文件，理由是该等文件享有特权，且他不会同意放弃该特权；以及 (2) 代表 Lemos 女士行事的律师 TLT LLP 以类似措辞致函，并进一步指称受托人在使用某些文件方面的行为违法。\n\n8/15/22, 12:26 PM 22-50073 Doc 761-3 Filed 08/10/22 Page 5 of 41\n\n- 17. 在本次聆讯过程中，我已明确表示，在取得冻结禁令并曾在上诉法院（Court of Appeal）使用部分文件的判决债权人乔安娜·莱莫斯（Joanna Lemos）缺席的情况下，由我就该等文件在现行第423条诉讼中的适当性或目前或未来使用作出任何裁决并不适宜。\n\n- 18. 在其陈词过程中，代表莱莫斯先生（Mr Lemos）的洛德先生（Mr Lord）表示，破产受托人将文件交给乔安娜·莱莫斯的行为是对是错，并非本院在审理本申请时应裁决的事项，但他明确表示，莱莫斯先生在该方面的权利予以保留。\n\n- 19. 两名被申请人的答复均援引了上诉法院在Avonwick案中的判决。在本判决书中，我将必须考量该判决的真正含义和效力，以及其对破产受托人的影响。\n\n- 20. 我明确表示，我仅审议破产受托人的地位。我不涉及公司清算人的地位。\n\n- 21. 在其陈词过程中已显而易见，代表申请人的图布女士（Ms Toube）认为Avonwick案的判决有误。她保留在上级法院质疑其正确性的权利。然而，图布女士试图限制所主张的Avonwick判决的效力。洛德先生和谢克尔德米安女士（Ms Shekerdemian）反对图布女士的努力，称这相当于重新表述Avonwick判决的效力和影响。\n\n- 22. 至于该案的判决，图布女士指出，莱莫斯先生及莱莫斯夫人（Mrs Lemos）似乎主张，该判决的结论是，尽管长期以来存在相反观点，破产受托人未经破产人同意，以及就任何受共同保密特权保护的文件而言未经莱莫斯夫人同意，不得在诸如与该财产有关的诉讼中使用任何受破产人独有或共同保密特权保护的文件。若这些主张正确，且法院亦无权命令莱莫斯先生同意使用该等受保密特权保护的文件，则据称Avonwick案的判决将对破产受托人履行其职能、追回破产人财产中的资产的能力产生巨大影响和严重后果，不仅在本案中如此，而且在更广泛范围内亦然。\n\n- 23. 利兹先生（Mr Leeds）的第九份证人陈述第63段论及该等更广泛的影响。他在该段称，Avonwick判决对其作为本案破产受托人以及对整个破产清算行业均产生深远影响。他举例称，他目前正处理另一宗破产事务，其中破产人的前法律顾问已根据该法第311条向他披露文件，这意味着他现已知悉可协助其为债权人利益变现破产人财产的信息。然而，如他无法以任何可能构成放弃该等保密特权的方式使用该信息，他履行其职责将受到严重阻碍。\n\n- 24. 事实上，他称，如Avonwick案具有被申请人所主张的效力，则：\n\n(1) 如该等细节会披露载于受保密特权保护文件中的信息，他将无法向资助破产程序的任何债权人披露其调查的细节。这自然会导致他们质疑调查的状况、该等调查的益处，以及为何该等债权人应继续资助该程序及利兹先生在其中的角色。\n\n(2) 在访谈任何第三方时，他将无法提及受保密特权保护文件中所载的任何信息。这将使该访谈程序更加困难，并最终可能使其对破产程序毫无用处。\n\n(3) 利兹先生亦可能无法向本可能有意资助与破产人财产有关的索赔的第三方资助人披露相关的受保密特权保护信息。没有该等可能构成索赔依据关键内容的信息，该等资助人很可能失去兴趣。\n\n(4) 如被要求裁决一项债权人索赔，且利兹先生已阅览证明该债权人索赔全部或部分无依据的受保密特权保护文件，他可能无法举证说明其驳回该索赔的理由，也无法在对其决定提出的任何上诉中举证说明该等理由。\n\n(5) 如一份受保密特权保护的文件披露了破产人财产中的一项资产，利兹先生将无法使用该文件进一步调查该资产，因此可能阻碍该资产为破产人债权人的利益而变现。\n\n- 25. 因此，鉴于Avonwick案的潜在影响以及莱莫斯先生迄今所持立场，利兹先生认为通过本申请推进此事属适当之举。\n\n- 26. 图布女士主张，被申请人所主张的命题并不正确。据称，他们的论点基于对Avonwick判决的误解。概而言之，受托人称：\n\n(1) Avonwick案的判决确认，破产人就与破产人财产中的资产有关的文件所享有的保密特权——但图布女士强调，不包括与该财产负债有关的文件——继续归属于破产受托人。\n\n(2) 因此，就威瑟斯（Withers）文件中与莱莫斯先生资产有关的文件而言：(a) 如该等文件受莱莫斯先生的独有保密特权保护，受托人有权为履行其职能而使用该等文件，无论是在针对莱莫斯先生、莱莫斯夫人或第三方的诉讼中，还是为破产程序之目的；(b) 如该等文件受莱莫斯先生及莱莫斯夫人的共同保密特权保护，则由于受托人已承继莱莫斯先生在该保密特权中的权益，受托人处于其地位，并有权在莱莫斯先生及莱莫斯夫人均为当事人的诉讼中援引和使用该等文件；及(c) 如该等文件受莱莫斯夫人的独有保密特权保护，则初步而言，在无其他因素的情况下，受托人不得使用该等文件。\n\n27. 图布女士将本次聆讯中寻求指示的具体问题分类如下：\n\n(1) Avonwick初步问题：假定部分或全部威瑟斯文件受保密特权保护，且该等保密特权属于莱莫斯先生（无论其独有或与其妻子共同享有），则受托人是否有权在针对离岸受托人的诉讼中（就莱莫斯先生独有保密特权而言）及／或针对莱莫斯夫人的诉讼中（就莱莫斯先生独有或共同保密特权而言）使用该等文件，而无需莱莫斯先生及／或莱莫斯夫人的同意，该等诉讼涉及该财产。\n\n(2) 第363条初步问题：假定部分或全部威瑟斯文件受属于莱莫斯先生的保密特权保护（无论其独有或与其妻子共同享有），并进一步假定受托人并不当然有权使用该等文件，莱莫斯先生能否依据1986年法案第333条和第363条被命令放弃其对该等文件享有的保密特权，以便受托人能够使用该等文件。\n\n- 28. 代表莱莫斯先生，洛德先生主张，不得允许破产受托人以任何会构成放弃莱莫斯先生保密特权的方式使用该等文件。他还主张，破产受托人不得要求莱莫斯先生放弃其对该等文件享有的保密特权，以使受托人能够使用该等文件。\n\n- 29. 由于各方提交的证据，包括莱莫斯先生及莱莫斯夫人在通信及其证据中所采取的立场，据称本申请还提出若干其他问题，尤其是：(1) 就从威瑟斯收到的文件中的每一特定文件而言，该文件是否事实上初步受保密特权保护；(2) 如是，该文件是否受莱莫斯先生的独有保密特权、其妻子的独有保密特权，或二人的共同保密特权保护；(3) 即使某一特定文件初步受保密特权保护，该保密特权是否因该文件属于不法目的例外而丧失，即该保密特权不附着于该文件，因为该文件是莱莫斯先生或莱莫斯夫人为不法目的寻求或取得意见的结果；以及最后，(4) 如该等文件受保密特权保护，但法院可以命令莱莫斯先生放弃其保密特权，则是否应就任何特定文件或所有文件作出该命令。\n\n30. 据称，这些问题只有在对初始问题作出裁定后才会出现；作为案件管理及适当使用法院资源的问题，亦应仅在初始问题已获裁定后才予考虑。由于事实证据尚不完整，这些问题目前无法在本次听证中裁定。\n\n31. 被申请人方主张，如初始问题按照被申请人所主张的意义得到回答，则适当的处理方式是法院仅驳回本申请，而由破产受托人日后就经破产受托人与各被申请人逐一审查的特定、明确文件提出申请。\n\n32. 我可参照Toube女士（图布女士）书面论点摘要第18段，概述法院面前各项申请的背景。\n\n33. Lemos先生（莱莫斯先生）的妹妹Joanna（乔安娜）于2014年12月在Royal Court in Jersey（泽西皇家法院）对其提起诉讼，主张其有权追回其委托Lemos先生代为投资、合计约US$18 million的款项，但其称该等款项被Lemos先生在其经营失败的航运业务中不当挪用。该诉讼立案后不久，乔安娜向English High Court（英格兰高等法院）申请并获得一项不经通知的冻结禁令，禁止Lemos先生处分其资产，并禁止离岸受托人对该财产进行任何处分。\n\n34. Lemos先生未对该诉讼进行答辩，乔安娜于2015年1月获得针对其的缺席判决，金额超过US$17.9 million。此后，Lemos先生成功申请其本人破产；现任受托人于2015年4月1日获任命。\n\n35. 离岸受托人在2015年5月Cooke法官（库克法官）主持的听证中，成功申请解除禁止其处分该财产的冻结禁令，但乔安娜获准对该裁定提起上诉，该禁令在其上诉听证前恢复有效。在此期间，Lemos先生因被指拒绝与受托人合作，其自动解除破产状态被暂停一年。\n\n36. 在调查过程中，受托人得知Withers（伟凯律师事务所）曾代表Lemos先生行事；在经过一段延误后，受托人取得了Withers的文件副本。受托人随后向乔安娜提供了其中若干文件的副本，以供其在即将举行的上诉听证中使用。此事发生在Arnold法官（阿诺德法官）就Avonwick案作出裁决之后，但在Court of Appeal（上诉法院）就该裁决的上诉作出裁决之前。\n\n37. 乔安娜申请获准在针对解除禁令裁定的上诉中依赖该等文件。上诉法院接纳了该新证据，并且部分基于该证据认定：有充分可争辩理由认为，最终导致该财产由离岸受托人持有的交易，构成1986 Act（1986年《破产法》）section 423所指的欺诈债权人交易。上诉法院命令，乔安娜在Lemos先生破产前取得的、禁止出售该财产的禁令，应为破产财产而继续有效，直至section 423程序的结果作出为止，条件是该等程序须在四周内提起；该条件已获履行。\n\n38. 该等程序是在首先取得法院许可后提起，现正为破产财产的利益而进行；据称，任何追回款项均应支付给受托人。该等程序仍处于早期阶段。离岸受托人已送达一份保留立场的答辩状，其中称其出庭是为申请Beddoe order（Beddoe命令）。其并未如此行事，而是Lemos夫人（莱莫斯夫人）根据其本人申请被追加为该程序的被告。其现已就该诉请送达答辩状，这意味着该诉请现将受到争讼。\n\n39. 据推定，鉴于Lemos夫人已被追加为该程序的当事人，且离岸受托人未能提出积极主张或申请Beddoe命令，离岸受托人拟就section 423诉请采取中立立场。\n\n40. 我已获引述Deputy Registrar Schaffer（副登记官沙弗）于2017年3月9日作出的一项命令。该命令记载，受托人不再拟就其处理该诉请的行为申请指示，而是就该诉请维持中立立场；其继续作为该诉请当事人的唯一目的为：(a) 提供披露；(b) 向法院提供其认为适当的协助；以及(c) 在该诉请最终处理时受法院命令约束。正是在该基础上，Lemos夫人被追加为section 423诉请的第三被告，离岸受托人无须提交经修订的答辩状。\n\n41. Lemos先生现已解除破产状态，尽管破产财产中仍存在重大债务，且迄今追回的款项极为有限。受托人与乔安娜订有一项协议，据称该协议要求其同意由受托人替代乔安娜成为原告，或与乔安娜一同被追加为共同原告。无论section 423程序由乔安娜还是由受托人推进，使用受托人持有的Withers文件的能力据称均具有重大意义。\n\n42. 我已获详细引述相关法定条文。1986 Act的section 305 (2)规定破产受托人的一般职能。该职能是按照Chapter IV的后续规定收集、变现并分配破产人的财产。在履行该职能以及管理破产人财产时，受托人有权在遵守该等规定的前提下行使其自身酌情权。\n\n43. section 313规定，受托人可行使Schedule 5的Parts 1和2所列明的任何权力。该等权力包括：根据Schedule 5 paragraph 2，就“与破产人财产中包含的财产有关”的任何诉讼或法律程序提起、启动或抗辩的权力；以及根据paragraph 2A（该条由Enterprise Act 2002（2002年《企业法》）在遵守过渡性规定的情况下增设）， “根据sections 339、340或423提起法律程序”的权力。\n\n44. 申请人主张，位于Hampstead（汉普斯特德）的财产是破产人的一项资产。Lord先生（洛德先生）强调Schedule 5 paragraphs 2与2A之间的区别，并据此主张，Hampstead财产并非“破产人财产中包含的财产”。\n\n45. Toube女士主张，受托人权力的核心在于为破产人的债权人利益追回破产人的资产，尽管其承认sections 339和340（涉及以低于价值的交易及偏颇清偿）载于Insolvency Act 1986（1986年《破产法》）的Chapter V，而section 423载于该《破产法》的Part XVI。\n\n46. 根据该法section 306，构成破产财产的资产归属受托人。section 283确定构成破产人财产的资产。在相关范围内，subsection (1)规定，在遵守下述规定的前提下，“为本组任何部分之目的，破产人的财产包括：(a) 在破产开始时属于破产人或归属于破产人的所有财产，以及(b) 根据本Part下述任何规定构成该财产一部分，或被视为属于前一项范围内的任何财产。”\n\n47. Toube女士承认，section 423不属于“本Part”，即Part IX（Bankruptcy），因此，作为section 423诉请标的的资产不得依据section 283(1)(b)被视为破产人财产的一部分。\n\n48. Section 283的subsections (2)和(3)包含对section 283 (1)一般范围的例外。section 283 (4)规定，本组任何部分中提及与破产人有关的财产，包括提及其可就财产行使的任何权力，但该权力就暂时不属于破产人财产的财产可行使的范围除外；就财产可行使的权力，为本组任何部分之目的，视为在因其可由该人行使而发生的交易或事件发生时归属于有权行使该权力的人，不论该权力是否于该时即变得可行使。\n\n49. section 436 (1)对“property”作出广泛定义，包括“金钱、货物、诉权、土地及无论位于何处的各种财产，以及因财产而产生或附随于财产的义务及各种权益，不论该等权益为现有或将来、既得或或有。”\n\n50. 据称，根据section 283 (4)及section 436 (1)，归属于受托人的破产人财产包括其对可适当视为包含在破产人财产内的资产所享有的任何请求权。\n\n51. 受托人的义务包括接管与破产人事务有关的文件和记录，即使该等文件和记录受属于破产人或第三方的保密特权保护。section 311 (1)对此作出规定，其内容如下：\n\n“受托人应接管所有与破产人财产或事务有关、且属于破产人或由破产人占有或控制的账簿、文件及其他记录（包括在任何程序中享有不披露特权的任何记录）。”\n\n52. section 312进一步强化该义务，其规定（除其他事项外）：\n\n“破产人应向受托人交付其占有或控制的、且受托人须接管的任何财产、账簿、文件或其他记录。”\n\n53. 该规定不影响破产人在section 333项下的一般义务。该section的subsection (1)规定：\n\n“破产人应当——\n\n(a) 向受托人提供有关其事务的资料，\n\n(b) 按受托人要求的时间会见受托人，以及\n\n(c) 采取其他一切行动，\n\n以满足受托人为履行本组任何部分项下职能而合理要求其采取的行动。”\n\n- 54. 根据第（3）款，第（1）款即使在破产人获得解除破产后仍适用于该破产人；第（4）款规定，如破产人无合理理由而未履行第333条施加的任何义务，即构成藐视法庭罪，并应据此受到处罚。\n\n- 55. 第363（2）条规定，在不影响该组各篇中任何其他规定的前提下，尚未解除破产的破产人，或其财产仍根据该篇第四章进行管理的已解除破产的破产人，应为其破产事宜，或视情况为管理该财产，而作出法院指示其作出的所有行为。”\n\n- 56. 据称，基于该法定背景，受托人的立场是：（1）由于他们已承继Lemos先生（莱莫斯）的特权，他们能够在任何程序中使用Lemos先生仅享有特权、且与其资产有关的文件，无论该程序是针对Lemos先生、Lemos夫人（莱莫斯夫人）或第三方，或实际上为破产目的而进行；以及（2）如任何Withers（威瑟斯）文件受Lemos先生和Lemos夫人共同特权的约束，受托人能够在针对他们二人或其中任何一人的程序中使用该等文件。\n\n- 57. 据称，就Avonwick（埃文威克）案所作出的判决而言，一方与个别被申请人一方之间存在根本性差异。因此，据称有必要对该案进行详细分析，包括其在Arnold法官（阿诺德法官）面前的一审程序及上诉程序。\n\n- 58. Avonwick案的事实复杂，但概而言之，破产人Shlosberg先生（什洛斯伯格）曾申请禁令，以禁止一家律师事务所Dechert（德彻特）继续同时代表其破产案中的主要债权人Avonwick及其破产受托人行事。尽管已破产，Avonwick仍在继续针对Shlosberg先生进行诉讼，并指称其构成共谋。\n\n- 59. Shlosberg先生申请的依据是，Shlosberg先生的前任律师已向Dechert提供大量文件，而Dechert中一个同时代表破产受托人及Avonwick的团队审阅了该等文件。Shlosberg先生称，因此，主要债权人Avonwick的律师已阅览大量受其享有的特权保护的文件。他主张，由于在针对其进行诉讼中的不利一方所聘律师已阅览其无权阅览的特权文件，应命令该律师事务所停止代表Avonwick行事。\n\n- 60. 涉及特权问题的文件分为三类。第一类为A类文件。该等文件涉及破产人的一项资产，即有关Shlosberg先生的猫受到攻击的先前诉讼；该诉讼在其破产前已作出有利于Shlosberg先生的郡法院判决。该等文件中，Shlosberg先生享有独占特权，且其涉及其破产中的一项资产，即有利于Shlosberg先生的郡法院判决所带来的利益。\n\n- 61. 第二类文件为B类文件。该等文件涉及破产人的债务，即Avonwick向Shlosberg先生及其公司Webinvest Limited（韦布投资有限公司）送达的法定催告书；该等催告书随后导致针对Shlosberg先生成功提出破产呈请，并针对Webinvest成功提出清盘呈请。\n\n- 62. 第三类为C类文件。该等文件涉及与B类所指相同的债务，即Avonwick于2014年对Shlosberg先生及Webinvest提出的一项请求；该请求导致判决债务，该等判决债务正是B类所述法定催告书及呈请的标的。B类和C类文件均为Shlosberg先生与Webinvest共同享有特权的文件。\n\n- 63. Arnold法官裁定，受托人取得了Shlosberg先生对A类文件所享有特权的利益，因为该等文件涉及破产人的一项资产，即因Shlosberg先生的猫受到攻击而产生的郡法院判决债务。但其裁定，受托人并未取得Shlosberg先生就B类及C类文件所享有共同特权的利益，因为该等文件涉及破产人的债务。\n\n- 64. 在认定与B类及C类文件有关的特权仍归Shlosberg先生所有后，随之可知Avonwick的律师已阅览Avonwick无权取得的材料。基于此，Arnold法官裁定，适宜以禁令禁止Dechert继续代表Avonwick行事。\n\n- 65. Toube女士（图布女士）主张，Arnold法官就A类文件作出的结论，是其适用被称为常规适用的判例权威的结果，尤其是源自Goff法官（戈夫法官）在Crescent Farm（新月农场案，前引案例）中判决的原则；该原则其后由Peter Gibson法官（彼得·吉布森法官）在Re Konigsberg [1989] 1 WLR 1257案中适用。\n\n66. 概而言之，据称Arnold法官的结论是按以下推理路线得出的：\n\n（1）有权取得某项资产的继受人，将取得其前手就与该资产有关的文件所享有的特权。\n\n（2）受托人是有权取得该资产的继受人，这一点已得到充分确立，因此受托人需要取得破产人就与该资产有关的文件所享有的特权。\n\n（3）正如Peter Gibson法官在Re Konigsberg案第1267F页所裁定，受托人并非普通第三方。所有可在破产人债权人之间分配的破产人资产，均自动归属于受托人，包括根据第42条［现为第339条］可撤销的和解协议所转让的破产人财产的权利。有权取得财产的继受人承继并有权主张其产权前手的特权（援引Crescent Farm案），并在该范围内代位于该前手。如果受托人虽有权取得并占有该信息，却不能在寻求追回破产人财产时履行职责而使用该信息，将极不合理。\n\n（4）因此，Re Konigsberg案法院裁定，破产人的妻子不能阻止其丈夫的破产受托人在对将婚姻住所转入妻子单独名下提出异议的程序中，援引此前代表破产人及其妻子的律师所提供的证据。法院裁定，共同委托人不得相互主张特权；由于破产人的特权已移转给受托人，因此，就针对共同委托人的程序中的特权而言，将受托人视为代位于破产人是适当的。\n\n（5）Arnold法官在Avonwick案一审中将同样的原则适用于A类文件。\n\n67. Toube女士称：\n\n（1）法官对有关特权移转的判例权威的审查始于Crescent Farm案和Re Konigsberg案。Arnold法官在第72段引用了Crescent Farm案第562F至G页的以下摘录，并将其称为“Crescent Farm原则”：\n\n“依我判断，已明确确立，产权前手的法律专业保密特权确实使其继受人受益。Halsbury's Laws of England（《哈尔斯伯里英国法律全书》）对此有所表述……依我判断，该表述正确。该问题最早在Minet v Morgan (1873) 8 Ch App 361案中得到明确解决。其判例摘要的第二部分对此作了明确表述。判决并未十分明确地如此表述，但依我看来，经分析，该案显然作出了这一裁定。”\n\n（2）在第73至75段，Arnold法官讨论并引用了Peter Gibson法官在Re Konigsberg案中的判决。双方共同认可，Re Konigsberg案以Crescent Farm原则为基础，因为该特权涉及已归属于破产受托人的资产：见第75段。法官在第99段及第106段再次提及此点；在第106段中，Arnold法官注意到如下主张：破产受托人必须能够主张或放弃破产人的权益；Arnold法官并指出：\n\n“在本司法管辖区，受托人通常能够援引Crescent Farm原则。”\n\n法官在第113段明确指出，当意见涉及资产时，Re Konigsberg案的效力。\n\n（3）在Avonwick案一审中，Toube女士主张，对于破产受托人根据Insolvency Act 1986（《1986年破产法》）中的归属规定作为破产人的继受人取得相关资产的案件适用Crescent Farm原则，Shlosberg先生的律师已适当地作出承认：\n\n“70. Shlosberg先生的律师承认，如某项财产的所有权作为破产人财产的一部分移转给破产受托人，则记载就该财产请求及提供法律意见的文件，或为与该财产有关的程序之主要目的而制作的文件中的特权利益，均移转给受托人。然而，他主张，该原则最初适用于除记录特权信息的文件以外尚有某项财产的情形……尽管他并未承认郡法院判决属于第436（1）条所称财产，但其未提出任何相反论点。”\n\nToube女士还援引第126段，其中法官在处理被申请人代表提出的替代论点时——该等论点主张就特权文件而言并无任何财产移转——表示，如Shlosberg先生的律师所承认，该结论“受如Konigsberg案中Crescent Farm原则之运作所规限”。据称，Arnold法官在第132段接受了Shlosberg先生律师的主张。\n\n（4）因此，法官裁定，如破产受托人已取得特权文件所涉的相关财产，则Crescent Farm原则适用；见第106段及第108段。因此，Arnold法官接受了以下论点：A类文件（即涉及破产人资产的文件）中的特权已归属于受托人。由于Shlosberg先生在其破产前已成功取得有利于其的判决，该判决债务属于破产人财产的一部分，并移转给破产受托人；又由于受托人是意见所涉财产（即判决债务）的产权继受人，他们已取得该特权的利益。\n\n（5）尽管Toube女士承认，可以公平地说，Arnold法官在得出该结论时表达了一定程度的疑虑（见其判决第132段），但其仍认定受托人已取得破产人就A类文件所享有特权的利益。换言之，据称Arnold法官接受了Shlosberg先生律师作出的承认乃属正确作出。Toube女士陈述的一贯主题是，该问题并非废除特权的问题，而是特权随其所涉资产移转的问题；受托人可按其选择主张该特权或放弃该特权。\n\n68. 法官对B类和C类文件采取了截然不同的看法，因为它们涉及的是破产人的负债，而非破产财产。据Toube女士称，正是本案的这一方面在破产法领域引起了轩然大波，并在该领域造成了某种火山式的爆发。\n\n69. 关于负债文件，Arnold法官认定该项特权仍归Shlosberg先生所有。他认为，Shlosberg先生根据判决债务所承担的义务，并非根据第306条归属于其受托人的财产。因此，一方面A类文件中的特权已归属于受托人，另一方面C类文件中的特权则未归属于受托人，两者之间的区别在于，后者文件涉及就针对Shlosberg先生的请求所提供的意见，而且至少就C类文件而言，该等请求导致判决对其作出，而非对其有利。\n\n70. 破产受托人作为Shlosberg先生在破产前取得的判决的权利继受人，因该判决属于一项资产，且A类文件中的特权与该财产有关；但归属于受托人的财产并不包括Shlosberg先生的负债或义务。因此，由于归属于受托人的财产不包括针对破产人的判决债务，因为该等债务属于破产人的负债，故受托人并非就该等事项而言的权利继受人。\n\n71. Arnold法官还驳回了另一项论点，即特权本身是《破产法》含义内归属于破产受托人的财产；并驳回了进一步的论点，即如果纸质文件本身归属于受托人，则该纸张所载信息中的特权也同样归属于受托人。\n\n72. Toube女士主张，Arnold法官的一审裁判，至少就A类文件中的特权而言，是对法律的正统表述，也是对Crescent Farm原则的常见适用。她主张，关于B类和C类文件的裁判更具问题；但她强调，这并非本申请的标的，且受托人保留权利，在必要时就这些问题向更高法院提出陈述。\n\n73. 据称，Avonwick案的一审裁判认为，与破产人资产有关、但与其负债无关的文件，可由破产受托人取得和使用，而不受有利于破产人的任何特权限制。据称，关于这确是Avonwick案一审判决的正确分析，可见于《Matthews and Malek on Disclosure》最新的第五版。第11.07段中，编者援引Avonwick案的一审裁判，以支持如下命题：\n\n“就一项资产行使特权的权利，将转移给该资产的权利继受人。但是，该权利不会仅因相关文件的所有权转移而转移给该等文件的权利继受人。”\n\nToube女士主张，这是对Avonwick案一审裁判所确立命题的正确表述。\n\n74. 在其答复过程中，Toube女士还援引了Shekerdemian女士对Avonwick案一审裁判的评论。Shekerdemian女士在该评论中表示，Crescent Farm原则并不取决于权利继受人取得记载受特权保护信息的文件的财产权，而取决于该权利继受人取得法律意见或诉讼所涉的其他某项财产。\n\n75. 据称，该判决的实际后果是，除非破产人可在破产前主张特权的文件与归属于破产受托人的财产有关，或直接源自该等财产，否则破产受托人如今极不可能轻易取得该等文件。根据该评论，就A类文件而言，情况显然如此。Shlosberg先生在其中取得判决的诉讼中作出的郡法院判决所带来的利益，显然是1986年法案第436(1)条含义内的财产，因为该利益可以变现和分配。\n\n76. 据称，Shekerdemian女士在其评论中，对并非源自已归属财产、但仍与破产人的财务事务或其他财产直接相关的文件所附随的特权作出了区分。即使纸质文件的所有权本应归属于破产受托人，该等文件中的特权仍归破产人所有。\n\n77. 根据Shekerdemian女士的评论，检验标准因此是作为文件基础之物的性质。如果该物是第436(1)条含义内的财产，即可变现之物或可交易的权利，则破产受托人能够主张与该财产有关的文件中任何特权所带来的利益；否则不能。\n\n78. Shekerdemian女士的评论最后提及《破产法》第333条和第336条，并指出Arnold法官在其判决中并未审议这些条款。该等条款的适用是否会因该判决而被修改或缓和，仍有待观察。\n\n79. 我注意到，该评论完全以Arnold法官在Avonwick案中的一审裁判为基础，既未受益于上诉法院随后作出的裁判，也未考虑该后来的上诉法院裁判对Arnold法官一审裁判的影响。受托人是在Avonwick案一审判决作出后、上诉裁判作出前，向Joanna提供了从Withers取得的部分文件。\n\n80. Toube女士随后审议了上诉法院的裁判。Avonwick及Shlosberg先生的破产受托人均获准对Arnold法官禁止Dechert继续代表Avonwick行事的裁定提出上诉。上诉范围见《Weekly Law Reports》报告第1078页。Lord先生在陈述过程中提请注意上诉理由如下：\n\n“法官在法律上犯有错误：如果如其所认定，特权可转移的唯一方式，是特权涉及与转移给共同受托人的其他某项财产有关的法律意见，则其本应认定，破产人针对债权人取得的判决，在其破产时成为构成1986年法案第436条所称‘财产’的遗产负债。在该等情形下，法官本应认定，与该负债有关的任何法律材料中的特权，根据Crescent Farm案的原则转移给共同受托人。”\n\n81. Lord先生还提请注意被上诉人通知，其中破产人请求法院基于下列不同或附加理由等维持法官的裁定：\n\n“(1) 法官正确认定，除争议材料中有限的一部分外，相关材料不能纳入Crescent Farm原则的范围。\n\n(2) Crescent Farm案的裁判错误，且与后来将律师—委托人特权承认为一项基本人权不相容。鉴于该项承认，特权权利转归破产受托人的唯一方式，只能是通过明文规定，或者由明文规定必然导出的默示，作出的法定减损。法官正确认定破产人在相关材料中保留其特权权利。”\n\n82. Lord先生请法院注意，卷首摘要已明确显示，上诉法院在考虑的是破产人针对第三人的特权放弃，而非破产人与受托人之间的关系。上诉法院在其判决的早期，即第21段中表示，本次上诉并不涉及A类文件。法院指出，法官已在第30段中就该类文件作出有利于受托人的裁判。相反，Toube女士指出，争议在于受托人对法官就B类和C类文件所作裁判提出的质疑；上诉法院在第21段中将该等文件界定为“该等文件”。\n\n83. 上诉法院继而驳回上诉，并维持Arnold法官的裁定。主导判决由上诉法院院长Sir Terence Etherton爵士作出，Gloster女法官和Sharp女法官均表示同意。\n\n84. Toube女士主张，上诉法院的裁判并未改变Avonwick案一审就附随于与破产人资产有关文件的特权所作出的结论；据称，该裁判也未改变与附随于与破产人负债有关文件的特权相关的立场。\n\n85. Toube女士主张，重要的是注意到，如报告的卷首摘要已清楚表明，上诉法院考虑的是破产人针对第三人的特权放弃，而非破产人与受托人之间的关系。上诉法院在其判决的早期，即第21段中表示，本次上诉并不涉及A类文件。法院指出，法官已在第30段中就该类文件作出有利于受托人的裁判。相反，Toube女士指出，争议在于受托人对法官就B类和C类文件所作裁判提出的质疑；上诉法院在第21段中将该等文件界定为“该等文件”。\n\n86. 在其口头陈述中，Toube 女士强调，上诉法院（Court of Appeal）仅处理B类和C类文件，而未处理A类文件。她强调，Crescent Farm 原则所涉及的并非特权的废止，而是特权的转移。Avonwick案中的上诉法院仅处理了B类和C类文件；该等文件涉及Avonwick提出的一项主张，如获支持，将减少Shlosberg先生破产案中的债权金额。\n\n87. Joanna Lemos（乔安娜·莱莫斯）的主张，是债权人就破产人一项将归入其破产财产的资产提出的主张。相比之下，Arnold法官（Mr Justice Arnold）的裁决既涉及对将归入破产人破产财产的一项资产提出的主张，也涉及债权人针对破产人提出的主张。正是因此，Arnold法官区分了A类文件与B类和C类文件；并且无人称上诉法院的任何裁定影响了该项区分。\n\n88. Toube女士主张，因此，不得认为上诉法院就A类文件持有不同观点，更不得认为其推翻了Arnold法官就A类文件作出的裁决；也不得认为其不赞同Crescent Farm原则的适用，更不得认为其以默示方式推翻了Re Konigsberg（Konigsberg案）在涉及与资产而非负债有关的文件中的特权案件中的效力。\n\n89. 有人称，上诉法院并未推翻Re Konigsberg，而是将其加以区分。其所依据的是判例摘要中报告人的表述，即Crescent Farm和Konigsberg均被“区分”。没有任何说法称二者未被遵循，更遑论被推翻。\n\n90. Avonwick在上诉中提出的主要论点是，B类和C类文件，以及附着于其中所载信息的任何特权，均构成Shlosberg先生破产财产的一部分，并在受托人获任命时归属于受托人：见第52段。\n\n91. Avonwick的备选论点是，Section 311的效力在于，基于必要默示，受托人有权为履行其职能之目的使用B类和C类文件。据称，与该等文件有关的职能包括采取可能减少破产财产债权的措施，即协助Avonwick向第三方主张其权利，从而减少其在Shlosberg先生破产案中的债权：见第52段。\n\n92. 上诉法院在第40至42段指出，破产受托人应能够依照法定方案收回、变现并分配破产人的破产财产，这一政策具有重要性；但其最终认定，在审视与破产负债有关文件中的特权时，该项政策应让位于相竞争的政策，即诉讼当事人应能够私下咨询律师。\n\n93. 法院未接受Avonwick的主张，即特权属于可转移给受托人的一种财产。法院既驳回了如下论点：作为对section 436(1)的解释问题，特权是因B类和C类文件产生或附属于该等文件的权益；也驳回了如下备选论点：由于Shlosberg先生可以拒绝披露该等文件，故特权是可就该等文件行使的一项权力，并因而属于Section 283(4)的含义范围：见第57及58段。\n\n94. 据称，这些结论取决于对Insolvency Act 1986（1986年《破产法》）具体条款的解释，对于Arnold法官将Crescent Farm原则适用于与资产有关的文件一事，并无任何论述。民事上诉法院院长（Master of the Rolls）在阐明其理由时，于第63段表示，他认为以下内容显属明确：\n\n“……根据对1986年法案相关条款的适当解释，特权并非自动归属于破产受托人的破产人财产。”\n\n95. 民事上诉法院院长指出，受托人所援引的仅为sections 436(1)和283(4)；该等条款并未明确将特权视为自动转移给受托人的破产人财产。\n\n96. Toube女士指出，这些条款并非Crescent Farm原则在涉及资产时所依据的推理的一部分。根据Section 306，资产当然归属于破产受托人；并且，如Arnold法官所裁定，由于资产已转移，与该等资产有关文件中的特权亦随之转移。\n\n97. Toube女士主张，上诉法院的讨论针对的是如下论点：特权本身是一种归属于受托人的资产；Arnold法官亦曾驳回该论点。该讨论并非针对如下问题：如特权与已归属于受托人的资产有关，特权是否可能归属于受托人。\n\n98. 民事上诉法院院长在第59及60段列举Crescent Farm和Konigsberg案的裁决后，于第64段审议Crescent Farm、Re Konigsberg及其他案件是否影响其推理。据称，他得出结论认为，Crescent Farm和Konigsberg均不妨碍其结论。\n\n99. Toube女士再次主张，法院面前的争点是Avonwick关于特权本身属于根据《破产法》转移的财产这一论点是否正确，而不是特权是否转移给继受与该特权有关之资产的人；据称，后一个问题并未提交上诉法院审理。上诉法院的结论与Arnold法官的结论相同，即特权本身并非财产。\n\n100. Toube女士主张，具有重要意义的是，上诉法院并未推翻或不赞同Crescent Farm，而只是就其正在审议的争点，即仅与负债有关的B类和C类文件中的特权，将其加以区分。上诉法院在第64段指出，Crescent Farm并非破产案件，且取决于其特定事实。\n\n101. Toube女士称，这一说法是正确的：经Arnold法官认可的Crescent Farm原则是，继受一项资产的人亦继受与该资产有关文件中的特权。正是基于受托人继受了郡法院（County Court）判决书，他们取得了A类文件中的特权。该分析不同于Avonwick在上诉法院就B类和C类文件提出的论点，并不依赖于对破产立法的特别解释。\n\n102. Toube女士指出，就Re Konigsberg而言，上诉法院谨慎地表示，该案“就目前所审议的争点而言并不正确”：见第64段。她主张，“所审议的争点”是指如下论点：B类和C类文件中的特权——换言之，负债文件中的特权——是一种受《破产法》规制的财产。她主张，法院并未审议Crescent Farm原则和Re Konigsberg对A类文件或资产文件的适用。她主张，Re Konigsberg未被推翻这一事实表明，就其在与资产有关文件的情境中适用Crescent Farm原则而言，该案仍是有效法律。\n\n103. Toube女士称，Re Konigsberg案的错误之处在于，其认定破产受托人就一般特权而言取代了破产人的地位。就资产文件而言，过去及现在均是如此；但就负债文件而言，现已不再如此。\n\n104. Lord先生（Mr Lord）在提出其陈述时，对于“目前所审议的争点”的性质持不同意见；上诉法院曾就该争点表示Re Konigsberg不正确。Lord先生主张，被认定不正确的“所审议的争点”是第60段末尾所指明的事项，即特权属于破产人与其妻子的共同特权，而受托人既已取代破产人的地位，便有权主张不得针对作为共同特权持有人的受托人维持该特权。\n\n105. Toube女士承认，上诉法院审议了Avonwick的备选论点，即Insolvency Act 1986的section 311(1)的效力在于，基于必要默示，受托人有权为履行其职能之目的使用B类和C类文件。她承认，上诉法院与Arnold法官对section 311(1)的解释一致，驳回了Avonwick在该问题上的论点。Arnold法官和上诉法院均驳回如下观点：section 311(1)应被解释为赋予破产受托人放弃特权的权力；据称，该论点与Crescent Farm原则无关。\n\n106. 据称，判决书的这一部分并未讨论Crescent Farm。尽管判决书的这一部分提及Re Konigsberg（见第82段），但据称这是在讨论Stanley Burnton QC（斯坦利·伯恩顿御用大律师）在Re Cook [1989] BPIR 881案中以高等法院（High Court）副法官身份作出的裁决时提及的。在该讨论中，Terence Etherton爵士（Sir Terence Etherton）作为民事上诉法院院长表示，该案副法官错误地依赖Re Konigsberg，并据此认定：\n\n“……就破产人的破产财产及事务而言，放弃特权的权力和权利，以与其资产以及与其破产财产及事务有关的账簿、文件及其他记录的占有权根据section 311转移给受托人相同的方式，转移给其受托人。”\n\n107. Toube女士承认，上诉法院确实推翻了Re Cook。她称，该案无法与上诉法院就此问题作出的裁决并存；该裁决即特权本身并非转移给受托人的资产。\n\n108. Toube女士指出，民事上诉法院院长在第69段称，Shlosberg先生的律师已承认，受托人可以为收回和变现破产人破产财产这一法定目的，使用享有特权的文件及其中所载信息。然而，该律师曾主张且法官曾认定，受托人只能以不构成放弃特权的方式使用该等文件及信息。\n\n109. Toube女士称，这似乎是指一审判决书第105段，其中Arnold法官对受托人可如何使用文件提出了一些限制。但她请本院注意，Arnold法官在第106段结尾提醒道：\n\n“……在本辖区内，受托人通常能够依赖Crescent Farm原则。”\n\n110. 因此，Ms Toube（图布女士）主张，该段文字仅涉及与负债有关的文件的使用，而非与资产有关的文件；对于资产，Crescent Farm principle（Crescent Farm原则）仍提供了答案。\n\n111. 图布女士指出，最后，Court of Appeal（上诉法院）在得出其结论时显然受到以下因素影响（见第85段）：受托人的职能并非协助债权人向第三方追索请求权，而该请求权将导致该债权人对破产财团的债权减少或消灭。相反，上诉法院强调，根据section 305(2)，受托人的职能是收集、变现和分配破产财团；也就是说，变现资产。她指出，破产受托人的职能之一是根据Insolvency Act（破产法）section 423 提起请求。\n\n112. 图布女士主张，由于Avonwick（Avonwick案）在两个审级的判决，可以明确的是，正确适用Crescent Farm原则后，Mr Lemos（莱莫斯先生）就与其资产有关的文件所享有的单独特权，尽管不包括与其负债有关的文件，已转移给受托人，且受托人可以不受该特权限制地使用该等文件。\n\n113. 图布女士还主张（见其书面论点提纲第57段），该结论亦符合关于特权和保密的一般原则。我认为没有必要审议图布女士主张的该方面。依我之见，本上诉应参照上诉法院在Avonwick案中确立且应被正确理解的原则作出裁定。\n\n8/15/22, 12:16 AM 22-50073 文件 761-3 已于 08/07/22 提交，第18页，共\n\n114. 在其口头陈述过程中，图布女士表示，申请人同意Mr Lord（洛德先生）的书面论点提纲第29段以及Ms Shekerdemian（谢克尔德米安女士）的书面论点提纲第39至40段中的一般陈述。这些陈述涉及特权作为一项基本权利，以及特权如何被废除。但图布女士称，这并未告诉我们本案问题的答案，因为本案并不涉及废除特权，而仅涉及特权转移给破产受托人。\n\n115. 基于上述所有理由，图布女士主张，如受托人已取得莱莫斯先生单独特权所附随的文件，则正确适用经Re Konigsberg（Konigsberg案）及Avonwick案认可的Crescent Farm原则后，受托人作为莱莫斯先生就其全部资产而言的权利继受人，可以取得并使用任何载有与该等资产有关的特权信息的文件，而非与其负债有关的文件，包括在针对莱莫斯先生、Mrs Lemos（莱莫斯夫人）或任何第三方的程序中使用该等文件。\n\n116. 图布女士主张，即使受托人对Avonwick案的理解有误（她称并非如此），莱莫斯先生也绝不可能在受托人对莱莫斯先生提起的程序中，主张该等文件对受托人具有保密性。她指出，Avonwick案仅涉及对第三方使用文件。无论如何，特权文件仍可用于对抗破产人。莱莫斯先生不能对受托人主张特权；受托人有权在针对他的程序中使用莱莫斯先生单独特权所涵盖的文件。\n\n117. 她主张，若受托人持有受破产人特权涵盖、支持根据section 423 提出的请求以及根据sections 339 and 340 提出的请求的文件，却不能在针对第三方的交易撤销程序中援引该等文件，将是极不寻常的。该结论亦被称从实践角度来看是合理的。\n\n118. 她称，若莱莫斯先生及莱莫斯夫人的主张正确，则Avonwick案的效力将是，受托人可以查阅与破产人资产有关的文件，却不能提起将援引该等文件的请求。这将使section 311 不具有任何实际效力。据称，破产受托人因Avonwick案中有关负债的判决已处于足够困难的境地，不应再在追回破产人资产方面束缚其手脚。\n\n119. 对于受莱莫斯先生和莱莫斯夫人共同特权约束的文件，图布女士主张，一方不能对另一方主张特权，是因为当事人之间不存在保密性。图布女士援引Mr Justice Rix（里克斯法官）在The Sagheera [1997] 1 Lloyds Reports 160 第165页判决中的表述，主张由此可见，如果Withers documents（Withers文件）受莱莫斯先生和莱莫斯夫人的共同特权涵盖，莱莫斯夫人既不能对莱莫斯先生主张该特权，也不能对作为该特权权利继受人的受托人主张该特权。鉴于Avonwick案，据称，与资产有关文件中的特权转移给受托人；受托人取代莱莫斯先生的地位，并可在针对他和莱莫斯夫人的任何程序中使用该等文件。\n\n120. 上述即为图布女士为支持其申请所作的陈述。\n\n121. 洛德先生在其书面及口头陈述开始时，强调了若干他称可能没有争议的事项（图布女士在其口头陈述中亦同意这些事项）。如下：\n\n(1) 特权是一项抵制被强制披露信息的权利。就法律专业特权而言，其适用于载有法律意见的文件，或为获取与诉讼有关的信息或意见这一主要目的而制作的文件。\n\n(2) 特权是一项基本人权，受《European Convention for the Protection of Human Rights and Fundamental Freedoms（保护人权与基本自由欧洲公约）》Article 6 和 Article 8 的保护。\n\n8/15/22, 12:08:00 22-50073 文件 761-3 已提交，第19页，共\n\n(3) 虽然特权可以通过制定法予以废除，但这需要明示文字或必然默示。\n\n(4) 在不存在相反的明示措辞或必然默示的情况下，法院推定，即使是最概括的文字，也意在受个人基本权利的约束。\n\n122. 洛德先生主张，上诉法院在Avonwick案中的判决，是对下列命题具有约束力的判例：\n\n(1) 特权并非破产人的财产，因而不会当然归属于其破产受托人；见Master of the Rolls（卷宗主事官）判决第63段。据称，由此可见，Mr Justice Peter Gibson（彼得·吉布森法官）在Re Konigsberg案中的判决，是基于律师作出的破产人特权已转归其受托人的让步，故该判决在此问题上已不再是有效法律。援引卷宗主事官判决第64段。\n\n(2) 虽然破产受托人根据该法section 311 有权占有载有对破产人享有特权的信息的文件，并为法定的收集及变现破产人财团目的而使用该等文件和其中所载信息，但其不得以未经破产人同意即构成放弃特权的方式如此行事；见卷宗主事官判决第69段。\n\n123. 此外，据称Avonwick案亦构成以下命题的判例：使用特权文件协助第三方对他人提出请求，超出section 305(2)所述破产受托人的法定职能范围；见卷宗主事官判决第84及85段。\n\n124. 据称，在本案中，受托人寻求法院就以下问题作出指示：在未经莱莫斯先生和／或莱莫斯夫人同意的情况下，受托人是否有权在针对Kalliopi Lemos 1994 settlement（Kalliopi Lemos 1994信托安排）的受托人和／或就该财产针对莱莫斯夫人的程序中使用该等文件（并假定该等文件由莱莫斯先生单独享有特权，或由其与其妻子共同享有特权）。据称，该问题的答案显然是否定的。Avonwick案据称适用。不存在任何可以将其区分的依据。\n\n125. 据称，即使Avonwick案能够以某种方式被区分，以致不需要莱莫斯先生的同意，在受共同特权约束的文件情形中，受托人仍将需要莱莫斯夫人的同意。据称，在共同持有特权的情况下，只能由共同持有人共同行使放弃权。据称，受托人并未指出《破产法》的任何规定或一般法律的任何原则，使其有权凌驾于共同特权之上。\n\n126. 在其补充书面论点提纲中，洛德先生提及图布女士的论点，即尽管上诉法院在Avonwick案中作出判决，破产人对与破产财团资产有关、但不与其负债有关的文件所享有的特权，仍根据Crescent Farm案中的原则转归破产受托人。\n\n127. 洛德先生称，图布女士试图区分与破产财团资产有关的文件和与其他事项（例如负债）有关的文件。据称，这一新论点是错误的。其基于破产人资产相关文件与其负债相关文件之间的区分，而该区分根本未出现在卷宗主事官的判决中。据称，该区分没有正当依据。若存在这种区分，据称卷宗主事官本应明确作出该区分。\n\n128. 洛德先生指出，上诉法院判决第5段确定了本上诉中的争点：附随于破产人信息及文件的特权是否为归属于破产受托人的财产，以及受托人可以如何使用该等信息和文件。\n\n8/15/22, 12:20:20 22-50073 文件 761-3 已于 08/07/22 提交，第20页，共\n\n129. Lord先生主张，显然不能在与资产有关的文件和与负债有关的文件之间作出区分。据称，在其判决书第50段中，民事上诉法院院长（Master of the Rolls）确定了法院面前的争议。他明确不同意Arnold法官（Mr Justice Arnold）在一审判决第67和68段中所持的观点，即本案所涉问题是文件中的特权是否已转移给Shlosberg先生（Mr Shlosberg）的受托人，而非该特权是否被废除。他继而表示，从Shlosberg先生的角度看，唯一的问题是，法定破产制度是否使其非自愿地被剥夺了就“文件”（the Documents）所载信息主张其特权的基本权利。民事上诉法院院长表示，他看不出为何Derby Magistrates案、Simms案和Morgan Grenfell案中的原则不应适用于回答该问题。这是指R v Derby Magistrates' Court ex parte B [1996] AC 487；R (Morgan Grenfell & Co Limited) v Special Commissioners of Income Tax [2002] UKHL 21, [2003] 1 AC 563；以及R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115。Toube女士（Ms Toube）指出，第50段提及的是首字母D大写的“文件”（the Documents），即B类和C类文件，而不延及A类文件。\n\n130. Lord先生称，适用所援引的三项上议院（House of Lords）判例所确立的原则——据其所言，受托人的书面论纲竟未提及这些判例——上诉法院（Court of Appeal）表示，法定破产制度的效果并非Shlosberg先生非自愿地被剥夺了就文件所载信息主张其特权的基本权利。Toube女士再次表示，该陈述明确限于B类和C类文件，并不延及A类文件。\n\n131. Lord先生主张，与受托人所称相反，上诉法院确实认定Re Konigsberg案——该案据称在破产背景下适用了Crescent Farm（新月农场）原则——判决错误。他表示，民事上诉法院院长在第64段指出：(1) Peter Gibson法官（Mr Justice Peter Gibson）在该案中的判决以妻方律师承认该特权已转归破产受托人为依据；及(2)该案早于Derby Magistrates案、Simms案和Morgan Grenfell案，而后述案件据称阐明了“正确的方法”。\n\n132. 换言之，据称民事上诉法院院长明确认为，若Peter Gibson法官适用这些案件确立的原则，其将得出不同结论；所有这些案件均强调律师—当事人保密特权的绝对且神圣不可侵犯的性质，而非基于律师作出的承认进行裁决。\n\n133. 民事上诉法院院长在第64段最后表示，Re Konigsberg案的判决：\n\n“……就当前审议的争议点而言，并不正确。”\n\n134. 据称，“当前审议的争议点”是第50段所确定的争议，即法定无力偿债制度是否明示或默示废除破产人的特权。此外，Lord先生主张，民事上诉法院院长在第82段不赞成Re Cook案的判决，该案适用了Re Konigsberg案。该案中所涉的受特权保护的信息，并不限于与破产人负债有关的信息，也包括与其资产有关的信息。Lord先生主张，对Re Cook案不加限定的不赞成表明，在民事上诉法院院长看来，与资产有关的文件和与负债有关的文件之间并无区别。\n\n135. 据称，Avonwick案中的上诉并未涉及A类文件这一事实不具有任何意义；即与郡法院（County Court）中有关对Shlosberg先生的猫进行攻击的诉讼有关的文件。那是因为Arnold法官判决的该方面未被上诉，毫无疑问是因为该争议未被视为十分重要。因此，上诉法院无须审议该问题。Lord先生主张，若其审议该问题，上诉法院无疑会认定Arnold法官关于Shlosberg先生的受托人已取得其在A类文件中的特权利益的判决是错误的。\n\n8/15/22, 12:08:00 22-50073　Doc 761-3　Page 21 of\n\n136. Lord先生主张，上诉法院的判决明确表明，Peter Gibson法官在Konigsberg案中作出的、涉及资产的判决是错误的。他表示，Crescent Farm原则与本案无关。该案并非破产案件。该案仅说明，财产所有人自愿将一份文件移交给该财产的权利继受人时，特权并不丧失或被放弃。Crescent Farm判决中不存在任何违反特权这一基本权利、违反第6条或第8条、或违反上议院三项判例系列中的判决的内容；民事上诉法院院长在Avonwick案中着重援引这些判决，且它们构成民事上诉法院院长裁决的核心基础。\n\n137. Lord先生主张，无论如何，重要的是注意到，Arnold法官就A类文件作出裁决，完全基于Shlosberg先生的律师作出的承认。鉴于上诉法院的判决，现在可以看出，该承认是错误作出的。此外，据称，Arnold法官本人在第132段对该承认的正确性表示怀疑。Arnold法官的推理不涉及受托人现寻求在与资产有关的受特权保护信息和与负债有关的受特权保护信息之间作出的区分。\n\n138. 据称，如上诉法院在Avonwick案中已明确，本案的争议取决于对Derby Magistrates案、Simms案和Morgan Grenfell案这三项上议院判决所确立原则的适用。这些原则未为区分与资产有关的受特权保护信息和与负债有关的受特权保护信息提供任何正当理由。\n\n139. 在Derby Magistrates案中，上议院裁定，律师—当事人保密特权应在所有案件中作为优先的公共利益予以维护，即使特权持有人不再具有任何可识别的维护该特权之利益亦然。根据该案事实，法院认定，该特权甚至优先于确保被控谋杀的被告人能够取得所有相关证据的公共利益。Lord先生表示，很难想象有更有力的例子。\n\n140. Gosforth的Taylor勋爵首席大法官（Lord Taylor of Gosforth CJ）在第508H页至第509A页表示，他认为，一旦律师—当事人保密特权成立，就不应允许对其绝对性质作出任何例外。Berwick的Lloyd勋爵（Lord Lloyd of Berwick）的发言中也有类似表述。\n\n141. 因此，正如民事上诉法院院长在Avonwick案第40至42段所讨论的，确保破产受托人能够履行其收集、变现和分配破产人资产职能的公共利益，无论多么重大，均不足以证明对特权的绝对性质作出哪怕有限例外具有正当性。不存在利益衡量。在这方面，Toube女士承认，她在其书面论纲第50段中对利益衡量的提及属于失当表述。\n\n142. Lord先生称，Simms案和Morgan Grenfell案明确表明，尽管律师—当事人保密特权可以由成文法废除，但这要求有明示措辞或必然默示。若两者均不存在，法院推定即使是最概括的措辞，也意在受个人基本权利的限制。\n\n143. 据称，上诉法院在Avonwick案中的明确观点是，无力偿债立法中的任何相关规定均不能被解读为废除破产人的特权。基于同一理由，第283 (4) 条不能被解释为扩大受托人主张特权的权利，无论是通过必然默示还是其他方式。无论如何，主张特权的权利是一项拒绝披露的消极权利；它不是就财产或与财产有关而可行使的权利。\n\n144. 受托人主张，他们能够援引据称独立于无力偿债立法而发挥作用的Crescent Farm原则，以规避这些判例的效力。Lord先生主张，这一主张是错误的。上诉法院在Avonwick案中以Crescent Farm案并非无力偿债案件为由，将其与本案区分开来（第64段）。这显然是相关区别。\n\n8/15/22, 12:03ANE 22-50073 Doc 761-3 Page 22 of\n\n145. Crescent Farm（Crescent Farm案）涉及第一被告将土地出售给第二被告，以及前者向后者自愿披露享有法律专业保密特权的法律意见。Crescent Farm所裁定的仅是，第二被告作为该土地的权利继受人，能够就该法律意见维持保密特权以对抗第三方，即原告。据称，这与破产案件中的情形截然不同。破产人的资产根据该法第306(1)条，依法律规定归属于受托人。唯一产生的问题是，该规定或《Insolvency Act（破产法）》的任何其他相关规定，是否具有非自愿剥夺破产人基本保密特权的效力，\n\n146. 据Lord先生称，上诉法院（Court of Appeal）在Avonwick（Avonwick案）中的判决是具有约束力的权威，即其并无该等效力。虽然受托人有权为履行其法定职能之目的使用享有保密特权的材料，但其未经破产人同意，不得以放弃保密特权的方式使用该等材料。\n\n147. 因此，据称，在破产情境中不存在适用Crescent Farm原则的空间。据称，Shlosberg先生的律师在Arnold法官（Mr Justice Arnold）面前作出的相反让步是错误的。即使存在适用Crescent Farm原则的空间，据称，该原则也不能成为认定权利继受人可在未经前任权利人同意的情况下放弃其从前任权利人继受的保密特权的依据，更遑论认定其可以利用享有保密特权的信息对抗前任权利人。保密特权是一项阻止提交材料的消极权利。Crescent Farm所裁定的无非是，在前任权利人已向其继受人自愿披露有关已转让资产的享有保密特权的信息时，该等披露并不构成放弃保密特权。\n\n148. Lord先生随后论及根据第423条提出的请求的性质。他主张，Crescent Farm原则仅适用于与已取得的特定资产有关的享有保密特权的信息。为能够援引该原则，受托人必须识别出一项根据第306(1)条归属于其的资产。在Avonwick案中，该资产是与针对猫的袭击有关的郡法院（County Court）判决书，该判决书已归属于Shlosberg先生的破产受托人。\n\n149. 在本案中，据称，申请人无法识别任何保密特权可附着于其上的特定资产。该资产不可能是Hampstead房产本身，因为该房产从未首先归属于Lemos先生，且现已归属于离岸受托人。该资产也不可能是Panagia（Panagia公司）的股份；该公司此前拥有该房产，而其股份已被转入信托安排，但该公司已经解散。\n\n150. 现有的仅是一项根据该法第423条可能提出的请求，而就目前情况而言，受托人甚至尚未决定提出该请求。即使其提出该请求，亦不能称其是作为Lemos先生的权利继受人提出该请求。在被宣告破产前，他从未对其妻子或该信托安排的受托人享有任何请求权，因此不能称受托人是在主张代位于其地位。\n\n151. 此外，Lord先生主张，根据第423条提出的请求并不涉及可适当地被界定为构成破产财产一部分、且受托人负有收回职责的资产。理由如下：\n\n(1) 第423条并非该法第IX部分第IV章的一部分，因此，根据第423条提出请求并非破产受托人根据第305(2)条所负职能的一部分。Lord先生指出，第IX部分第IV章包括第305条至第335条，甚至不包括与破产情境中的低价交易和偏颇清偿有关的第339条或第340条，更遑论并不限于破产案件的第423条。\n\n(2) 相反，第423条位于该法第XVI部分，其标题为“防止逃避债务的规定”。即使没有正在进行的破产程序，亦可根据该条提出请求。\n\n(3) 如附表5第2段和第2A段（此前已引用）在措辞上的差异所承认，根据第423条提出的请求并非涉及构成破产人财产的财产的请求。\n\n8/15/22, 12:08:00 22-50073　Doc 761-3　FileetsBellior/22mosEpaterrend+08823/12010/2024　Page 23 of\n\n相反，这是一项人身请求，不仅破产程序管理人可以提出，任何该交易的受害人均可提出：见第424(1)条。\n\n(4) 如有正式破产程序正在进行，受害人须经法院许可方可根据第423条提出请求。如果该等请求涉及可适当地被界定为构成无力偿债人财产一部分的资产，则该条本应要求受害人寻求破产程序管理人的同意，而非寻求法院的许可。\n\n(5) 第423(2)条规定的救济具有酌处性质，第423(3)条规定了法院可以授予救济前须满足的条件。\n\n(6) 法院就救济而言，根据第423(2)条及第425条享有广泛权力。根据第423条请求所授予的救济不必然涉及将资产转移给破产程序管理人，更遑论任何归属。事实上，第423条至第425条中并无任何规定要求根据第423条起诉并胜诉的受害人将任何追回款项移交给破产程序管理人。\n\n(7) 第423条的措辞与《Bankruptcy Act 1914（1914年破产法）》第42条的措辞大为不同；后者对应于1986年法第339条，Re Konigsberg（Re Konigsberg案）所涉即为该条。\n\n152. 最后，Lord先生称，受托人希望在第423条请求中援用的文件，显然并不限于与特定资产有关的文件，更不用说构成破产财产一部分的资产。事实上，受托人的主要重点似乎是与1994年至2001年期间税务机关调查有关的文件。据称，这些文件涉及前破产人的债务，因此即使按照据称是受托人对Avonwick判决的错误解释，该等文件亦受上诉法院在Avonwick案中的判决所规制。\n\n153. 代表第二被申请人的Shekerdemian女士（Ms Shekerdemian）采纳了Lord先生的主张。就Avonwick案而言，她进一步提出以下六点简要论述：\n\n(1) Avonwick案中在上诉法院出庭的律师并未试图区分债务与资产：见上诉法院判决书第58段。\n\n(2) 区分债务与资产不存在任何逻辑上或原则上的理由。破产受托人既涉及资产，也涉及债务。\n\n(3) 第283(4)条对申请人并无帮助。若该款意在扩展至保密特权，本应明文规定：见上诉法院在Avonwick案中援引并依赖的上议院（House of Lords）三宗判例。\n\n(4) 申请人通过区分债务与资产，并主张资产文件不附有任何保密特权，是在质疑卷宗主事法官（Master of the Rolls）的结论，即要剥夺保密特权持有人的特权，相关立法中必须有明文规定或必然含义。据称，在保密特权延及第三方请求的情况下——如本案所涉——更是如此。\n\n(5) 上诉法院判决书第71段是一项具有普遍适用性的陈述，并未以任何方式限于债务文件。\n\n(6) 上诉法院明确表示，Re Konigsberg案就争议问题而言是错误的。争议问题是Konigsberg案判决的第二项理由。据称，卷宗主事法官在其判决书第64段作出了该等认定。即使第64段所述内容存在任何歧义，据称，卷宗主事法官在第82段就Re Cook（Re Cook案）判例权威所作的评论，也足以使该歧义应作有利于被申请人的解释。该案被明确认定为错误，因为该案中的代理法官错误地遵循了Peter Gibson法官（Mr Justice Peter Gibson）在Re Konigsberg案中的较早判决。\n\n8/15/22, 12:18 PM 22-50073 Doc 761-3 Fileed: 08/10/22 Mostinategread+08/12/10 Page 24 of\n\n154. Shekerdemian女士主张，Esal (Commodities) Limited (No. 2) [1990] BCC 708的理由已在卷宗主事法官判决书第79段中得到说明。该案涉及使用因材料取得方式而受保密义务约束的材料，即通过根据《Insolvency Act（破产法）》法定规定提出申请而取得的材料。诸如Re Esal（Re Esal案）的案件，并不涉及使用因律师职业保密特权而产生既存保密义务所约束的材料。\n\n155. Shekerdemian女士论及第423条请求的性质。她称，该请求是属于有资格提出该请求者本人的请求，并非破产程序管理人专有。作为请求标的的资产仅归属于受让人。\n\n该等请求与涉及已构成破产人财产一部分的财产的请求之间的区别，已由1986年法附表5第2段和第2A段措辞上的差异所承认。第423条请求的前提是被申请人已经处分其资产，而非其仍拥有该等资产。该救济具有酌处性质；即使第423条请求的所有构成要件均获证明，也无权当然获得该救济。不能假定任何第423条请求必然会导致追回本应归属于破产受托人的资产。\n\n156. Shekerdemian女士主张，任何法定归属均不可能产生剥夺Lemos先生主张文件享有保密特权之权利的效力。她援引Derby Magistrates Court（Derby治安法院案）中的段落指出，即使保密特权持有人对主张该特权不再具有任何持续的、可识别的利益，律师职业保密特权仍然存续。尽管Nicholls勋爵（Lord Nicholls）在该案的该方面似乎持有不同观点，但就此而言，他属于少数意见；多数意见持有不同观点，这一点可从向我引述的Taylor勋爵（Lord Taylor）和Lloyd勋爵（Lord Lloyd）发言中的段落看出。\n\n157. Shekerdemian女士主张，Derby Magistrates Court案确立，即使一项资产归属于破产受托人，附着于影响该资产的通信的保密特权亦不会消失。对该原则唯一有限的限制，是第311(1)条所作出的侵入，但该侵入极为有限，并不允许破产受托人以构成放弃保密特权的方式使用享有保密特权的文件。\n\n158. 据称，该分析大体上与Arnold法官在一审中判决书第127至128段的意见一致，该等意见回指第84至87段。其亦与上诉法院在第71段的分析一致。\n\n159. Toube女士（Ms Toube）在答复中确定了法院就Avonwick判决的效力必须提出的五个问题。该等问题为：\n\n(1) Avonwick案一审就与资产有关的文件作出了何种裁定？\n\n(2) 上诉法院是否推翻了其在该方面的裁定？\n\n(3) 因Avonwick案之故，Crescent Farm原则是否仍适用于破产案件？换言之，就资产文件而言，破产受托人是否享有保密特权，并可放弃该特权？\n\n(4) 如存在根据第311条已转归受托人的资产文件，受托人能否放弃该等文件的保密特权？\n\n（5）有关Hampstead property（汉普斯特德房产）的文件是否受Crescent Farm principle（克雷森特农场原则）规制。\n\n160. Toube女士邀请法院对这些问题作出如下回答：\n\n8/15/22，12:26，ABE 22-50073，DOC 761-3，Filed 8/16/22，Page 25 of\n\n161. 第一，Arnold法官裁定，克雷森特农场原则是指，当某一权利继受人取得一项资产时，其亦取得与该资产有关文件中的特权，并可自行选择主张或放弃该特权。Arnold法官裁定，当资产的权利继受人为破产受托人时，该原则适用于破产情形。因此，破产受托人可以主张或放弃破产人在A类文件中享有的任何特权。因此，Dechert（德杰特律师事务所）已阅览A类文件并不存在问题。\n\n162. 然而，Arnold法官还裁定，克雷森特农场原则不适用于与资产无关的任何文件。因此，受托人不能主张或放弃破产人在B类和C类文件中享有的任何特权。因此，存在一个问题，因为德杰特已阅览该等文件，且其不能继续代理Avonwick（埃文威克）。因此，A类中与资产有关的文件与B类和C类中与负债有关的文件之间存在区别。\n\n163. 第二，上诉法院并未就A类文件推翻该裁定。该等文件并非上诉法院审理的争议事项，上诉法院亦未在涉及与资产有关文件的范围内审议克雷森特农场原则。\n\n164. 上诉法院仅审议了两项论点。第一项是，根据《破产法》第436条的解释，特权是否属于独立的财产项目或财产种类。上诉法院裁定，为第436条之目的，非资产文件并非财产。\n\n165. 上诉法院裁定的第二事项是，第311条经正确解释后，是否必然默示破产受托人可以使用享有特权的文件。上诉法院对该问题作出了否定回答。\n\n166. Toube女士主张，这两项争议均与涉及资产文件的克雷森特农场原则无关。上诉法院对此只字未提，也未提及A类文件或Arnold法官就该等文件所作出的裁定。\n\n167. Toube女士就第三个问题主张，克雷森特农场原则仍适用于破产情形。她主张，该原则已由Arnold法官在一审中适用，而上诉法院对此未作任何表述，更遑论上诉法院推翻克雷森特农场原则在破产案件中的适用。\n\n168. 关于第四个问题，Toube女士主张，根据第311条向受托人提供的文件可由其使用，且其可放弃与该等文件有关的特权。就该等文件涉及破产中的资产而言，基于克雷森特农场原则，这是一项适用于包括本案在内的所有破产案件的一般规则。\n\n169. 就问题5而言，本案中的相关文件涉及汉普斯特德房产，而该房产在相关意义上构成一项资产。因此，可以主张或放弃资产文件中特权的，是破产受托人。\n\n170. Toube女士主张，根据克雷森特农场原则，特权归属于作为相关资产权利继受人的破产受托人，且只有破产受托人有权放弃与该等文件有关的特权。她主张，对Arnold法官的批评对于附着于资产文件的特权并无效力。卷宗主事官判决书第65至67段仅处理了处理法条解释问题的正确方法。就Avonwick案中的A类文件而言，破产受托人必定能够放弃特权，否则德杰特便不可能适当地阅览A类文件。\n\n171. 在Avonwick案一审判决书第106段，Arnold法官直接将克雷森特农场原则与破产受托人主张或放弃破产人特权的能力联系起来。他明确表示，应当牢记，在本司法辖区内，受托人通常能够援引克雷森特农场原则。\n\n8/15/22，12:16 AM，22-50073，Doc 761-3，Filed 08/07/22，Page 26 of\n\n172. 当破产受托人作为某项资产的权利继受人取得与该资产有关的文件时，其取得该等文件中的特权，并可由受托人自行选择主张或放弃该特权。该原则适用于破产情形，结果是，在Avonwick案中，德杰特阅览A类文件并不存在问题。应作出的真正区分是与资产有关的文件和与负债有关的文件之间的区分。\n\n173. 被申请人不得不主张，上诉法院必定已就克雷森特农场原则及A类文件推翻Arnold法官，但这并非对上诉法院裁定的适当分析。审视上诉法院作出相关表述的语境极为重要。\n\n174. 从第21段可以清楚看出，上诉法院仅讨论B类和C类文件。A类文件及与其相关的任何问题均未提交上诉法院审理。上诉法院仅须审议负债文件的问题，因为A类文件并未提交其审理。\n\n175. 上诉法院判决书第52段明确说明了所审议的论点，而这些也是上诉法院所关注的仅有两项问题。第51至64段处理特权是否为财产的问题，而该论点在第63段被驳回。正是在该语境下，卷宗主事官继而在第64段作出其所作表述。\n\n176. 第二项论点是，第311条是否已排除特权权利。该问题在第65至83段中讨论。然而，本案申请人并不依赖第311条。其所依赖的是克雷森特农场原则。如申请人所主张，特权已转移给破产受托人，则根本不会产生特权被废除而非被转移的问题。\n\n177. 据称，Cook案的错误可从Arnold法官在第77段的裁定中显见。该案的问题在于，副法官未能确定享有特权的信息所涉及的任何财产。该批评恰恰落入特权本身并非财产这一点之内。\n\n178. 上诉法院在第82段的意见仅涉及第311条的解释，并未处理有关资产的文件。据称，卷宗主事官判决书第82段最后一句清楚表明这一点，其中其表示，副法官未参照正确原则审议第311条的正确解释。这就是Cook案被错误裁定的原因。\n\n179. 因此，Toube女士主张，上诉法院并未推翻Arnold法官。其未就A类文件作出任何表述。\n\n180. 上诉法院在第86段识别并处理了两项论点，该段应被视为界定上诉法院裁定范围的内容。上诉法院并未表示Arnold法官就A类文件而言存在错误。上诉法院未推翻Konigsberg案。若其希望如此，其本应明确表示，就该裁定的第二项要点而言，其正在推翻Konigsberg案。上诉法院亦未明确表示律师作出的让步是错误的。判决书第64段仅记载了律师作出该让步的事实。\n\n181. 例如，从上诉法院判决书第71段可以清楚看出，该案涉及向第三方提供文件：另见第77段。在本案中，法院所关注的是破产受托人就破产人使用文件的权利。申请人主张，不存在保密性，因而也不存在特权。\n\n182．Esal案并未对被申请人有所帮助，因为该案仅涉及就文件使用所作合同承诺的效力。受托人可以对Lemos先生（莱莫斯）使用该等文件；并且，如果关于Avonwick案判决效力的观点正确，破产受托人可以为破产人的任何目的使用与破产人资产有关的文件。\n\n183．Toube女士（图布）主张，财产属于资产，且该项请求依据第423条提出这一事实并无区别。Court of Appeal（上诉法院）在Lemos v Lemos诉讼中认定，完全可以主张Lemos先生于1994年对该财产享有权益，并为使Hampstead房产（汉普斯特德房产）免受债权人追索之目的而处分了该权益。提出第423条请求属于破产受托人的职责之一。\n\n184．第436条中“财产”的定义极为宽泛。其涵盖或有及未来资产，因此亦涵盖依据第423条提出的请求。法院根据第425条可以作出的命令之一，是要求将该财产归属于破产受托人的命令。这与根据Insolvency Act（《破产法》）第339条可以命令给予的救济形式类似。提出第423条请求完全属于受托人的职责范围，并且与破产人财产中的一项资产有关。尽管在已发生破产时，破产管理人以外的请求人须取得法院许可，但这与根据该法第212条第（5）款，分担人须取得法院许可方可提起失职诉讼的要求并无不同。\n\n185．以上即为关于Avonwick案含义及效力这一主要争点的陈述。现在刚过1.05。我将于2.05继续宣读本判决，并在继续审议第363条的范围及潜在适用之前，就该争点作出裁决。因此，我现休庭至2.05。\n\n186．HODGE QC法官（霍奇御用大律师）：我就特权问题作出裁决。\n\n187．务须牢记，Arnold法官（阿诺德）审理的申请之性质，以及Avonwick案中有关律师职业保密特权的裁决产生的背景，进而亦即该事项提交至Court of Appeal（上诉法院）的背景。\n\n188．争点在于，律师事务所Dechert（德杰律师事务所）是否应获准继续同时代理Shlosberg先生（施洛斯伯格）的主要债权人及破产人的破产受托人。为此目的，关于郡法院中针对Shlosberg先生之猫所受攻击的诉讼文件的特权是否已转移给破产受托人，并不重要。如果Shlosberg先生就B类和C类文件不能胜诉，则Dechert曾接触过涉及郡法院就对Shlosberg先生之猫实施袭击所判赔偿的文件这一事实，不会使衡量结果转向另一方。\n\n189．正如Toube女士所指出，Court of Appeal（上诉法院）在其判决第21段明确表示，其在上诉中并不涉及A类文件。因此，我不能将Court of Appeal（上诉法院）的裁决视为对影响诸如A类文件所涉资产的文件具有直接权威性。\n\n190．在第38段中，Master of the Rolls（民事上诉法院院长）确认，Shlosberg先生已提交被上诉人通知书，以额外理由维持判决中的命令。在我的引言性意见中，我提及了该被上诉人通知书的条款；但民事上诉法院院长明确表示，无须在其判决中列明该额外理由的条款。\n\n191．我首先审议Arnold法官的一审判决。\n\n192．在第65至67段中，Arnold法官首先在其面前案件的背景下审议了法定解释的正确方法。他在第65段称，在Morgan Grenfell案中，House of Lords（上议院）认为，鉴于特权的性质，除非法律以明示文字或必要推论予以废除，不应视为该特权已被法律废除。\n\n193．在第66段中，他明确表示，在本案中，被申请人并未主张特权已被废除，而是主张特权已移转给受托人。Shlosberg先生的代理律师主张，将特权从有权享有特权之人非自愿地移转给他人，等同于废除特权。但在第67段中，Arnold法官明确表示，尽管其接受在无明示文字的情况下，法院应谨慎认定某项法定规定具有将特权从特权受益人非自愿地移转给他人的效力，但其认为House of Lords（上议院）在Morgan Grenfell案中阐明的原则并不直接适用于当前争点。\n\n194．我完全确信，Court of Appeal（上诉法院）并未认可该方法。民事上诉法院院长在第50段中记载，Arnold法官曾表示，其认为Morgan Grenfell案所阐明的原则并不直接适用于本案；民事上诉法院院长据此推断，这是因为Arnold法官认为，该案涉及文件中的特权是否已移转给受托人，而非涉及特权是否已被废除。\n\n195．民事上诉法院院长明确表示，其不同意该分析。他指出，从Shlosberg先生的角度来看，唯一的问题是，法定破产制度是否使其非自愿地——我强调“非自愿地”一词——被剥夺了对文件所载信息主张其基本特权的权利。民事上诉法院院长认为，没有理由不适用Derby Magistrates Court案（德比治安法院案）、Simms案（西姆斯案）及Morgan Grenfell案中的原则来回答该问题。\n\n196．我接受Toube女士提出的观点，即对“该等文件”的提述是指B类和C类文件，而非A类文件；但我不能忽视民事上诉法院院长对Arnold法官如下方法的否定，即法院在本案中并不涉及特权的废除。依我之见，从破产人的角度来看，Toube女士主张的效果是，就与资产有关的文件而言，破产人被非自愿地剥夺了对文件所载信息主张其基本特权的权利；在审议与资产有关的文件时，必须牢牢记住这一因素，例如Avonwick案中被认定属于A类的文件。\n\n197．回到Arnold法官的裁决，在概述被申请人的论点时，Arnold法官在第68段记载，就A类文件而言，该诉讼在破产前已作出有利于Shlosberg先生的损害赔偿判决，而应付Shlosberg先生的判决债务属于第436(1)条所称的财产。随后他表示，因此，受托人作为该财产的权利继受人，取得了该特权的利益。\n\n198．当然，这仅是对被申请人为支持其主张所提出的相关论点的记载。还须进一步审议对该论点的回应。\n\n199．该回应载于Arnold法官判决第70段。该段记载，Shlosberg先生的代理律师承认，如某项财产的所有权作为破产人财产的一部分移转给破产受托人，则有关该财产而记录寻求及提供法律意见的文件，或为有关该财产的诉讼之主要目的而制作的文件中的特权利益，亦移转给受托人。\n\n200．但该代理律师主张，该原则仅适用于存在记录特权信息的文件以外的某项财产之情形。他主张，高等法院的判决当然是对Shlosberg先生不利而非有利的判决，并非第436(1)条所称的财产。然而，Arnold法官指出，尽管其并未承认郡法院作出的有利于Shlosberg先生的判决属于第436(1)条所称的财产，但其并未提出任何相反论点。因此，A类文件中的特权是否与Shlosberg先生的一项资产有关，显然并未在Arnold法官面前得到争论。\n\n201．在第71至97段中，Arnold法官提及多项有关特权承继的判例，尤其是在破产背景下的判例，并按时间顺序予以审议。\n\n202．第一项并非破产案件，而是Crescent Farm案（月牙农场案）。他记载，Goff法官（戈夫）认定，第二被告作为第一被告就该土地的权利继受人而取得文件，故可主张特权；其在交易完成前取得文件这一事实并不重要。\n\n203．Goff法官所做的一切，只是裁决权利继受人能否主张特权的问题。他并未裁决何人可以放弃该特权。他无须审议放弃权能否由继受人单独行使，还是还须取得原特权持有人的同意。该案并不涉及放弃特权，而是涉及主张特权。\n\n204．Arnold法官以下列措辞载明Goff法官所述的适用原则：\n\n“……显然已经确立的是，前权利人的律师职业保密特权为其权利继受人的利益而延续。”\n\n205. 其中没有任何关于放弃特权以及谁有权作出该放弃的内容。Mr Justice Arnold（阿诺德法官）将该原则称为“Crescent Farm principle（新月农场原则）”。\n\n206. 在第73段中，阿诺德法官提及Mr Justice Peter Gibson（彼得·吉布森法官）在Konigsberg case（Konigsberg案）中的裁决。他全文引述了彼得·吉布森法官判决书第1266至1267页的相关段落。\n\n207. 在第75段中，阿诺德法官记载，各方一致认为，彼得·吉布森法官在该段落中是以新月农场原则为依据作出裁决的，相关财产为丈夫在婚姻住所中的权益。据称，这已足以处理该案中的争议。看来并未有人依据第436(1)条中“property（财产）”的定义，或依据1986 Act（1986年法）第283(4)条提出任何论点。\n\n208. 随后，阿诺德法官审议了Re Cook案的裁决，并就High Court（高等法院）副法官Mr Burnton QC（Burnton御用大律师）的推理作出若干评论。正如Ms Toube（Toube女士）所指出的，他的一项评论是，尽管Burnton法官声称适用了Konigsberg案，但其并未确定享有特权的信息所涉的财产；他似乎认为，就此目的而言，特权一般性地涉及破产人的财务事务即已足够。他还记载，Burnton法官似乎接受，与个人事项有关的特权不会归属于受托人。\n\n209. 在第99段中，阿诺德法官表示，已经明确确立的是，记载就特定财产相关法律意见的请求或提供，或为就特定财产提起诉讼的主要目的而制作的文件所附特权利益，会随该财产的所有权一并转移。正如Konigsberg案所示，该原则适用于破产情形。但他说，在作出“为此目的，破产受托人是权利继受人”之类的表述时，必须谨慎。他表示，受托人当然可以为此目的成为权利继受人，但这并不必然意味着受托人继受破产人所享有的一切特权利益。\n\n210. 在转而详细审议被申请人的论点之前，阿诺德法官在第103至106段作出了一些一般性意见。他以第311(1)条作为出发点。这表明，立法机关在制定1986年法时已经考虑到特权问题。然而，该法并未规定破产人的特权应转移给其受托人。相反，该法规定，特权并不妨碍受托人行使其权力，以取得与破产人财产或事务有关的文件。即使有所表明，这也被认为表明破产人可能保留其特权。\n\n211. 然而，正如被申请人的律师所指出，受托人可能占有属于第三方的文件。被申请人的律师提出，因此特权可能属于该第三方。阿诺德法官表示，这可能如此，但该问题并未在本案中出现，且无须裁定该观点是否正确。\n\n212. 随后，他处理了Konigsberg案，并表示他同意彼得·吉布森法官的意见，即第311(1)条似乎隐含地规定，受托人可以在履行其法定职能时，使用其依第311(1)条占有的文件中所载的信息，包括享有特权的文件。\n\n213. 他不同意Mr Justice Pumfrey（普姆弗里法官）在另一案件中的观点，即因此若受托人不能主张或放弃特权，将构成反常。他同意一名Canadian judge（加拿大法官）的意见，即在非为诉讼目的而使用享有特权的文件所载信息，与为诉讼目的而使用该等信息之间存在区别。\n\n214. 这使他转而审议一个更一般性的问题，即为适当履行职责，受托人需要在何种程度上能够主张或放弃破产人的特权。据称，被申请人的律师即使未明确提出，也暗示受托人能够这样做至关重要。与加拿大和澳大利亚的情形相比表明，情况并非如此。随后，阿诺德法官补充道：\n\n“此外，应当牢记，在本司法管辖区内，受托人通常能够依赖新月农场原则。”\n\n215. 我认为，阿诺德法官确实认为新月农场原则适用于资产文件。然而，显然他对该原则有所保留。在第108段中，他表示，依其判断，显然新月农场原则并不取决于权利继受人取得记载享有特权的信息的文件所有权，而是取决于权利继受人取得法律意见或诉讼所涉的其他某项财产。再者，我认为他在此认可了新月农场原则。\n\n216. 在第126段中，还明显进一步认可了新月农场原则；该段提及Mr Shlosberg（Shlosberg先生）的律师提出的另一项主张，即即使特权原本会构成第436(1)条所指的财产，或构成第283(4)条所指的对财产的权力，也因专属于破产人的财产例外而被排除在这些规定的范围之外。阿诺德法官提及该律师接受，此项主张受制于“如Konigsberg案中所示”的新月农场原则的适用。\n\n217. 第129至132段审议了A类文件的情况。阿诺德法官记载，被申请人的律师已接受，County Court（郡法院）诉讼的争议标的专属于Shlosberg先生，但其主张，有利于Shlosberg先生的判决债权并非专属于其个人，且属于第436(1)条所指并归属于受托人的财产。\n\n218. 在第132段中，阿诺德法官表示：\n\n“鉴于该判决归属于受托人，被申请人的律师主张，依适用新月农场原则，相关文件中的特权也随之归属于受托人。我承认，对于这是否必然成立，我有一些疑问；但由于Shlosberg先生的律师未提出相反主张，我将接受被申请人的律师的主张。”\n\n219. 在第142段中，阿诺德法官阐述了其结论：\n\n“……我接受被申请人的第三项论点，但不接受第一、第二或第四项论点。因此，我得出结论，受托人取得了Shlosberg先生就A类文件享有的特权利益，但未取得就B类或C类文件享有的特权利益。”\n\n220. 我从对阿诺德法官一审判决整体的上述分析中所理解的是，阿诺德法官确实接受新月农场原则适用于资产文件，但其仅因无人提出相反论点而如此认定，且有所保留。\n\n221. 鉴于Court of Appeal（上诉法院）并未认可阿诺德法官关于特权的非自愿转移不构成对特权的废止的观点，我认为，阿诺德法官的裁决，即使其确实构成裁决而非仅仅基于案件在其面前提出论证的方式，也并非将新月农场原则适用于个人破产案件的先例；并非以具有权威性的依据认可彼得·吉布森法官在Konigsberg案中的做法；且并不决定我必须在本项申请中裁定的争议。\n\n222. 现转而审议上诉法院的裁决。鉴于Master of the Rolls（卷宗主事官）在上诉法院中强调House of Lords（上议院）三宗案件，我提醒自己Lord Hobhouse（霍布豪斯勋爵）在Morgan Grenfell case（Morgan Grenfell案）中所述的内容。\n\n223. 在第44段中，霍布豪斯勋爵表示，普通法给予有权主张律师职业保密特权者的保护，是普通法的一项基本原则。Lord Hoffmann（霍夫曼勋爵）在同一案件第10段中亦作出了大致相同的表述。我认为，这一考量构成上诉法院在Avonwick案中裁决的基础。\n\n224. 卷宗主事官在第59段及其后审议了新月农场原则和Re Konigsberg案。他认为，Crescent Farm case（Crescent Farm案）确认，已经明确确立的是，前权利人的特权利益为其权利继受人的利益而发生效力。因此，Mr Justice Goff（戈夫法官）在Crescent Farm案中支持了一项特权主张。\n\n225. 卷宗主事官继而在第60段审议Konigsberg案。他指出，彼得·吉布森法官基于两项独立理由，驳回了妻子要求排除由共同受聘处理婚姻住所出售事宜的律师所作宣誓书证据的申请。\n\n226. 第一项理由是，妻子在宣誓书中提及与该律师的通信，并将其来信作为附件，因此放弃了特权。仅此一项即足以证明彼得·吉布森法官在该案中作出裁决是正当的。没有任何迹象表明该裁决的该方面有误。\n\n227. 卷宗主事官继而记载，第二项理由是，破产受托人就破产人在其债权人之间可分配的所有资产而言，是破产人的权利继受人，包括根据第42条可撤销的和解所转移财产的权利（相当于1986年法第339条）；并且依Crescent Farm案，作为权利继受人继受并有权主张破产人的特权。\n\n228. 卷宗主事官记载，从第1267B页可见，妻子的律师似乎已接受破产人的相关特权已归属于受托人。彼得·吉布森法官认为，该特权属于破产人与妻子的共同特权，而受托人已取代破产人的地位，因此适用通常规则：特权的一名共同持有人，即妻子，不能针对另一名共同持有人，即受托人，维持该特权。\n\n229. 在第63段中，卷宗主事官认为，依1986年法相关规定的正确解释，特权并非破产人的财产，因而不会自动归属于破产受托人。依Morgan Grenfell案及Simms cases（Simms案），只有1986年法明确如此规定，或者这是其规定明文措辞的必然含义，破产人才可能被剥夺特权。他指出，所有相关规定均为一般性表述，并未明确将特权视为自动从破产人转移至受托人的破产人财产，且这也并非该等规定的必然含义。\n\n- 230. 民事上诉法院院长在第64段中表示，Crescent Farm（新月农场案）和 Re Konigsberg（康尼斯堡案）并不妨碍其结论。他指出，Crescent Farm 案并非破产清偿案件；换言之，他是在说 Crescent Farm 并不当然适用于破产清偿程序。他本还可以指出，Crescent Farm 涉及的是主张特权，而不是放弃特权。\n\n- 231. 民事上诉法院院长继而表示，在 Re Konigsberg 案中，律师承认法律专业保密特权已转由破产受托人承继。随后他补充说，更关键的是，Re Konigsberg 早于 Derby Magistrates Court（德比治安法院案）、Simms（西姆斯案）及 Morgan Grenfell（摩根·格伦费尔案）；后述案件确立了正确的处理方法，因此，彼得·吉布森法官毫不意外地未适用这些案件中的原则。就目前正在审议的问题而言，该案“并不正确”。\n\n- 232. 我不认为民事上诉法院院长关于 Konigsberg 案“就目前正在审议的问题而言并不正确”的意见，仅限于债务文件。在我看来，“正在审议的问题”是彼得·吉布森法官裁决所依据的前提是否正确。该前提是，破产受托人已取代破产人，承继其所享有的特权。\n\n- 233. 在我看来，正确解读民事上诉法院院长的判决，尤其考虑到其提及上议院三宗案件，他意在表达的是：仅因特权由破产人享有，受托人并不当然取代其地位。该意见并非明确针对债务文件，也不应限于仅延伸适用于债务文件。在我看来，即使文件影响破产人的资产，该意见亦适用于此类文件。\n\n- 234. 民事上诉法院院长在第70段明确表示，“适用原则”是 Derby Magistrates 案、Simms 案和 Morgan Grenfell 案所阐明的原则，并应始终关注特权作为一项基本权利的地位。第311条的明文规定了受托人取得其中所述文件占有的义务，但对受托人如何使用该等文件只字未提。第311条必然默示，受托人应取得该等文件的占有，以履行收集、变现及分配破产人财产的首要职能。因此，他至少必须有权查阅该等文件，以获取与该等事项有关的信息。但民事上诉法院院长继而在第71段表示，即便从债权人的角度看此举可取，也未必能默示受托人可为破产人财产的利益而对第三方采取措施时放弃破产人的律师职业保密特权。\n\n- 235. 呼应霍布豪斯勋爵在 Morgan Grenfell 案中的措辞，即使议会将此种权力纳入法条本属明智或合理，也不意味着鉴于该法条的明确文字，该权力必然可被默示。\n\n- 236. 民事上诉法院院长在第82段明确表示，基于其所述理由，相关原则并不载于 Re Konigsberg 案，而载于 Derby Magistrates 案、Simms 案和 Morgan Grenfell 案。特权并非构成破产人财产的一部分、且归受托人所有的破产人财产。在 Re Cook（库克案）中，副法官并未参照正确原则审议第311条的正确解释。\n\n- 237. 我不认为民事上诉法院院长不赞同副法官在 Re Cook 案中的裁决，仅仅是因为其未识别出该享有特权的信息所涉的财产。在我看来，民事上诉法院院长对 Re Cook 案的异议更为根本。副法官未考虑律师职业保密特权概念所隐含并体现的、总体性的基本人权。\n\n8/15/22，12:26 AM　22-50073　文书 761-3　已提交　已录入　C632716012624　第33页\n\n- 238. 我接受阿诺德法官关于A类文件的裁决未被明确推翻，但该裁决并未在向上诉法院提起的上诉中受到质疑。这是因为，如我所述，A类文件的地位和重要性实际上无关紧要。\n\n- 239. 我确信，阿诺德法官表面上的裁决，是基于该案申请人律师就一项与申请及上诉中实际出现的争点无关的事项所作出的让步。我注意到，阿诺德法官本人对该让步是否适当持保留态度；但由于未有人提出相反论点，他未对此提出异议，因为该让步无论如何均不影响其面前申请的结果。\n\n- 240. 我确信，若阿诺德法官认为 Re Konigsberg 即使对资产文件亦适用于破产清偿程序，则该裁决与上诉法院后来在 Avonwick（埃文威克案）中的意见及推理不一致，故不应遵循。\n\n- 241. 基于我已说明的理由，并接受被申请人的陈述，我确信上诉法院实际上推翻了彼得·吉布森法官在 Re Konigsberg 案中裁决的第二项理由。\n\n- 242. 我确信，正确解读并分析上诉法院在 Avonwick 案中的裁决可知，Crescent Farm 原则即使对于资产文件，也与债务文件一样，不适用于破产清偿程序。我确信，两类文件之间不应作出区分。洛德先生所提及的考量亦进一步支持该结论，即在某些案件中，将两类文件作出明确界线的区分将十分困难。\n\n- 243. 因此，转而处理图布女士在其口头陈述结尾提出的问题，我认为，阿诺德法官在 Avonwick 案中实际上并未裁定特权是否随资产一并转移给破产受托人。他可能准备基于 Crescent Farm 原则接受该结论。但在我看来，若其确实持有该观点，则该观点与上诉法院后来的推理及意见不一致，因为其未充分重视律师职业保密特权的必要性；而将 Crescent Farm 原则适用于向破产受托人非自愿转移资产，正如民事上诉法院院长所认识到的，等同于废除特权权利。\n\n- 244. 对于资产中财产自愿转移的情形，我绝不质疑 Crescent Farm 原则，尽管我指出，即使以此为基础，Crescent Farm 亦非关于谁有权放弃该等文件中之特权、而有别于主张该特权的权利的判例依据。但我确信，该原则不适用于向破产受托人转移财产的情形；若彼得·吉布森法官认为其适用，则 Re Konigsberg 案裁决有误。该裁决本身可根据两项理由中的第一项，即放弃特权，而得到支持。\n\n- 245. 基于我已说明的理由，我确信，若阿诺德法官认为资产文件中的特权转移给破产受托人，则该裁决已被上诉法院事实上推翻。我确信，鉴于上诉法院在 Avonwick 案中的裁决，Crescent Farm 原则不再持续适用于破产清偿案件。\n\n- 246. 即使我的上述判断有误，我仍会认定 Crescent Farm 原则不适用于涉及作为第423条请求标的之财产的文件。我会接受被申请人的陈述，即使按照《破产法》第436条中“财产”的极宽定义，根据第423条请求获得的任何追偿，亦并非对构成破产人财产的财产所作的追偿。但我无需进一步展开，仅指出我接受被申请人在该方面的陈述，以及其援引1986年法案附表5第2段与第2A段措辞之间的对比。\n\n- 247. 因此，我对图布女士在其口头陈述结尾提出的五个问题作出不利于申请人的回答，并接受被申请人就该等事项所作的陈述。\n\n8/15/22，12:08:00　22-50073　文书 761-3　已提交\n\n- 248. 因此，如 Crescent Farm（新月农场）原则不适用，我须考虑《Insolvency Act（破产法）》第333条和第363条是否可由破产受托人援用；以及，原则上，是否可以命令 Lemos先生（莱莫斯先生）放弃其就已向破产受托人披露或仍由 Withers（伟凯律师事务所）持有的任何文件所享有的特权？\n\n- 249. Toube女士（图布女士）承认，只有在受托人如我所认定的那样，在其对 Avonwick 案后法律的分析上存在错误时，才需考虑法院是否可命令 Lemos先生放弃特权。在该情况下，Toube女士主张，破产法院必然更显然地拥有权力，可强制 Lemos先生合作，从而促进受托人履行其职能。她承认，Avonwick 案并未审议该问题。\n\n- 250. 关于法院的权力，Toube女士主张，第333条对破产人施加义务，要求其在受托人可合理要求的范围内，与其受托人合作履行职能。第363(2)条使对破产程序拥有监督管辖权的法院能够强制该等遵从。\n\n- 251. Toube女士主张，原则上，受托人如合理要求破产人同意放弃特权，并且破产人如此行事将有助于其受托人为破产财产的利益追索资产，则该概念并无困难。她主张，就法定解释而言，第333条必然意味着，破产人有义务配合一项合理请求，即同意放弃特权，以协助受托人履行其职能。\n\n- 252. 第363条不受限制的措辞意味着，法院能够在适当案件中指示破产人通过同意放弃其特权，以纠正该等不合作行为。Toube女士指出，或许并不令人意外，鉴于 Avonwick 案之前的通常理解是受托人为一切目的承继破产人的特权，关于这一特定问题并无判例，即废止破产人主张特权以阻止其受托人履行职能的能力。\n\n- 253. 但 Toube女士主张，该论点并非没有类似先例。她指出，在 Bishopsgate Investment Management Limited（毕晓普斯盖特投资管理有限公司）v Maxwell [1993] Ch 1 一案中，上诉法院认为，《Insolvency Act》第235(2)条赋予的权力，即如有合理要求，可要求公司高级管理人员及前高级管理人员到破产管理人处报到，该权力隐含废除了该等董事免于自证其罪的特权。她还指出，法院能够运用其权力向破产人作出指示，以间接方式实现符合破产法定制度目的的结果。\n\n- 254. 她举例指出，在 Ashurst v Pollard [2000] 2 All ER 772 一案中，Jacob法官（雅各布法官）对一名破产人作出对人裁定，命令其将位于葡萄牙的财产转让给其破产受托人；在该情形下，就管辖权而言，任何要求出售该财产的程序均必须在葡萄牙法院提起。\n\n- 255. Toube女士主张，该等权力的存在本身并无任何令人惊讶之处。指示破产人放弃其特权的能力是破产制度的介入。据称，这至多——且可以说远少于——第306条剥夺破产人资产所产生的影响。\n\n- 256. 该等权力亦非不受限制，因为受托人必然须证明破产人存在不合理行为，而监督破产程序的法院则须权衡债权人的相竞利益与破产人希望保留其特权的意愿。实际上，如确有必要寻求法院协助，有时可能只需指示破产人同意在文件将予保密的条件下向第三方出示该文件，从而保留对世界上其他所有人而言的特权放弃。\n\n8/15/22, 12:16:08:00 22-50073　文书 761-3　提交：08/07/22　登记：08/25/102024　第35页，共\n\n- 257. 第一被申请人一方的 Lord先生（洛德先生）主张，上诉法院在 Avonwick 案判决所依据的推理同样适用于第333条和第363条。上诉法院在 Avonwick 案中推理的实质是，只有在《法》明文规定，或该等剥夺为《法》条款明示措辞的必然含义时，破产人才可被剥夺律师—当事人保密特权。\n\n- 258. 第333条并未明文要求破产人在破产受托人提出要求时放弃律师—当事人保密特权；亦不能说，根据第333条的明示文字，从逻辑上可推知议会意图允许援用该条所设立的合作义务，以强制破产人放弃其律师—当事人保密特权。实际上，鉴于特权的根本性质，如此系议会的意图，将极为令人惊讶。因此，法院必须推定，该条的一般性措辞意在受制于个人的基本权利，例如特权。\n\n- 259. Lord先生主张，援引上诉法院在 Bishopsgate 案中的判决是错误的。首先，该案中法院须处理的问题是清算人取得管理公司事务所需信息的法定权利。上诉法院认为，不得援引免于自证其罪的特权来挫败该权利。\n\n- 260. 据称，本案中的问题不同。毫无争议，受托人有权查阅受特权保护的信息，并为履行其法定职能之目的使用该等信息，前提是，如上诉法院在 Avonwick 案中所认定的，未经破产人同意，他们不得放弃律师—当事人保密特权。真正的问题是，是否可以强制破产人给予该等同意。\n\n- 261. 其次，Bishopsgate 案早于上议院在 Simms 和 Morgan Grenfell 两案中的判决，也早于 Derby Magistrates 案。\n\n- 262. Lord先生指出，在 Bishopsgate 案中，上诉法院确认了 Hoffmann法官（霍夫曼法官）的判决；该法官认为自己受 Vinelott法官（维内洛特法官）一项较早判决的约束，并拒绝发表其自身的任何意见。Lord先生冒昧主张，Hoffmann勋爵后来在 Morgan Grenfell 案演讲中所说的话——即法院通常会将法规中的一般性措辞解释为并非意图推翻基本人权，尽管若按字面理解其能够产生该等效果——导致如下观点：若 Hoffmann法官未认为自己受较早判例约束，其判决很可能会不同。\n\n- 263. Lord先生还主张，从第333条及为协助该条而制定的第363条的措辞可清楚看出，该等条款仅延及为履行受托人在本组各部分任何一部分项下职能所合理需要的事项。这不包括根据第423条提起请求，或协助第三方提起该等请求。这并非受托人在第二组各部分项下职能的任何组成部分，因此破产人并无根据第333(1)条与该等请求合作的义务。受托人根据第314条和附表5第2A段有权提起该等请求，并不意味着该请求属于其法定职能之一。\n\n- 264. Lord先生进一步主张，即使可以援用第333条施加的义务，以及可根据第363条请求法院提供的进一步协助，以推翻破产人的特权，也只能在例外情况下如此。这是因为，法院必须以与《European Convention for the Protection of Human Rights and Fundamental Freedoms（保护人权与基本自由欧洲公约）》相一致的方式解释该条，并且必须考虑欧洲人权法院的判例法。\n\n- 265. 该法院认为，地方性专业特权仅可在例外情况下被侵犯。据称，本案不存在任何例外情况。破产受托人未识别出任何足以证明其所寻求命令正当的情况。\n\n8/15/22, 12:28:26 22-50073 文书 761-3 提交：08/07/22 登记：08/25/22 第36页，共\n\n266．无论如何，应当指出，第333条并未向第二被申请人施加任何合作义务。即使能够强制前破产人放弃特权，该等放弃对于共同享有特权的文件亦不发生效力。\n\n267．在其口头陈述过程中，Lord先生（洛德先生）主张，必要性并非将一项法规解释为废除特权的充分理由。他主张，既然如我所认定，特权仍归属于破产人，若议会意图允许法院命令破产人放弃其特权，则本应使用明确措辞。\n\n268．他还主张，以第363条为依据的论点实质上与Avonwick案中的第二项上诉理由相同，而该理由已被Court of Appeal（上诉法院）驳回。他主张，Toube女士（图布女士）的论点与上诉法院推翻Re Cook案判决的做法不一致。无论如何，他主张，第333条项下的管辖权只能逐份文件行使。\n\n269．Lord先生的核心观点是，尽管破产受托人有权取得享有特权文件的占有，但Avonwick案明确表明，未经Lemos先生（莱莫斯先生）同意，受托人不得以任何侵犯其对该等文件所享特权的方式使用该等文件；法院不应允许通过后门实现无法通过正面直接进入实现的结果。\n\n270．Shekerdemian女士（谢克尔德米安女士）主张，第363条并不能帮助破产受托人间接取得Lemos女士（莱莫斯女士）对其单独或共同享有特权的文件的特权放弃。正如Re Ouvaroff [1997] BPIR 712案的判决所明确，她不能被迫在放弃其特权的情况下提交文件。她主张，难以理解第363条如何能够以该种方式使用，或者如何能够就Lemos女士享有特权的文件使用。\n\n271．应我的建议，双方当事人向我提交了Court of Appeal（上诉法院）最近在Re Henry, Horton v Henry [2016] EWCA Civ 989案中作出的判决，该案载于[2017] 1 WLR 391。该案涉及破产人在养老金计划下收取款项的未行使权利。法院面临的问题之一是，法院或破产受托人是否有权指示破产人行使其可选择的领取养老金计划收入的选择权，从而为法院根据Insolvency Act（《破产法》）第310条作出收入支付命令的管辖权奠定基础。\n\n272．法院裁定，1986 Act（1986年法）第333条并未授权破产受托人指示作为保单持有人的破产人应如何行使其可选择的权利，第363(2)条亦未授权法院命令破产人如此行事。\n\n273．Court of Appeal（上诉法院）的观点是，一审法官认定破产人尚未确定的养老金权利不应为第310条之目的作为其收入的一部分予以评估，是正确的；因此，鉴于受托人无权强制破产人确定其任何养老金权利，收入支付命令的申请被驳回。\n\n274．Shekerdemian女士引导我查阅了Court of Appeal（上诉法院）判决第38段，该判决由Gloster法官夫人（格洛斯特法官夫人）作出。她在该段指出，如果受托人实际上能够仅凭根据第333条提出请求或根据第363(2)条取得法院命令，就要求破产人将其全部养老金用于清偿债权人的债权，进而将被排除的财产转化为可作出收入支付命令之目的的收入，这将彻底破坏1986 Act（1986年法）和养老金立法对破产人养老金权利所提供的保护。\n\n275．类推而言，Shekerdemian女士主张，在法规未授权破产受托人实施该等放弃的情况下，不能命令破产人放弃特权以协助收回财产。她主张，如果法院能够根据第363条，协助破产受托人根据第333条提出请求，而指示破产人——更不用说第三方——放弃特权，这将彻底破坏Court of Appeal（上诉法院）在Avonwick案中的判决，以及其他关于隐私和European Convention for the Protection of Human Rights and Fundamental Freedoms（《保护人权与基本自由欧洲公约》）的判例。\n\n8/15/22, 12:20:00　22-50073　文件761-3　Filed 08/07/22　Page 37 of\n\n276．在答复中，Toube女士明确表示，破产受托人并未寻求命令Lemos女士放弃其对文件享有的特权，而仅寻求命令Lemos先生放弃其特权。她主张，法院有酌处权推翻即使是一项基本权利。Court of Appeal（上诉法院）已在Bishopsgate案中就反对自证其罪特权如此做过，其亦可就一般特权如此做。\n\n277．Horton v Henry案被认为可予区分，因为该案涉及破产受托人无法利用第333条和第363(2)条项下的法定权力来规避Insolvency Act（《破产法》）的一项明确规定。但这并非申请人在本案中所寻求实现的结果。她请求法院逐案考虑是否使用第363(2)条项下的权力，要求Lemos先生放弃其对特定文件享有的特权。\n\n278．就此问题，我再次倾向于接受被申请人的陈述，而非申请人的陈述。我接受如下主张：特权是一项基本人权，法院无管辖权指示破产人——更不用说第三方——放弃其对任何文件享有的特权。\n\n279．依我之见，正如先前援引的一系列House of Lords（上议院）判例以及Avonwick案中Master of the Rolls（民事上诉法院院长）所承认，特权权利是一项如此基本的原则，以至于只有第363(2)条本身明示赋予放弃特权的权力，才能赋予法院命令作出该等放弃的管辖权。\n\n280．依我之见，这与其说是酌处权问题，不如说是管辖权问题。但即使我对此有误，在原则上，法院要适当地命令破产人就文件放弃律师—客户特权，也必须确立一个极其有力的理由。根据目前获得的意见，尤其鉴于Derby Magistrates' Court案，我难以设想任何适宜作出该等命令的情形。\n\n281．那么，这对本申请有何后果？依我之见，除就Withers（威瑟斯）所持任何剩余文件作出的命令条款外，我应当直接驳回该申请。不宜将其延期，以便法院随后着手识别那些可能完全不享有任何特权的文件，或那些可以适当援引不法行为例外的文件。\n\n282．依我之见，适当做法是驳回该申请的其余部分，并由破产受托人自行决定：如其希望就特定已识别文件提出个别申请，即可如此行事。本申请是以概括性而非特定文件为基础提出的；在该等情况下，允许破产受托人在本申请框架内获得第二次机会并不适当。\n\n核准判决书（2）\n\n283. HODGE（霍奇）法官 QC：本判决书是对我在今天庭审过程中作出的篇幅较长的即席判决书的补充，并应与之结合阅读。\n\n284. 我首先必须考虑的问题是，应如何处理命令的形式。该问题涉及命令中应载明的指示，即与针对前破产人 Lemos（莱莫斯）先生可能提起的任何程序有关时，可如何使用（如可使用）享有特权的文件。\n\n285. 该命令的这一方面带有一定不现实性，因为考察提出本申请的理由以及寻求加急处理的背景，实际上并无任何迹象表明将仅针对前破产人提起任何程序。\n\n286. 紧急证明书记载，我判决书所涉文件与破产受托人就前破产人实施的交易进行的调查相关；该等交易可能构成 1986年《破产法》第423条所称的欺诈债权人交易。据称，具体交易涉及第一及第二被申请人的价值极高的婚姻住所如何被置入离岸信托，并登记在两名离岸受托人名下。\n\n287. 第一被申请人的姐妹兼判决债权人已根据第423条提起程序；该债权人事实上是其破产案中的主要债权人。第二被申请人作为第一被申请人的妻子，已作为第三被告加入该程序；她将积极抗辩该程序，而第一及第二被告，即离岸受托人，看来采取中立立场。\n\n288. 正是在该程序及破产受托人自身调查的背景下，据称破产受托人应尽快明确如何处理及使用该等文件，具有重要意义。\n\n289. 显然并未预期前破产人 Lemos 先生本人会成为任何程序的一方。然而，在 Toube（图布）女士为支持本申请提交的书面提纲第58.2段中，她提出，即使申请人对上诉法院在 Avonwick（阿冯威克案）中判决的解读有误（据称并无此误），Lemos 先生也不可能在破产受托人针对 Lemos 先生提起的程序中，对破产受托人主张该等文件具有保密性。\n\n290. 所提出的观点是，Avonwick 仅涉及针对第三方使用文件。据称，无论如何，享有特权的文件仍可用于对抗破产人。据称，Lemos 先生不能对破产受托人主张特权，且破产受托人有权在针对他的程序中使用受 Lemos 先生特权保护的文件。\n\n291. 因此，有人以举例方式提出，破产受托人有权在针对破产人申请收入支付令或中止破产人自动解除破产程序的程序中，援引破产人享有特权的材料。\n\n292. Toube 女士承认，若我在命令中加入一项规定，即破产受托人无权以放弃 Lemos 先生特权的方式使用 Withers（维瑟斯）文件，则该规定将反映上诉法院民事上诉法院院长在 Avonwick 中代表上诉法院所作判决第86段表述该事项的方式，但不会解决该问题。Toube 女士请求法院作出该等解决。\n\n293. Lord（洛德）先生提交意见称，我不应处理实质上属假设性的问题，而应仅采纳第86段中的表述。他称，他希望就我的判决书在何种程度上可能允许或不允许破产受托人在仅针对 Lemos 先生的程序中使用享有特权的文件，提出完整而适当的陈述，因为他认为该问题纯属假设性问题。他称，他尚未就该问题向我陈述意见，且我无需对此作出裁决。\n\n294. 若我能够在 Trinity Term（圣三一学期）结束及 Long Vacation（夏季法定休庭期）开始之前，就该问题听取陈述意见，则无论该问题多么假设性，我本会希望在判决书中处理这一额外方面。但是，由于律师已有预先安排，双方均承认，我在学期结束前听取有关该问题的完整陈述意见并不现实。\n\n295. 只有在双方有机会审议并消化我的即席判决书记录稿后，才能合理地以书面形式提交该等陈述意见。在未来两周内，根本没有时间完成该项工作、拟定书面陈述意见，然后在必要时将事项再次提交法院，以作进一步及后续的口头陈述。\n\n296. 尽管这可能并不可取，因此我将采纳我所称的“折衷办法”，即仅在命令中纳入民事上诉法院院长的表述，并对在此背景下属假设性的问题不作裁决：使用享有特权的文件是否构成放弃特权，而根据我的判决书条款，这种放弃并不被允许。\n\n297. 第二项尚未解决的事项为诉讼费用。Toube 女士承认，既然破产受托人作为申请人提出本申请但未获成功，则应承担个别被申请人 Lemos 先生及夫人的诉讼费用。我未获请求对该等费用作简易评定，但获请求作出一项诉讼费用预付款命令。\n\n298. 《民事诉讼规则》（CPR）44.2(8)规定：\n\n“法院命令一方当事人支付须经详细评定的费用时，除非有充分理由不作此命令，法院将命令该方当事人支付一笔合理的费用预付款。”\n\n299. 困难在于，我据以确定和量化该等费用合理预付款的材料有限。\n\n300. 就第二被申请人而言，Shekerdemian（谢克德米安）女士已提交截至上周五的费用摘要。该摘要不包括今日的费用。第二被申请人的律师并未以任何方式对其予以证明或担保。总额略高于 £96,000，不含 VAT。Shekerdemian 女士请求我命令支付该金额一半的预付款，连同 VAT 约为 £57,500 左右。\n\n301. Lord 先生的处境更为不利，因为他根本没有费用摘要；不过，根据法官席的询问，他已告知我，他本人及其初级大律师就本次听证的费用合计为 £45,000。\n\n302. Toube 女士未提交申请人的费用陈述。她称，申请人认为没有必要这样做，因为第一被申请人尚有约 £7,590-odd 的未清偿费用责任应向申请人支付。\n\n303. CPR 44.2(8)要求我命令付款方支付一笔合理的费用预付款，除非有充分理由不作此命令；我认为本案不存在不作此命令的充分理由。我必须根据摆在我面前的有限材料尽力作出判断。我不应命令支付一笔超过我认为在详细评定中绝对最低可获追偿数额的费用预付款。\n\n304. 考虑到第二被申请人的费用水平、她聘请了布里斯托尔的律师而第一被申请人使用 Gray's Inn（格雷律师学院）的律师、第二被申请人仅聘请了主办大律师而第一被申请人同时聘请主办大律师及初级大律师（申请人亦然），以及第一被申请人与第二被申请人不同，已对有关文件作出一定分析，故第一被申请人产生的费用很可能超过第二被申请人的费用；在此情况下，我认为可以将 Shekerdemian 女士的费用摘要作为第一被申请人可能主张的最低金额的可靠指示。\n\n305. 考虑到所有该等因素，我认为，每名被申请人的合理费用预付款应为 £40,000 加 VAT，即每案合计 £50,000。抱歉，我认为该数额略低于 £50,000：我认为总额可能为 £48,000。但无论如何，应为 £40,000 加 VAT。\n\n306. 就第一被申请人而言，须规定以其对申请人负有的未清偿费用责任进行抵销，并仅支付余额。\n\n307. 我接下来必须决定的问题是是否应准许上诉。根据 CPR 52.6(1)，仅在法院认为上诉具有真实的成功前景，或有其他令人信服的理由应当审理该上诉时，方可准许上诉。\n\n308. 我认为，Toube 女士已提出约九项应准许上诉的理由。如下：\n\n(1) 就我认定 Arnold（阿诺德）法官在 Avonwick 一审中实际上并未裁定 Crescent Farm（新月农场案）的判决适用于破产，而只是完全基于律师就此作出的让步而继续审理而言，我的判决书有误。\n\n(2) 我错误地认定，Crescent Farm 原则仅限于主张继受人请求特权的权利，且并未裁定产权继受人是有权放弃特权的人。据称，这也是 Arnold 法官所作的裁定。\n\n(3) 我错误地认定，Crescent Farm 原则不适用于由破产受托人持有的资产。我在判决书中所作的资产向产权继受人自愿及非自愿转移之间的区分，在法律上错误。\n\n(4) 据称，我错误地认定上诉法院在该方面推翻了 Arnold 法官的判决，因为上诉法院面前的问题仅涉及特权本身是否构成“财产”，以及 1986年《破产法》第311(1)条应如何正确解释的问题。\n\n就此而言，我的结论是，虽然 Arnold 法官对 A 类文件的判决未被上诉法院推翻，但其判决建立在申请人律师就一项与申请及上诉的真正争点无关事项所作的让步之上，而该判决的该方面既与上诉法院的评述不一致，也与其推理不一致；依照上诉法院的判决，该方面不应再被遵循。\n\n(5) 据称，我错误地认定 Peter Gibson（彼得·吉布森）法官就 Re Konigsberg（康尼格斯伯格案）第二方面所作的判决已被推翻。\n\n(6) 据称，我错误地认定，根据 1986年《破产法》第423条提出的请求并非构成破产人财产的一项资产。我本应认定，该等请求是破产人财产中的一项资产，因而相当于 Avonwick 案中的 A 类文件。\n\n(7) 据称，我就 1986年《破产法》第363条作出的结论有误。我必须考虑特权是否已因必然默示而被取代，但我未作此考虑，且我就管辖权问题作出的裁定有误。\n\n如果我的即席判决尚未明确说明这一点，我现在说明，我认为该项特权并未因《Insolvency Act》第363条而被默示推翻。\n\n（8）有人称，我决定驳回该申请的其余部分时犯了错误。我本不应认为破产受托人实际上是在寻求第二次机会；相反，他们是在寻求对原有机会作进一步争取。就此而言，我认为这是一项案件管理决定，完全处于我酌处权的宽泛范围之内。\n\n（9）最后，有人称，即使该上诉没有真正的成功前景，仍有其他令人信服的理由应当审理该上诉。该事项对于Arnold法官（Arnold）及Court of Appeal（上诉法院）判决的含义和效力具有根本性的重要意义。该事项涉及对破产程序中的破产从业人员具有根本性重要意义的问题，并且是破产受托人在收集破产财产资产时所承担职责的核心。这一点由Leeds先生（Leeds）为支持该申请而提交的第九份证人陈述第63段所提出的观点加以说明。\n\n309. 概言之，有人称，我关于Court of Appeal在Avonwick一案中的裁决所作的结论有误，因为Court of Appeal在裁决该上诉所涉及的两个不同争议事项时，并未审议这一问题。基于所有这些理由，我应当根据CPR 52.6(1)的两项条件准许上诉。\n\n310. Lord先生（Lord）主张，除与根据《Insolvency Act》第423条提出的请求有关的文件是否属于资产文件、即相当于Avonwick案中A类文件的问题外，其余所有事项均已由Court of Appeal在该案中的裁决所涵盖。由于本院仅涉及原则性问题，在没有以具体指明的特定文件为基础的即时事实依据以提出上诉的情况下，本院应当谨慎，不应准许向Court of Appeal上诉。\n\n311. Lord先生主张，相关原则明确，并且最近已由Court of Appeal在Avonwick案中明确确立。他主张，很难设想有比本案更不适宜由一审法院准许上诉的案件。\n\n312. 此外，申请人还面临进一步障碍，即须考量相关文件如何与破产人财产中的一项资产相关联。他主张，本申请中提出的所有事项均已在Avonwick案中向Court of Appeal提出，并受其判决理由所规制。\n\n313. 第二被申请人的代理人Shekerdemian女士（Shekerdemian）采纳了Lord先生的所有主张，并主张不存在应由Court of Appeal适当审议的重要问题，且任何上诉均无真正的成功前景。\n\n314. Toube女士（Toube）在其简短答复中主张，被申请人自身已改变了其关于适用法律的立场。据称，这对于破产从业人员而言是一项极其重要的裁决；有必要了解法律现状，而我显然错误适用了法律。\n\n315. 虽然我已听取三位向我陈述意见的资深大律师所作的详尽且表达出色的论证，但归根结底，我对我的决定毫无疑问。基于我在即席判决中已经阐述的理由——篇幅或许过长——我认为该上诉不存在任何真正的成功前景。\n\n316. 虽然我所作决定的某些方面或许可以就其正确性提出争论，但在必须审议本决定的语境中，即为根据《Insolvency Act》第423条提出申请而可能使用享有特权的文件的语境中，我看不出Court of Appeal有任何真正可能得出不同结论，即使我判决中的个别方面可能被认定为错误（尽管我也不认为存在这种真正可能）。\n\n317. 因此，我不确信该上诉在任何实质意义上，或在任何会影响该等文件在据称拟被使用的语境中之使用的意义上，具有真正的成功前景。我也不认为存在任何其他令人信服的理由应审理该上诉。正如Lord先生所主张，Court of Appeal最近已在Avonwick案中审议了所有这些问题。\n\n318. 如果Court of Appeal在审议针对本决定提出的上诉许可申请时认为，Master of the Rolls（卷宗主事官）的判决未提供充分澄清，并认为除我已尝试提供的澄清之外，进一步澄清属适当且必要，则我认为应由Court of Appeal准许上诉。\n\n319. 本申请由我以Chancery Division（衡平法庭）法官身份审理，因此任何上诉均应向Court of Appeal提出。除非申请延长期限——据我了解，将会提出该申请——上诉期限为自今日起21天。\n\n320. 因此，基于上述理由，驳回上诉许可。\n\nBAILII：版权政策　免责声明　隐私政策　反馈　向BAILII捐赠　网址：htt","key_entities":["Je","CIPA","Horton"],"ecf_references":[],"word_count":28641,"status":"published","published_at":null,"created_at":null,"updated_at":"2026-08-23 22:18:39"}