Xaidsart partners Paul Le Vay and Carlo Di Carlo were successful in resisting an application brought by a former employee seeking an order that documents (including emails) that she took from her employer at termination were not protected by solicitor-client privilege. The Court rejected this application and upheld the privilege. There are two key principles to take from the decision:
- The normal rule that a trustee cannot claim privilege as against its beneficiaries does not per se apply to corporate/investment trusts. The Court approached the issue realistically and observed that the corporate trustee came into possession of the privileged information as an operator of the investment trust and not as a trustee.
- It is not necessary to file evidence to prove that the information at issue is in fact privileged. All that is required is reasonable evidence from which the court can infer a solicitor-client privilege relationship.
