{"id":672420,"date":"2026-04-24T13:10:49","date_gmt":"2026-04-24T11:10:49","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/michael-wilson-and-partners-limited-v-john-forster-emmott-and-others\/"},"modified":"2026-04-24T13:10:49","modified_gmt":"2026-04-24T11:10:49","slug":"michael-wilson-and-partners-limited-v-john-forster-emmott-and-others","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/michael-wilson-and-partners-limited-v-john-forster-emmott-and-others\/","title":{"rendered":"MICHAEL WILSON AND PARTNERS LIMITED v JOHN FORSTER EMMOTT AND OTHERS"},"content":{"rendered":"<div class=\"kji-decision\">\n<div class=\"kji-full-text\">\n<p>JUDGE PELLING: 1. This is an application by the claimant Michael\u00a0Wilson and Partners, hereafter \u201cMWP,\u201d for an order under paragraph\u00a021 of Practice Direction 51U, requiring two of the defendants to the proceedings I am currently concerned with, to produce documents which, it is alleged, are mentioned in witness statements filed by those defendants in relation to an application by the defendants for an order striking out these proceedings. 2. The background to the application can briefly be stated. Indeed, I attempted to summarise it earlier this morning in a judgment I gave concerning an application for permission to serve these proceedings out of the jurisdiction. The rather lengthier summary of the dispute contained in that judgment should be treated as incorporated by reference into this. 3. In summary, in these proceedings, MWP seeks to allege, as against the first six named defendants, in effect, that they dishonestly conspired together to make claims for costs orders in other proceedings between the claimant and the first defendant, amongst others, for costs orders, knowing that the second to sixth defendants were not entitled to payment in respect of the legal services they had provided to the first defendant, and therefore no entitlement to an indemnity arose, and therefore no entitlement to costs orders arose either. 4. The claimant seeks to recover, in these proceedings, all sums advanced by way of interim payments on account in respect of the costs orders concerned, and seeks a declaration that none of them were entitled to recover any costs, either by reference to the orders which are under challenge, or otherwise. 5. There is an additional claim against the seventh defendant which appears to be based, in summary, on an allegation that in its capacity as the assignee of the rights of Mr\u00a0Sinclair as against the seventh defendant, MWP, in right of Mr\u00a0Sinclair, is entitled to recover sums from the seventh defendant which were advanced to the seventh defendant by Mr Sinclair for onward payment to one or more of the first to sixth defendants, in respect of the costs of the first defendant\u2019s legal representation. 6. In respect of these proceedings, the second to sixth defendants have issued applications seeking to strike out the claims in their entirety, and for orders dismissing the proceedings. In that context, witness statements have been filed, in particular by the late Mr\u00a0Michael\u00a0Robinson, a solicitor, at one time retained by the first defendant, and by Mr\u00a0Philip Shepherd\u00a0QC, one of the named defendants, who acted as leading counsel to the first defendant for significant periods relevant to this dispute. There is no need for me to summarise further the nature of the disputes, or the underlying disputes, between the first defendant and the claimant. They are the subject of numerous earlier judgments from me, and to the extent it is necessary for any party reading this judgment to understand the deeper background, then reference should be made to those judgments. 7. As I have said, this is an application under paragraph\u00a021 of Practice Direction 51U. Paragraph\u00a021 contains a self-contained code by reference to which a party in receipt of a statement of case, witness statement, or affidavit is able to seek the disclosure of documents mentioned in such documents. 8. Paragraph\u00a021 provides as follows: \u201c1. A party may at any time request a copy of a document, which has not already been provided by way of disclosure but is mentioned in: (39) a statement of case; (ii) a witness statement; (iii) a witness summary; (iv) an affidavit; (v) an expert\u2019s report. 2. Copies of documents mentioned in the statement of case, in witness evidence, or in an expert\u2019s report, requested in writing, should be provided by agreement, unless the request is unreasonable or a right to withhold production is claimed. 3. A document is mentioned where it is referred to, cited in whole, or in part, or there is a direct allusion to it. 4. Subject to Rule 35.10(4), the court may make an order requiring the document to be produced, if it is satisfied that such an order is reasonable and proportionate as defined in paragraph\u00a06.4.\u201d 9. The points which are apparent from this framework rule, are, first of all, there are two requirements that must be satisfied before disclosure can be obtained under this paragraph. First, it must be established that the document or categories of document in respect of which disclosure is sought are mentioned, as defined in paragraph\u00a021.3. Secondly, assuming that is established, the party seeking disclosure must also satisfy a court that the order sought is reasonable and proportionate, as defined in paragraph\u00a06.4. 10. Paragraph\u00a06.4 defines what is meant by reasonable and proportionate in the context that phrase is used in Practice Direction 51U, as something to be assessed by reference to the overriding objective, which I do not need to set out in this judgment, and also the following factors identified within paragraph\u00a06.4 being: \u201c1. The nature and complexity of the issues in the proceedings; 2. The importance of the case, including any non-monetary relief sought; 3. The likelihood of documents existing that will have probative value in supporting or undermining a party\u2019s claim or defence; 4. The number of documents involved; 5. The ease and expense of searching for and retrieval of any particular document, taking into account any limitations on the information available and on the likely accuracy of any costs estimate; 6. The financial position of each party; 7. The need to ensure that a case was dealt with expeditiously, fairly and at proportionate cost.\u201d 11. In relation to those factors, in the circumstances of this case, it is necessary to assess reasonableness and proportionality in the relevant procedural context. Very often such an assessment will have to be carried out by reference to documents sought in the course of extended disclosure under the practice direction, which will be deployed, or may be deployed, at trial. That is not this case. This case is concerned with an interlocutory application by the second to sixth defendants to strike out the claims made by the claimant against them. Therefore, and in those circumstances, the approach, in particular to reasonableness and proportionality, may be a rather more focused and acute one than would otherwise be appropriate. 12. Looking at the factors which are set out in paragraph\u00a06.4, the ones which stand out as likely to be of primary importance include that at subparagraph (3) which focuses attention on the probative value of the documents which are likely to be obtained, which in turn focuses attention on the issues which arise on the application; subparagraph (4), the number of documents involved, which focuses attention on the way in this which this application has been formulated, whilst acknowledging that the application as advanced orally has been advanced on a significantly more constrained scale than it was issued; and finally, the requirement to deal with a case expeditiously fairly and at proportionate cost, it is relevant to note that the application to strike out these proceedings has been listed over a period of, I think, two days in May of this year. 13. Against that background, and before turning to the witness statements which are relied on for the purposes of this exercise, I should note the scope of the disclosure which has been sought. The approach, both orally and in the application, starts with the creation of a schedule of documents expressed in extravagant terms, and seeks disclosure of those documents which it is submitted are bound to exist, and in reality have been appropriately alluded to in the witness statements concerned. In my judgment, that is a fundamentally wrong approach for an application of this sort. This application, being an application under paragraph\u00a021 of Practice Direction 51U, must start with the witness statement, statement of case, witness summary, affidavit, or expert\u2019s report, which is said to contain mention of documents that have not otherwise been disclosed. Then, to identify the documents, or categories of documents mentioned before then proceeding, in relation to those documents, to consider whether disclosure is reasonable and proportionate, applying the principles I mentioned earlier. 14. There are three other points which I should mention at this stage. The first concerns what constitutes \u201cmention\u201d of relevant documents. This has been addressed in numerous authorities decided by reference to CPR\u00a031.14. Before turning to what has been said, it is necessary to note at the outset, that disclosure in the courts of England and Wales proceeds on two alternative bases. Either CPR\u00a0Part\u00a031 applies, or it does not. CPR\u00a031 applies broadly to all civil proceedings to which the Civil Procedure Rules apply, unless Practice Direction\u00a051U applies. Where Practice Direction\u00a051U applies, then, save for the provisions of CPR\u00a0Part\u00a031 identified in section\u00a02 of the Practice Direction, Part\u00a031 does not apply to any proceedings falling within the pilot. The proceedings which fall within the pilot are, broadly, those proceedings which are taking place in the Business and Property Courts either of England and Wales, or in the various regional centres located around England and Wales, other than those identified in paragraph\u00a01.4 of the practice direction. 15. Therefore, and in those circumstances, paragraph\u00a021 constitutes a self-contained code, and therefore some care needs to be exercised in referring to authorities decided under CPR\u00a0Part\u00a031. Nonetheless, the one authority that I do propose to refer to is one which turns upon the meaning of the word \u201cmentioned.\u201d The meaning of the word \u201cmentioned\u201d is defined in paragraph\u00a021 of Practice Direction 51U. It replicates what the case l\u201dw decides in relation to the meaning of that word in CPR\u00a0Part\u00a031. Therefore, regard can safely be had to the general principles identified by reference to that phrase. 16. The relevant authority that I need to refer to is the decision of Warby\u00a0J in Rudd v Bridle &amp; Anor [2019] Costs LR 1067 (\u201cRudd\u201d) where at paragraph 41 on page 1081 he said this: \u201cThe exercise of the power to order inspection under these rules and the meaning of, \u201cmentioned\u201d in this context have been considered in a number of authorities, among them Rubin and Expandable Limited [2008] EWCA Civ\u00a059, [2008]\u00a01WLR\u00a01099 (\u201cRubin\u201d)relied on by both parties to this application. Rix\u00a0LJ, with whom Jacob\u00a0LJ and Forbes\u00a0J agreed, distinguished the case in which a document is, \u201cmentioned\u201d from one where the wording of the sta\u201dement merely allowed an inference that a document existed. He held at paragraph\u00a022\u00a0to\u00a025 that \u201cmention\u201d must mean, \u201cspecifically mention\u201d and approved a test of, \u201cdirect allusion.\u201d He gave examples of forms of expression in which \u201cthe making of the document itself is the direct subject matter of the reference and amounts to the document being, \u201cmentioned.\u201d\u201d He was referring here to statements su\u201dh as, &quot;he wrote,\u201d or, \u201cI recorded and transcribed our telephone call.\u201d Statements such as these were contrasted with assertions such as, \u201che conveyed,\u201d or, \u201che guaranteed,\u201d which Rix\u00a0LJ characterised as references to transactions, from which it might be inferred that a document had come into existence.\u201d 17. As I have said, paragraph\u00a021 of the practice direction at paragraph\u00a021.3 adopts the case law approach identified in Rubin, and therefore what is summarised by Warby\u00a0J, assists in arriving at a conclusion as to whether or not a document has been sufficiently mentioned for the purposes of paragraph\u00a021 of the practice direction. 18. There are two other points arise which I should mention, albeit briefly. The first concerns the question of whether or not a document attached to another document, which refers to yet other documents, is a sufficient mention of the documents mentioned in the attached documents, to support an application of this sort. This proposition is not supported by any of the texts contained within Practice\u00a0Direction\u00a051U, but appears to be supported by a note, relatively obscurely expressed, to CPR\u00a0Rule\u00a031.14 in the current edition of the White Book. Paragraph\u00a031.14 provides that a party may inspect a document mentioned in an affidavit. That specific provision is considered in the note at paragraph\u00a031.14.4 in these terms: \u201cThis includes an affidavit sworn or served on an opposing party though not filed in court \u2026\u201d That is of no application in the circumstances of this case and I need say no more about it. The note continues: \u201c\u2026\u00a0an exhibit to an affidavit (cf Re Hinchcliffe [1895] 1 Ch 117 at 120 CA)\u00a0\u2026\u201d It is that phrase which is relied upon by MWP to justify the proposition that where a witness statement refers to or attaches another document, and the other document contains a reference to yet further documents, the consequence is that the recipient of the witness statement concerned is entitled to call, not merely for documents mentioned in the body of the witness statement, but for any document that happens to be mentioned in any document attached to, or otherwise mentioned in the witness statement, subject only to the reasonableness and proportionality requirement identified in paragraph\u00a021.4 of the practice direction. 19. In my judgment that is not a construction which I consider to be either reasonable or appropriate to adopt. This rule is concerned with identifying documents which can fairly be said to be relied upon by the party whose statement of case, witness statement, witness summary, or affidavit is under consideration, as being part of his, her or its evidence in either support of or opposition to whatever application is material. Even allowing for the constraints imposed by the requirements of reasonableness and proportionality, the notion that it is, in principle, open to a party to seek the disclosure of any document that happens to be mentioned anywhere in the body of a document itself mentioned in a witness statement, or attached to it, opens up the prospect of a wide-ranging search for documents which may trigger, in particular cases, a search for many thousands of documents, which will needlessly increase cost, increase delay, and trigger all of the problems that the overriding objective is designed to address and avoid. 20. In my judgment, on that basis alone, the construction for which the claimant contends, is extravagant and is to be rejected. In my judgment, what is appropriate in the circumstances, is to treat the requirement identified in CPR\u00a0Rule\u00a031.14 and, by extension, paragraph\u00a021 of the practice direction, as being a requirement where an application is made by a party to inspect a document mentioned in an affidavit, to inspect any document which has been exhibited to the affidavit. Any other construction, as I say, would go further than what is reasonable and proportionate. 21. The only other point I should make concerns privilege. The issue concerning privilege arises specifically in relation to some retainer letters and\/or counsel\u2019s conditional fee agreements. It was submitted on behalf of MWP, and I agree, that it is wrong to characterise retainer letters or conditional fee agreements as privileged by virtue of their very nature. That goes much further than the authorities justify, and in my judgment the principles are correctly identified by way of recent example in the First Tier Tax Chamber judgment in B Haig against HM Revenue and Customs where FtT\u00a0Judge\u00a0Barbara\u00a0Mosedale summarised the principles at paragraph\u00a019 and following. In relation specifically to the question of whether engagement letters and the like are privileged, then the judge said this at paragraph\u00a022 and following: \u201cHMRC submit that engagement letters between a solicitor and his client are not privileged at least if they merely set out the terms on which the solicitor will act. This is consistent with authority. Rimer\u00a0J in Dickinson v Rushmer [2002] 1 Cost LR 28 said, \u201cNot all such documents, ie client engagement letters, will necessarily and automatically be privileged. It is possible that in any particular case the client care letter will reflect or contain advice or other material which would serve to clothe it with privilege. It is not, however, suggested that the letter produced to the judge was privileged on that basis. In principle, I cannot see why a letter merely setting out the terms of which the solicitor is to act for the client should be privileged.\u201d\u201d 22. As the first tier judge observed at paragraph\u00a025, and I respectfully agree, everything depends upon what the actual letter says. Where an engagement letter specifies the particular matter or matters on which the solicitor is contracted to provide legal advice, then privilege will attach, at any rate to that section of the engagement letter, where that material is to be found \u2013 see paragraph\u00a026 of the judgment. As she added at that end of that paragraph: \u201cLPP must extend not only to the content of the legal advice but that a fact that a person sought legal advice on any particular matter. Therefore, to the extent that an engagement letter sets out what the advice will cover, it will be subject to LPP.\u201d 23. With that summary of framework principles complete, I am now able to turn to the applications that are made. 24. I turn first in relation to the witness statement of Mr\u00a0Michael\u00a0Robinson, deceased. I should explain that when these proceedings were commenced by MWP, Mr\u00a0Michael Robinson, deceased, was the second defendant, he being the solicitor who acted for the first defendant for large periods of time in relation to the first defendant\u2019s dispute with MWP. At the end of last year, Mr\u00a0Robinson died, suddenly, and is now represented in these proceedings by his son and executor, Mr\u00a0Mark Robinson. Prior to his death, Mr\u00a0Robinson prepared and served a witness statement in support of his application that the claim against him be struck out. In relation to that witness statement, MWP, in the schedule of documents attached to the application notice by which this application is made, sought by reference to this witness statement, no less than\u00a0nine separate sub-categories of documents, some of which are expressed in the most general terms. 25. In order that I can identify precisely how general this approach has been, it is necessary that I set out in full what is sought in relation to Mr\u00a0Robinson\u2019s first statement. The schedule provides, in relation to the first witness statement of Mr\u00a0Robinson, that the documents sought are as follows: \u201c1.1 All engagement letters, retainers, invoices, bills, fee notes, statements of account and client account statements, as to the engagement and involvement of the second, third and fourth defendants, including in particular in about July\u00a02006, paragraphs\u00a09 and\u00a013, the end of\u00a02006 and early\u00a02007, paragraph\u00a027, 2008, paragraph\u00a028, October\u00a02012 to late\u00a02020, paragraphs\u00a09, 2 and\u00a029, the signed letter of 15\u00a0October\u00a02021. 1.2 All and any consultancy agreements, letters, retainers, invoices, bills and fee notes between the first and second defendants on the one hand and the third and fourth defendants and\/or KSL on the other hand and as to all and any payments made. 1.3 The loan agreement, funding deed, and all or any addenda thereto including those as referred to in paragraphs\u00a022 and 23 and as to all and any advances and repayments made. 1.4 Signed copies of all invoices referred to in paragraph\u00a025 and exhibited at pages\u00a011\u00a0to\u00a027 and the documents proving the same wherever actually signed, issued, and sent to the first defendant and as to all and any payments made. 1.5 All pleadings, evidence and orders in the QBD proceedings referred to in paragraph\u00a028 other than the Tomlin Order. 1.6 All statements of costs, costs schedules referred to in paragraph\u00a037 on page\u00a011 and\u00a012. 1.7 The standard retainers referred to in paragraph\u00a033 on page\u00a013. 1.8 The invoices listed on page\u00a01 of exhibit MR1. 1.9 The counsel fee notes referred to in the invoices at pages\u00a012, 14, 16, 18, 22, 24, and\u00a027 or MR1.\u201d 26. Commendably, in the circumstances, Mr\u00a0Dalby, who appears on behalf of MWP, advanced the application in respect of Mr\u00a0Robinson\u2019s statement on a significantly more confined basis. The way in which he put his application was to start with paragraphs\u00a043 and\u00a045, in order to identify what he submits are \u201cmentions\u201d of relevant categories of document, and then to seek to fix the documents in time by reference to earlier paragraphs within the witness statement. Of the particular phrases relied upon in paragraph\u00a043, was: \u201cThe retainers with Mr\u00a0Emmott were standard retainers with the responsibility of Mr\u00a0Emmott being unconditional. There is simply no basis on which MWP can state that Mr\u00a0Emmott had no liability to his lawyers.\u201d And in paragraph\u00a045 a statement that: \u201cMr Emmott\u2019s agreements with his lawyers did not include any conditionality.\u201d The earlier paragraphs on which reliance was placed were paragraphs\u00a013, 27 and\u00a028. In so far as is material, paragraph\u00a013 states as follows: \u201cTowards the end of July\u00a02006 my law firm\u00a0\u2026\u00a0was retained by Mr\u00a0Emmott to act for him in connection with a dispute which had arisen between him and MWP.\u201d Paragraph\u00a027 contains a statement to the following effect: \u201cKerman and Co LLP acted for Mr\u00a0Emmott for about six weeks towards the end of 2006 and early 2007.\u201d Paragraph\u00a028 contains the statement that: \u201cKerman and Co LLP also acted for Mr\u00a0Emmott for a few months before the start of the liability hearing on 14\u00a0November\u00a02008.\u201d The reference to the liability hearing is to the hearing of the liability hearing in the arbitration, which is the foundation from which the various claims by and between Mr\u00a0Emmott and MWP originated. 27. I have already identified the principles which apply in deciding whether or not there has been a sufficient mention of a particular document in order to trigger the obligation that arises under paragraph\u00a021 of Practice Direction 51U. They are summarised in the judgment of Warby\u00a0J, I quoted earlier. Paragraph\u00a013 does not contain any relevant mention of anything, essentially for the reasons identified by Warby\u00a0J, in his judgment. As he put it, in relation to the short-term loan referred to at paragraph\u00a044.1 of his judgment in Rudd: \u201cA loan is a transaction which may or may not be contained in or evidenced by a document. This is a reference to a transaction akin to a guarantee.\u201d As he also said in paragraph\u00a044.2, in relation to a reference to a, \u201ccontract of sale for land,\u201d and the submission that it was almost inconceivable that a contract for the sale of land being negotiated by professional solicitors would not be in writing: \u201cThis is another case where there is no direct allusion to a document.\u201d And in relation to a reference to communication when the buyer\u2019s solicitor informed the first defendant and his solicitors that the sale would not be completed, he said: \u201cIt is submitted that paragraph\u00a013I makes a direct allusion to correspondence with the putative buyer\u2019s solicitor. It does not. The existence of correspondence might be inferred on the footing that the solicitors usually communicate on such matters in writing rather than face to face or by \u2018phone, but there is no direct allusion.\u201d 28. Returning to paragraph\u00a013 of Mr\u00a0Robinson\u2019s statement, it is manifest that referring to a retainer does not satisfy the requirements of mention of a written contract of retainer, for the same reasons identified by Warby\u00a0J in the authority I referred to a moment ago. In particular, in relation to a suggestion I put to Mr\u00a0Kirby QC, appearing for Mr\u00a0Robinson, that it was to be inferred that a retainer letter must exist because solicitors are not permitted to act for clients unless a letter of retainer has been provided, he submitted, in my judgment, correctly, that whilst it might be inferred that there exists a written letter of retainer, that is not in any way the same thing as saying that in paragraph\u00a013 there has been a sufficient direct allusion to such a document. I agree with and accept that submission. 29. Similar considerations apply, and indeed it is almost a fortiori the case, in relation to the statements which appear in paragraph\u00a027\u00a0and\u00a028 of Mr\u00a0Robinson\u2019s statement. Each of the relevant parts of those paragraphs refers to a period when Kerman and Co LLP were retained. There is no direct allusion to the existence of written contracts of retainer. 30. Against that background, therefore, I return to the principal paragraphs which were relied upon by Mr\u00a0Dalby in relation to Mr\u00a0Wilson. He says, in relation to paragraph\u00a014, that the reference to retainers with Mr\u00a0Emmott is a sufficient mention to justify making the order sought. I am far from satisfied that it can be said legitimately that this is either an express reference to a letter of retainer or a direct allusion to such a letter. This is classically material which comes within, or is closely akin to, what Warby\u00a0J described in paragraph\u00a041 as assertions that, \u201che conveyed,\u201d or, \u201che guaranteed,\u201d as opposed to being a specific mention as, for example, \u201che wrote,\u201d or, \u201cI recorded and transcribed.\u201d In those circumstances, as it seems to me, there is no relevant mention of letters of retainer. There is a point that is made, however, in relation to letters of retainer that have been produced. That is that letters of retainer have been produced by Mr\u00a0Robinson but are unsigned. In relation to that, it is unclear to me whether it is said that these documents are the only versions of the documents that are available but if, and to the extent that it is complained that these are documents that are not signed by Mr\u00a0Emmott, I am unpersuaded that requiring the production of documents signed by Mr\u00a0Emmott will be either reasonable or proportionate. But before reaching a final conclusion I will just ask for brief submissions as to whether or not it is said these documents exist, or whether they have been lost. But subject to that, I consider that there is no proper order that can be required in relation to Mr\u00a0Robinson\u2019s statement. 31. I now turn to the statement of Mr Philip\u00a0Shepherd QC. The documents which are sought in relation to that, as set out in the schedule to the application, are the following: \u201c1. All engagement letters, retainers, invoices, bills, fee notes, receipted fee notes, statements of account, client account statements as to the engagement and involvement of the fifth defendant including in particular, in or about late 2006, paragraphs\u00a014 and 43, the two conditional agreements in 2012, paragraphs 17 and 41 and PAS1.1, and 2017 paragraphs\u00a018 and 41. 2. The various funding deeds and their addenda. 3. The various creditors and bankruptcy petitions as signed, dated and sealed by the court and all documents as to the withdrawal of the same and the payment made. 4. The compromise agreement and the related documents, paragraph 38 and as to the payment of fees. 5. The contracts of 13\u00a0October\u00a02008, 5\u00a0December\u00a02008, 7\u00a0January\u00a02009 and the statutory demand of 14\u00a0April\u00a02019.\u201d 32. So far as that is concerned, the submissions which were made were made primarily by reference to specific paragraphs within Mr\u00a0Shepherd\u2019s witness statement, and then by reference to some of the exhibits to which I turn in a moment. 33. The first paragraph to which reference was made, was paragraph\u00a015 which contains as its first sentence: \u201cMy instruction as counsel on behalf of Mr\u00a0Emmott was entirely conventional.\u201d That is not, in any sense, a mention of a written retainer, or a direct allusion to such, applying the learning as to what mention means in this context as summarised by Warby\u00a0J. It is submitted, therefore, that in those circumstances no disclosure order should be made. I accept that submission. 34. Paragraph\u00a016 refers to \u201cTwo conditional fee agreements.\u201d As to which Mr\u00a0Shepherd said: \u201cWhilst the existence of the CFAs is not confidential, I do not consider myself free to exhibit the CFAs or refer to their specific contents absent the agreement of Mr\u00a0Emmott. They arguably contain privileged material and their detailed contents are, in any event, confidential. Without waiving any privilege or confidentiality, which is not mine to waive, I can, however, confirm\u00a0\u2026\u201d The position since that witness statement was filed and served, is that Mr\u00a0Emmott has waived any right to assert privilege or any reliance on any confidentiality other than to the extent that parts of the CFAs have been redacted. The CFAs are in evidence. The redactions occur at paragraphs\u00a09 and\u00a010. Paragraph\u00a09 says: \u201cThe uplift which is to apply to counsel\u2019s base rate is, \u201cblank.\u201d\u201d Paragraph\u00a010 states: \u201cThe reason for setting the uplift at that rate is, \u201cblank.\u201d\u201d It is asserted in relation to that that the material is privileged and, in any event, is not Mr\u00a0Shepherd\u2019s privilege to waive, and\/or is irrelevant. It is in this context that I have to have regard to the nature of the application that I am concerned with, which is to strike out a claim which asserts that there has been a fraudulent claim to recover fees for which there is no indemnity obligation. In my judgment, the amount of an uplift from a base fee which is identified in earlier paragraphs of the CFA is not, in any sense, material to the issues that arise and thus, it would not be reasonable and proportionate to require the disclosure of the CFA with paragraph 9 unredacted, particularly having regard to the fact that reasonableness and proportionality must be judged by the factors identified in paragraph\u00a06.4 of the practice direction, subparagraph (3) of which focuses particular attention on the probative value supporting or undermining a party\u2019s claim or defence. 35. So far as paragraph\u00a010 is concerned, it is entirely foreseeable that one of the reasons given for a particularly significant uplift is likely to be the risk of losing, and therefore, to that extent, paragraph\u00a010 is likely to contain material which is relevant to an assessment of the prospects of success. That is material which is likely to be privileged, but I take the point, which is made by MWP, which is at the moment there is, as far as one can see, a document simply with redacting, without any underlying material, which seeks to justify why that redaction has been made. I agree, therefore, that it may be appropriate that there should be a brief witness statement filed, possibly by Mr\u00a0Emmott, which simply explains why privilege is being asserted, but if such a witness statement is to be filed, it has to be understood that it would have to be expressed in terms which do not themselves reveal what is, by its nature, privileged. 36. Returning to Mr\u00a0Shepherd\u2019s witness statement, the next paragraph to which reference was made, was paragraph\u00a021where there appears this sentence: \u201cThis is reflected in the various funding deeds between Mr\u00a0Sinclair and Mr\u00a0Emmott.\u201d Although this is focused on as meaning that this should justify a requirement that Mr\u00a0Shepherd produce the, \u201cvarious funding deeds,\u201d there referred to, this submission depends upon the notion that it can be safely said that Mr\u00a0Shepherd has access to these documents. In relation to that it is necessary to consider the evidence which has been filed in relation to this application by the solicitors who act on behalf of Mr\u00a0Shepherd. At paragraph\u00a09.3 of that witness statement, the following appears: \u201cCopies of the funding deeds between Mr\u00a0Emmott and Mr\u00a0Sinclair have been requested. I understand that Mr\u00a0Shepherd in his statement was simply referring documents already exhibited to MWP\u2019s particulars of claim and the documents referred to therein. In any event the only funding deeds in Mr\u00a0Shepherd\u2019s possession beyond those exhibited by MWP to its particulars of claim are the unsigned version of the 21\u00a0May\u00a02007 funding deed and the addendum date of 13\u00a0March\u00a02008 which have already been deployed publicly in claim number CL2010804 brought by MWP and which will accordingly, already be in MWP\u2019s possession. I exhibit and refer to the judgment of Master Kay\u00a0QC dated 14\u00a0June\u00a02018, which makes this clear.\u201d In those circumstances, if what is stated in the solicitor\u2019s witness statement is correct, then it would plainly be wrong to make an order, but even if that is incorrect, it would be unreasonable and disproportionate to make an order since, by definition, Mr\u00a0Shepherd could not comply with it. Again, I take the point that what is said in paragraph\u00a09.3 of Mr\u00a0Shepherd\u2019s solicitor\u2019s statement does not expressly say it is made on instructions. But that is to introduce into all of this an air of unreality, because Mr\u00a0Shepherd\u00a0QC is a very experienced commercial Silk in private practice, and the notion that an experienced solicitor acting for someone such as Mr\u00a0Shepherd in proceedings of this nature would set out what is there set out, otherwise than on instructions, is fanciful. In those circumstances, as it seems to me at the moment, it would be inappropriate simply to require Mr\u00a0Shepherd to reproduce in a witness statement what is set out in paragraph\u00a09.3, though again I will hear brief submissions on that, to the extent it is necessary to do so. 37. Returning to Mr\u00a0Shepherd\u2019s witness statement, I now turn to paragraph\u00a022. Within paragraph\u00a022 there appears the following: \u201cIn 2009, I joined various members to 24 Old Buildings, in issuing a bankruptcy petition against the second defendant in respect of unpaid fees. I cannot locate a copy of the petition but I attach a copy of the draft petition sent to the second defendant.\u201d This results in an application for: \u201cThe petitions as signed, dated and sealed by the court and all documents as to the withdrawal of the same, and the payment made.\u201d So far as that is concerned, I do not see how it can be appropriate for me to direct Mr\u00a0Shepherd to produce documents which, on the face of his own witness statement, he says he cannot locate. As it seems to me, that statement, having been made in a witness statement containing a statement of truth, really has to be the end of what is there stated. It was submitted that these are documents which ought to be available on a court file, or ought to be available by requiring Mr\u00a0Shepherd to make appropriate enquiries of the various members of 24\u00a0Old Buildings, with whom he joined in presenting the petition. All of that strays from appropriate principle. If, and to the extent, it might be appropriate to make such an order in the context of an extended disclosure exercise, as to which I express no view, it is manifestly inappropriate in relation to an application under paragraph 21 of the practice direction, which is concerned with the production of copies of documents which have been mentioned. The only document that has been mentioned in any way that is appropriate, in the circumstances, is the draft petition, which is attached. It is, as it seems to me, wrong in principle, or alternatively, unreasonable and disproportionate, for me to require Mr\u00a0Shepherd to produce a document which he has already said, in a witness statement containing his statement of truth, that he does not have and therefore cannot produce. I should add that Mr\u00a0Shepherd\u2019s solicitor has said, in relation to this issue, at paragraph\u00a09.4 of his statement, the following: \u201cA copy of the bankruptcy petition issued by Mr\u00a0Shepherd and others against the second defendant has been requested. As explained in paragraph\u00a022 of Mr\u00a0Shepherd\u2019s witness statement, Mr\u00a0Shepherd cannot locate a copy of the issued bankruptcy petition, only the draft which has been exhibited to his witness statement. Mr\u00a0Shepherd should not be ordered to produce a document he does not have.\u201d I agree. 38. It is probably at this point that I ought to refer to a submission concerning the contents of the draft petition, which Mr\u00a0Shepherd produced. The draft bankruptcy petition contains at paragraph 3 the following: \u201cThe debtor is justly and truly indebted to me in the sum of \u00a3255,697.63 comprising a) \u00a3220,015.26 due to me under a contract on 13 October made on 13 October 2008; and b) \u00a334,364.00 due to me under a contract made on 5\u00a0December\u00a02008 as varied on 7 January 2009, being contracts for the provision of my services as self-employed leading counsel to him as sole solicitor in an arbitration, and seek contractual interest on the said debts totalling at the date of service of the statutory demand \u00a31,318.37. Under the terms of the said contracts, the former principal sum fell due on 31\u00a0January\u00a02009 and the latter principal sum on 27\u00a0February 2009\u00a0\u2026\u201d This leads MWP to submit that an order should be made requiring the production of the contracts for the provision of services by Mr\u00a0Shepherd, a self-employed leading counsel to Mr\u00a0Robinson. So far as that is concerned, a number of points arise. First, as I have already said, I do not consider that the mention of a document, if indeed a document has been mentioned, in an attachment to a witness statement, is a document which should be treated as having been mentioned in the witness statement for the purposes of paragraph\u00a021. To reach such a conclusion, as I have already explained, opens up the possibility that any document mentioned in any document exhibited to, or attached to, a witness statement would thereby become disclosable. That would be contrary to principle, because it could not be said of such a document that it was one being relied upon by the person whose witness statement is under consideration, as part and parcel of that person\u2019s evidence. Much more significantly however, paragraph 3 of the petition does not contain any reference to any document being in writing. In this context I return once again to what Warby\u00a0J said at paragraph\u00a041, and in particular paragraphs\u00a044.1 and 44.2 of his judgment in Rudd. To say that there has been a retainer, or a contract of retainer, between Mr\u00a0Shepherd and Mr\u00a0Robinson is not, in the circumstances, to say that there was such a written contract. In those circumstances, it seems to me to be inappropriate that I should direct the disclosure of such documents as may exist and are referred to in paragraph\u00a03 of the draft petition, on the basis that they have been mentioned for the purposes of paragraph\u00a021 of the practice direction. 39. Returning now to Mr\u00a0Shepherd\u2019s witness statement, I move on in the statement to paragraph\u00a038 which appears under the sub-heading \u201c2009 Fee Dispute\u201d between the first defendant and the fourth defendant. In paragraph\u00a038, Mr\u00a0Shepherd says this: \u201cI am aware that the proceedings were compromised and the fourth defendant continues to act for Mr\u00a0Emmott.\u201d This results in the request that the compromise agreement and all related documents be produced. The difficulty about that proposition is that ignores what Mr\u00a0Shepherd says in the very following sentence, which is: \u201cI have not seen that compromise agreement.\u201d Mr\u00a0Shepherd could not say that to be so if a copy was in his possession. In my judgment, to require Mr\u00a0Shepherd to produce a document which he has not seen and does not possess, would not be appropriate, having regard to the requirements of paragraph\u00a021, and in particular would not be reasonable or proportionate. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Unit 1 Blenheim Court, Beaufort Business Park, Bristol BS32 4NE Email: civil@epiqglobal.co.uk This transcript has been approved by the Judge<\/p>\n<\/div>\n<hr class=\"kji-sep\" \/>\n<p class=\"kji-source-links\"><strong>Sources officielles :<\/strong> <a class=\"kji-source-link\" href=\"https:\/\/caselaw.nationalarchives.gov.uk\/ewhc\/comm\/2022\/730\" target=\"_blank\" rel=\"noopener noreferrer\">consulter la page source<\/a><\/p>\n<p class=\"kji-license-note\"><em>Open Justice Licence (The National Archives).<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>JUDGE PELLING: 1. This is an application by the claimant Michael Wilson and Partners, hereafter \u201cMWP,\u201d for an order under paragraph 21 of Practice Direction 51U, requiring two of the defendants to the proceedings I am currently concerned with, to produce documents which, it is alleged, are mentioned in witness statements filed by those defendants in relation to an application&#8230;<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[7665],"kji_chamber":[],"kji_year":[32183],"kji_subject":[7625],"kji_keyword":[8442,9671,7975,11149,9062],"kji_language":[7611],"class_list":["post-672420","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-high-court-commercial-court","kji_year-32183","kji_subject-commercial","kji_keyword-document","kji_keyword-documents","kji_keyword-paragraph","kji_keyword-statement","kji_keyword-witness","kji_language-anglais"],"yoast_head":"<!-- This site is optimized with the Yoast SEO Premium plugin v27.5 (Yoast SEO v27.5) - https:\/\/yoast.com\/product\/yoast-seo-premium-wordpress\/ -->\n<title>MICHAEL WILSON AND PARTNERS LIMITED v JOHN FORSTER EMMOTT AND OTHERS - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/ru\/jurisprudences\/michael-wilson-and-partners-limited-v-john-forster-emmott-and-others\/\" \/>\n<meta property=\"og:locale\" content=\"ru_RU\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"MICHAEL WILSON AND PARTNERS LIMITED v JOHN FORSTER EMMOTT AND OTHERS\" \/>\n<meta property=\"og:description\" content=\"JUDGE PELLING: 1. This is an application by the claimant Michael Wilson and Partners, hereafter \u201cMWP,\u201d for an order under paragraph 21 of Practice Direction 51U, requiring two of the defendants to the proceedings I am currently concerned with, to produce documents which, it is alleged, are mentioned in witness statements filed by those defendants in relation to an application...\" \/>\n<meta property=\"og:url\" content=\"https:\/\/kohenavocats.com\/ru\/jurisprudences\/michael-wilson-and-partners-limited-v-john-forster-emmott-and-others\/\" \/>\n<meta property=\"og:site_name\" content=\"Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"\u041f\u0440\u0438\u043c\u0435\u0440\u043d\u043e\u0435 \u0432\u0440\u0435\u043c\u044f \u0434\u043b\u044f \u0447\u0442\u0435\u043d\u0438\u044f\" \/>\n\t<meta name=\"twitter:data1\" content=\"32 \u043c\u0438\u043d\u0443\u0442\u044b\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/ru\\\/jurisprudences\\\/michael-wilson-and-partners-limited-v-john-forster-emmott-and-others\\\/\",\"url\":\"https:\\\/\\\/kohenavocats.com\\\/ru\\\/jurisprudences\\\/michael-wilson-and-partners-limited-v-john-forster-emmott-and-others\\\/\",\"name\":\"MICHAEL WILSON AND PARTNERS LIMITED v JOHN FORSTER EMMOTT AND OTHERS - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/ru\\\/#website\"},\"datePublished\":\"2026-04-24T11:10:49+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/ru\\\/jurisprudences\\\/michael-wilson-and-partners-limited-v-john-forster-emmott-and-others\\\/#breadcrumb\"},\"inLanguage\":\"ru-RU\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/kohenavocats.com\\\/ru\\\/jurisprudences\\\/michael-wilson-and-partners-limited-v-john-forster-emmott-and-others\\\/\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/ru\\\/jurisprudences\\\/michael-wilson-and-partners-limited-v-john-forster-emmott-and-others\\\/#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/kohenavocats.com\\\/ru\\\/avocats-en-droit-penal-a-paris-conseil-et-defense-strategique\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Jurisprudences\",\"item\":\"https:\\\/\\\/kohenavocats.com\\\/ru\\\/jurisprudences\\\/\"},{\"@type\":\"ListItem\",\"position\":3,\"name\":\"MICHAEL WILSON AND PARTNERS LIMITED v JOHN FORSTER EMMOTT AND OTHERS\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/ru\\\/#website\",\"url\":\"https:\\\/\\\/kohenavocats.com\\\/ru\\\/\",\"name\":\"Kohen Avocats\",\"description\":\"Ma\u00eetre Hassan Kohen, avocat p\u00e9naliste \u00e0 Paris, intervient exclusivement en droit p\u00e9nal pour la d\u00e9fense des particuliers, notamment en mati\u00e8re d\u2019accusations de viol. 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