Carrafa v Asfar (No. 3)

This is the Court’s third judgment in these proceedings. In its May 2020 judgment, the Court granted leave to the plaintiffs to file its Third Further Amended Statement of Claim, joining Mr Simon Fletcher as the fifth defendant, and Mr John Fletcher as the sixth defendant to the proceedings, and vacating a hearing listed to commence that month: Carrafa v Asfar [2020] NSWSC 530 (“the first judgment”).

The Court’s September 2022 judgment determined that the plaintiffs had waived privilege in certain documents over which the plaintiffs had claimed client privilege and gave directions for their disclosure: Carrafa v Asfar [2022] NSWSC 1177 (“the second judgment”). The parties had requested that the Court determine the issue in the second judgment before determining the complementary client privilege issue the subject of this judgment.

The factual background to these proceedings is fully set out in the first and second judgments and is not repeated here. This judgment should be read with the Court’s first two judgments. Events, matters and persons are referred to in this judgment in the same way as they are in the two previous judgements.

This judgment determines the relief sought on the plaintiffs’ motion dated 11 October 2021, namely the plaintiffs’ claim for access to certain documents over which the defendants claim client privilege. The basis of the plaintiffs’ claim on the motion is that the defendants have lost any client privilege over the documents in question by reason of their misconduct and the application of the doctrines embodied in Evidence Act 1995, s 125. The plaintiffs do not dispute that but for the application of Evidence Act, s 125 the defendants’ claim for client privilege is valid.

The Court’s second judgment (at [5] – [12]) sets out the origins of the present contest, in which the plaintiffs contend that the claims of Cleveland and Ficaro and Swaab Attorneys of client privilege over certain documents have been lost due to their alleged misconduct which is said to enliven the operation of Evidence Act, s 125(1).

After the Court’s first judgment, during preparation for a further hearing the plaintiffs issued notices to produce to Cleveland, Ficaro and Swaab Attorneys. These notices to produce included claims for documents that became the subject of claims by Cleveland, Ficaro and Swaab Attorneys for client privilege. The plaintiffs contended that the documents should be produced despite the client privilege claim, as the plaintiffs submitted they were communications made in furtherance of the commission of a fraud or an abuse of power within Evidence Act, s 125(1).

Cleveland, Ficaro and Swaab Attorneys applied to set aside these notices to produce on the grounds that the client privilege should be maintained as s 125 did not apply. In November 2020 to facilitate the determination of this issue, the Court directed that the parties exchange concise bundles of documents. Each party’s bundle was directed to be prepared to contain all those documents that each party said either supported or answered the plaintiffs’ contention that Evidence Act, s 125 defeated Cleveland and Ficaro’s claims for client privilege over the documents caught by the notices to produce.

The documents were supplied by March 2021 in concise bundles and submissions in chief and in reply were all exchanged by May 2021. On 28 May 2021 the solicitors for the plaintiffs notified the solicitors for Cleveland, Ficaro and Swaab Attorneys that they proposed to amend existing evidence in the proceedings filed on behalf of Mr Micheletto, before the Court determined the s 125 issue. A change was foreshadowed to Mr Micheletto’s affidavit evidence of 11 October 2018, with respect to the date on which Mr Micheletto said he first became aware of a caveat over the Hardy’s Bay property lodged on behalf of Cleveland and Ficaro and the reference in that caveat to the 2016 deed. On 23 June 2021 the plaintiffs’ solicitors informed the Court of this new issue, which required the plaintiffs to swear a further affidavit. On 9 July 2021 the plaintiffs’ solicitors, Polczynski Lawyers, served the foreshadowed affidavit of Mr Micheletto. The contents of this affidavit and the way in which it contrasted with Mr Micheletto’s earlier evidence were the subject of detailed analysis in the Court’s second judgment.

In response to Mr Micheletto’s new affidavit of 9 July 2021, YPOL, the solicitors for Swaab Attorneys served on 23 July 2021 a notice to produce on the plaintiffs, seeking documents, including documents passing between the plaintiffs and their solicitors which would otherwise be the subject of claims for client privilege. The parties exchanged submissions in relation to the issue of whether the plaintiffs had waived their client privilege. The Court ultimately found in favour of Swaab Attorneys on that issue in the second judgment. Consequent upon the second judgment the parties agreed upon a regime for the inspection of the plaintiffs’ documents that had been revealed by the second judgment. A further round of submissions on the s 125 issue then took place. That issue is now to be resolved in this third judgment.

The second judgment gives a detailed exposition of the pleading (second judgment at [13] – [53]) and gives a detailed review of the facts (second judgment at [54] – [82]) based upon the affidavits and concise bundles of documents provided by each party pursuant to the Court’s directions. Those findings, supplemented by additional findings in this third judgment, provide the platform for the Court’s conclusions in this judgment.

The applicable legal principles in relation to s 125 may be shortly stated. The issues in these proceedings engage the operation of Evidence Act, s 125, which provides as follows:

If Evidence Act, s 125 is engaged, s 126 may apply to widen the class of documents for disclosure. It provides as follows:

Evidence Act, s 125 is founded upon principles developed at general law. The provision has been commented upon in authorities since its enactment, sometimes drawing upon earlier general law developments. The following principles can be drawn from these authorities:

Here the Court has made use of Evidence Act, s 133 to inspect the documents over which the plaintiffs claim privilege to determine the question in issue although as will be seen, it has not as yet been necessary to consider contests about individual documents are exempted from the application of s 125.

Before analysing the parties’ submissions it is worthwhile to stand back and look at the essential events that constitute the plaintiffs’ fraud case based on the pleading which has been fully discussed in the second judgment. The following conclusions are at least open on a prima facie basis on the available evidence.

Cleveland and Ficaro start the relevant course of events as unsecured creditors of Mr Evans for $369,067. The will appointing Mr Asfar as Ms Evans’ executor and giving the estate to him may have been a forgery, but it can be accepted for the purposes of this analysis that that conclusion is contestable. It can also be accepted for the purposes of this analysis that whether clause 3 of the will creates a bare trust in favour of Mr Evans is also contestable.

Cleveland and Ficaro successfully applied to Kunc J for a freezing order on 15 April 2016, which once obtained, prevented Mr Asfar dealing with the Hardy’s Bay property, without at least getting Cleveland’s and Ficaro’s approval. The making of the freezing order gave Cleveland and Ficaro for the first time a measure of control over the future disposition of the Hardy’s Bay property.

There is ample material in the transcript of the proceedings before Kunc J and in Kunc J’s judgment to support the inference that Cleveland and Ficaro obtained the freezing order by stating to the Court that they were acting on behalf of the Official Trustee and on behalf of all creditors of Mr Evans in making the application and that the Court relied upon these statements made to it.

It is open to infer that these statements to the Court on behalf of Cleveland and Ficaro (leading to the freezing orders being granted by Kunc J) were an implied continuing representation to the Court that Cleveland and Ficaro would henceforth only deal with the assets the subject of the freezing order (including the Hardy’s Bay property) in the interests of all the creditors of Mr Evans. Future dealings with the Hardy’s Bay property in the interests of all the creditors of Mr Evans could only sensibly take place if they occurred upon the instructions of a representative of the creditors of Mr Evans, not just Cleveland and Ficaro. The only available representatives of the general creditors of Mr Evans were the Official Trustee or the plaintiffs.

The representations Cleveland and Ficaro made to the Court to obtain the freezing orders in the interests of all the creditors of Mr Evans could only be fulfilled by Cleveland and Ficaro fully disclosing to the Official Trustee or to the plaintiffs all their proposed dealings with the Hardy’s Bay property consequent upon the freezing orders before those dealings occurred. Such disclosure would have ensured that the creditors of Mr Evans had an opportunity to scrutinise any such proposed dealings of Cleveland and Ficaro to ensure they were consistent with the general creditors’ interests.

The legal basis of this obligation was arguably twofold. First, the representations made to the Court on 16 April 2022 are characterised by the plaintiffs in the pleading as creating a fiduciary duty in Cleveland and Ficaro towards the creditors of Mr Evans to act in their interests. That characterisation (of the creation of a fiduciary relationship in which Cleveland and Ficaro undertook to act in the interests of the general creditors of the estate of Mr Evans) is maintainable on the known facts and the applicable authorities. It can be accepted that the general creditors of Mr Evans did not know what had been said by Cleveland and Ficaro to Kunc J but fiduciary obligations to those general creditors can arise nevertheless in Cleveland and Ficaro. The law is clear that the reposing of actual trust or confidence is not a necessary feature of all fiduciary relationships: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 (“Hospital Products”) per Gibbs CJ at 69. But the element which is critical to establishing a fiduciary relationship, and which is arguably present here, is “that the fiduciary undertakes or agrees to act for or on behalf of or in the interest of another person in a legal or practical sense”: Hospital Products, per Mason J at 69. Here the statements made by Cleveland and Ficaro to Kunc J can arguably be characterised as just such an undertaking.

Second, an obligation of a somewhat similar character may be sourced in a party’s duty not to mislead the Court. A party has a duty to ensure that statements made to the Court are not misleading and do not become misleading without being corrected: see for example Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 24 and 25:

There is a persuasive argument available to the plaintiffs that the same statements made to the Court arguably became misleading as soon as Cleveland and Ficaro began negotiations with Mr Asfar without the knowledge of the general creditors of Mr Evans. For example, had the Court been informed shortly after 16 April that Cleveland and Ficaro were not proposing to inform the Official Trustee or the plaintiffs and obtain their instructions in advance of Cleveland and Ficaro and Mr Asfar dealing with the Hardy’s Bay property, the Court is likely to have requested to hear from the Official Trustee or the plaintiffs before the freezing orders were dissolved and any further dealings with the Hardy’s Bay property were permitted.

Instead, what seems to have happened is that on 25 May 2016 the freezing orders were dissolved without either the Court or the plaintiffs or the Official Trustee being informed that Cleveland and Ficaro and Mr Asfar were negotiating towards execution of a deed (ultimately signed on 6 June 2016), which made no provision for the interests of the general creditors of Mr Evans and tended to work to defeat those interests.

Why were the plaintiffs or the Official Trustee not informed in advance of the 2016 deed being made? Why were the instructions of the Official Trustee or the plaintiffs not obtained to ensure that the interests of the general creditors of Mr Evans were protected when the 2016 deed was made?

There is no obvious answer to these questions other than that to make such disclosure and to seek such instructions would have disadvantaged the financial interests of Cleveland and Ficaro. The defendants reply to such a submission by contending that they had no duty, either fiduciary or to the Court to make such disclosure or to seek such instructions. But what was said to Kunc J lays a firm foundation to argue that such a contention by the defendants arguably is wrong. And the most compelling practical answer to these two questions is that if Cleveland and Ficaro had disclosed their negotiations with Mr Asfar to the general creditors of Mr Evans that would have been likely to inhibit the making of the deal they were proposing excluding the interests of general creditors, such as became embodied in the 2016 deed.

An inference of dishonest conduct on the part of Cleveland and Ficaro in negotiating with Mr Asfar towards the 2016 deed, in dissolving the freezing orders, in executing and in acting upon the 2016 deed to the financial disadvantage of the general creditors of Mr Evans without the full knowledge of either the plaintiffs or the Official Trustee (in dishonest breach of their fiduciary duty), is clearly available from these facts on a prima facie basis. Not honouring a duty of full timely and candid disclosure throughout all these events arguably enabled Cleveland and Ficaro to gain financial advantages at the expense of the general creditors of Mr Evans.

As will be seen below the defendants point out that there is material showing that the plaintiffs became aware of the existence of the 2016 deed as early as July 2016. But such arguments somewhat miss the real thrust of the plaintiffs case based on a fiduciary relationship. If the fiduciary duty for which the plaintiffs now argue were to be established, the plaintiffs or the Official Trustee should not have been left in the position that they were, struggling to work out for themselves what was going on between Mr Asfar and Cleveland and Ficaro. They should have been fully informed of these negotiations by a fiduciary acting in their interests. The defendants’ cases do not attempt to assert that they were fully informed.

It is likely in these circumstances that all documents created for or communicated on behalf of Cleveland and Ficaro in negotiating with Mr Asfar towards the 2016 deed, in dissolving the freezing orders, in executing and then in acting upon the 2016 deed to the financial disadvantage of the general creditors of Mr Evans without the full knowledge of either the plaintiffs or the Official Trustee were arguably documents in furtherance of the commission of a fraud within s 125(1)(a).

Although the Court does not have to decide the matter on the alternative basis under s 125(1)(b), in the Court’s view it is equally open to conclude that the documents were created in furtherance of an abuse of power, namely the power to approach and seek orders from a superior court of record. The relevant abuse of power was failing to relist the proceedings before Kunc J to inform the Court that subsequent events had made previous statements to the Court misleading and to correct those misleading statements.

The Court’s analysis here may raise questions when these proceedings are concluded as to whether any contempt of Court may have occurred. That does not have to be considered now. The parties’ submissions can now be considered in light of this analysis.

Through Mr Cheshire SC the second and third defendants support the fourth defendant’s claim to maintain client privilege over the documents that are subject to the notice to produce.

The Swaab Attorneys submissions. The Swaab Attorneys submissions note that the relevant “fraud” for the purposes of s 125 is the alleged dishonest and fraudulent design that is pleaded in [67A] and [72A] of the pleading. Those submissions contend that to rebut the defendants’ claim of privilege successfully, the plaintiffs must be able to point to some prima facie evidence that the conduct alleged against the second to fourth defendants has the requisite character of dishonesty, in the sense that it involves “a transgression of ordinary standards of behaviour”: Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609 at [123]-[125] per Leeming JA.

The Swaab Attorneys submissions draw extensively upon the decision of the Full Court of the Federal Court of Australia in KTC v David [2022] FCAFC 60 (“KTC”) including observations of Anastassiou J (at [369]) that, “as a general proposition, without more, a solicitor asked to prepare transaction documents is unlikely to be found to be a knowing participant” in a client’s dishonest scheme.

Then applying KTC, Swaab Attorneys put four principal submissions:

The theme of all of these Swaab Attorneys submissions is much the same. The Swaab Attorneys submissions appear to be directed to showing that the plaintiffs’ case must fail against the firm at final hearing (and therefore upon the present application) because there is no prima facie basis for that claim against the firm. But that is not the correct issue here. Whether the plaintiffs’ claim against Swaab Attorneys is strong or weak will be determined at trial.

The issue now before the Court is a different one and does not require the Court to assess whether the plaintiffs are likely to be successful against Swaab Attorneys, as distinct from there being a prima facie case of fraud against Cleveland and Ficaro. As the discussion of authority above shows, the application of s 125 may result in the defendants losing their claim to client privilege, even if the prima facie evidence of fraud only implicates the second and third defendants, the two clients Cleveland and Ficaro, and does not implicate the firm Swaab Attorneys. Importantly the authorities and the terms of s 125 make clear that the plaintiffs only need to show that either the lawyers, or the client (but possibly both), knew or had reason to know of the fraud alleged. Here, to enliven the application of s 125 it is sufficient for the plaintiffs to assume the burden of showing that there are reasonable grounds for finding that Cleveland and Ficaro knew or had reason to know that documents passing between them, and Swaab Attorneys were in furtherance of a fraud or an abuse of power. In the Court’s view the plaintiffs have discharged that burden. Whether Swaab Attorneys also knew or had reason to know that a fraud or abuse of power was occurring on the balance of probabilities will be determined at trial.

The plaintiffs’ submissions take issue with the main points made in the Swaab Attorneys submissions. The plaintiffs’ reply submissions engage directly with the defendant’s submissions by attempting to demonstrate at least a prima facie case that Swaab Attorneys knew or had reason to know of the fraud identified in the pleading, even though as has been explained, establishing that is not necessary for a loss of privilege under s 125. It is now convenient to consider the plaintiffs’ reply submissions in conjunction with the Court’s analysis of the the Swaab Attorneys submissions.

The plaintiffs answer the Swaab Attorneys’ first submission as follows:

The plaintiffs’ first reply submission here is persuasive in showing that there is a sound basis in the transcript to infer that the statements made to Kunc J on behalf of Cleveland and Ficaro for the purposes of obtaining the freezing orders clearly represented to the Court that the application was being made on behalf of all the creditors of Mr Evans. The defendants’ first submission is not sustainable once the reasons of Kunc J and the text of what was said to the Court on behalf of Cleveland and Ficaro are considered.

The plaintiffs answer the Swaab Attorneys’ second submission as follows:

The plaintiffs’ answer to this submission is persuasive. It is not necessary for the second, third or fourth defendant to have known in July 2016 that the Hardy’s Bay property in fact formed part of the estate of Mr Evans. The defendants can be taken at their word when they said to Kunc J that they were acting on behalf of all creditors in bringing an application. It only made sense to bring an application on behalf of all creditors if it was thought that Mr Evans’ bankrupt estate at least had an arguable claim to the Hardy’s Bay property. It is unlikely such a statement would have been made to the Court on behalf of Cleveland and Ficaro unless they had some belief that the estate of Mr Evans had an arguable claim to the Hardy’s Bay property. Reasonable grounds for a finding that Cleveland and Ficaro were involved in a fraud upon the general creditors of Mr Evans can be established against Cleveland and Ficaro without establishing that they had clear knowledge of the ownership of the Hardy’s Bay property, a matter which would ultimately only be determined in a final hearing of the proceedings.

The plaintiffs answer the Swaab Attorneys’ third submission as follows:

The plaintiffs’ answer to the defendants third submission is persuasive. The plaintiffs’ factual summary set out in their submission on this issue is accurate. It accords with the known facts.

Even if the defendants’ submission is accepted as a correct characterisation of the facts, the submission falls well short of repelling the plaintiffs’ case of dishonest concealment. Let it be assumed for the sake of argument that the defendants are right that as at 18 July 2016, the plaintiffs were expressly on notice that (i) Cleveland, Ficaro and Mr Asfar had entered into a deed of settlement, pursuant to which Cleveland and Ficaro were claiming an interest in the Hardy’s Bay property; (ii) it was likely that Mr Asfar had agreed to “pay [Cleveland and Ficaro] money to avoid further inquiry”; and (iii) a lapsing notice had been issued in respect of the Official Trustee’s caveat. And let it further be assumed that despite being aware of those matters, the plaintiffs did not make inquiries of Swaab or Ms Asfar’s lawyers until the commencement of the bankruptcy proceedings in August 2016.

Even if these matters are accepted they do not answer the more fundamental case the plaintiffs advance of dishonest breach of fiduciary duty, where the proper discharge of that duty would have required complete disclosure to the plaintiffs or to the Official Trustee in advance of all the steps being taken between Mr Asfar and Cleveland and Ficaro.

An argument that it was up to the plaintiffs or the Official Trustee to use their strategic intelligence and independent legal advice to divine what was going on between Mr Asfar and Cleveland and Ficaro misses the main thrust of the plaintiffs’ case of dishonest breach of fiduciary duty. Properly understood the plaintiffs’ case is that full disclosure should have occurred to the representatives of the general creditors of Mr Evans as soon as the freezing orders were obtained and any dealings between Cleveland and Ficaro and Mr Asfar commenced; and, anything short of such complete disclosure from that point onwards, which advantaged Cleveland and Ficaro at the expense of general creditors was arguably dishonest. Such a case is amply available on behalf of the plaintiffs on the materials before the Court and is not displaced by the arguments here advanced on behalf of the defendants. In the inference of a dishonest rather than a casual nondisclosure is more readily drawn when the 2016 deed contains provisions preventing disclosure to the plaintiffs and requiring Cleveland and Ficaro not to fund the Official Trustee in relation to the bankrupt estate of Mr Evans.

Finally, the Swaab Attorneys’ fourth submission based on certain statements in KTC (that the preparation of documents by a lawyer, without more, is not sufficient to establish knowing assistance in a dishonest or fraudulent design) Is not directly dealt with by the plaintiffs but is readily answered as follows. This argument misapprehends the plaintiff’s burden on this application. The plaintiffs do not have to establish that Swaab Attorneys’ gave knowing assistance to a dishonest or fraudulent design before s 125 is enlivened to cause a loss of the second and third defendants’ client privilege.

Swaab Attorneys also rely upon written submissions that they originally made on 22 March 2021 in the exchange of concise bundles of documents on each side relating to the s 125 issue. These submissions were made before the parties were diverted to deal with the waiver issue the subject of the second judgment.

The Swaab Attorneys submissions made on 22 March 2021 do not provide any additional persuasive arguments to resist the application of s 125 to the documents in question. First in those earlier submissions Swaab Attorneys argue that it was clear that in obtaining the freezing orders Cleveland and Ficaro were acting in their own interests and not in the interests of other creditors. The short answer to that submission is that in fact the reverse inference may readily be drawn from the available materials and in particular from the statements made by Cleveland and Ficaro to Kunc J.

Second in those earlier submissions Swaab Attorneys relies upon certain correspondence in which Mr Baddams put the plaintiffs on notice that they “may need to seek alternative representation”, if they formed the view that it was necessary to extend the operation of the caveat lodged by the Official Trustee. Swaab Attorneys submit that such conduct does not reflect an attempt to mislead the plaintiffs or to conceal from them the true situation, as at that time the Official Trustee had lodged its caveat on the title to the Hardy’s Bay property, which was readily discoverable by title search.

This argument is not persuasive. A statement to the plaintiffs that they “may need to seek alternative representation” is unlikely to have alerted the plaintiffs to the true facts, of which Cleveland and Ficaro were aware – that their negotiations towards the 2016 deed had started with Mr Asfar. Nor is the Swaab Attorneys’ statement persuasive that “whether Cleveland and Ficaro might have chosen to be more forthcoming about their intentions with respect to pursuing negotiations with Asfar is beside the point” at all. It is not “beside the point”; their failure to give such basic information to the plaintiffs is central to the availability of the inference of dishonesty.

Third, in those earlier submissions Swaab Attorneys argue that their steps in relation to the removal of the caveat were entirely orthodox and undertaken in accordance with the Real Property Act 1900 and that serving the lapsing notices on the Official Trustee rather than the plaintiffs, who were not the caveator, is not sinister.

This argument is not persuasive. It is to be remembered that Cleveland and Ficaro instigated the replacement of the Official Trustee by the plaintiffs which might predictably have reduced the responsiveness of the Official Trustee to act quickly to the receipt of a lapsing notice. This was followed by the defendants decision not to inform the plaintiffs of the lapsing notice and the terms of the agreement in the 2016 deed, all of which did not assist the plaintiffs. Taken together these circumstances may found an inference of dishonesty.

Finally, Mr Cheshire SC on behalf of Cleveland and Ficaro submits that for a loss of privilege to occur under s 125 the documents in question must be in furtherance of a fraud rather than merely being documents evidencing a fraud.

This distinction is a very fine one in the present circumstances. This argument does not lead the Court to hold that client privilege is retained in respect of any group of documents. As Amcor shows, any positive steps taken by a fraudster to conceal information about the fraud or to place the property beyond the legal reach of the victim once the fraud is discovered, can be in furtherance of the fraud. The Court’s general review of the documents in dispute shows the documents are involved in the negotiation of the 2016 deed or are consequent upon its execution. These can all arguably be said to constitute positive steps by Cleveland and Ficaro to conceal information to further a dishonest breach of fiduciary duty and to place the Hardy’s Bay property beyond the reach of the general creditors of Mr Evans.

Otherwise, Mr Cheshire relies upon the same arguments as those put on behalf of Swaab Attorneys, which the Court has already analysed.

It is to be noted that where the Court has in these reasons said that inferences of dishonesty are available is statement that there are reasonable grounds for inferring dishonest conduct. But this does not mean that without more those inferences should now be drawn. The contest about drawing those inferences must await a final hearing. In accordance with authority such statements should be construed as only indicating the availability of such inferences.

The defendants’ arguments have been unsuccessful, so the plaintiffs should have access to the second and third, and fourth defendants’ documents in the packets in the Court file marked ‘N1’ and ‘N3’. Should the defendants wish to seek leave to appeal from these orders, they will not become operative until after Friday 17 February 2023.

The Court understands from the way the parties’ submissions have been advanced that the parties are prepared to accept that all the documents the subject of challenge under s 125 may be dealt with in much the same way and that a single ruling will grant access to them all. But it may be that the Court’s present reasons for decision will allow for raising of other arguments by the defendants that individual documents may perhaps be treated differently. If that is the case, a limited opportunity will be given to the defendants to put forward such an argument before access is granted to the plaintiffs. But the principles discussed above and the Court’s review of the documents leads the Court to the view that in the absence of such additional submissions that all the documents in dispute may be dealt with together as a class.

The second, third and fourth defendants have been unsuccessful in their claims for client privilege adjudicated in this judgment over the documents produced under the notices to produce. Costs would ordinarily follow the event and the Court would ordinarily order the second, third and fourth defendants to pay the plaintiffs’ costs of that application on the ordinary basis.

As a result of the Court’s second judgment the plaintiffs were unsuccessful in their claims for client privilege over the documents the subject of the 11 October 2021 motion. Costs would ordinarily follow the event and the Court would ordinarily order the plaintiffs to pay the second third and fourth defendants’ costs of that application on the ordinary basis.

Unless either party notifies chambers before 10 February 2023 the Court will make the costs orders in chambers foreshadowed in order (3) below. This should conclude the present contest and the proceedings should now be listed before the Registrar in Equity for the making of further trial management directions to prepare the proceedings for final hearing.

For these reasons, the Court makes the following orders and directions: