In Kyla Shipping Co Ltd and another v Freight Trading Ltd and others, Charles Hollander QC (sitting as a deputy judge of the High Court) provides helpful guidance on when litigation privilege applies – and the circumstances in which it may be waived.
Background
On 6 April 2007, sections 140A to D of the Consumer Credit Act 1974 (the 1974 Act) came into force pursuant to the Consumer Credit Act 2006 (the 2006 Act). These replaced the old “extortionate credit bargain” provisions and, in brief, confer powers on the court to grant relief in connection with a credit agreement if it determines that the relationship between creditor and debtor arising from that agreement is unfair to the debtor.
Where the court is to hand down a reserved judgment, the parties and their legal representatives ordinarily do not have to wait until the judgment is made public to find out the result. They are given a sneak preview, on confidential terms, usually a couple of days beforehand. This is usually referred to as receiving the judgment under embargo.
In the great majority of cases, it all works smoothly – but sometimes it doesn’t, and the consequences can be dramatic. A breach of the embargo may be treated as a contempt of court. At the very least, as recent examples have shown, it is likely to draw judicial ire and public castigation.
This blog post considers how parties, and their lawyers, can make sure they don’t end up in danger of such treatment.
