High Court orders Herbert Smith and RBS to bare all

Fresh twist in Highland Capital case as privilege waived further

A judge has demanded that privileged communications between Herbert Smith and RBS be handed over in a £66m case in which the bank ditched the firm in favour of ­Linklaters.

At a pre-trial review (PTR) in the High Court on 22 November, Mr Justice Burton ordered RBS to disclose privileged communications between its in-house lawyers and Herbert Smith.

RBS is taking action against US hedge fund Highland Capital, which is being represented by Cooke Young & Keidan. Highland has also proposed that internal communications between Herbert Smith lawyers in relation to the case be disclosed, but at the PTR it was decided that would be discussed at another date.

The case relates to a collateralised debt obligation (CDO) funded by RBS and issued by Highland in 2008. The CDO failed to close because of the economic crash and RBS called in its loan.

In his original judgment Burton J ordered Highland to pay the difference between the value of the loans and RBS’s financing, but was critical of RBS’s behaviour in recalling its loan and accused the bank of a “deception” by holding a “sham” auction for loans that it never planned to sell.

During earlier hearings RBS voluntarily waived ­confidentiality on communications with Herbert Smith up to 18 June 2010, the date when RBS managing director Sam Griffiths made a witness statement containing allegedly ­incorrect statements.

At the PTR Burton J ordered RBS to disclose all relevant information up to the quantum hearing in December 2010, despite protests from RBS counsel.

The issue of legal privilege has heated up as the ­litigation boom has taken hold. In November 2012 the Supreme Court will decide in Prudential v HMRC whether accountants ­offering tax advice should enjoy legal professional privilege. The decision will give clarification on whether privilege is a judge-made rule.

“Privilege belongs to the client and people don’t realise that only confidential communications attract privilege, so lawyers have to be careful,” said one senior litigator. “You can’t be a little bit pregnant, and once you waive some privileged documents it’s easy for the other side to say they need all the information to put things into context.”

Linklaters and Maitland Chambers’ John Nicholls QC are advising RBS, while Highland has turned to Cooke Young and One Essex Court’s Stephen Auld QC.

Herbert Smith and Cooke Young declined to comment.