The Court inspected 21 documents produced on subpoena by a consultant to Qube and ruled on privilege claims on a document-by-document basis, upholding some and rejecting others. The Court confirmed its willingness to exercise the power of inspection under Esso v Commissioner of Taxation where there is residual uncertainty about privilege, even over the objection of the party seeking access. The Court reiterated that privilege should not be claimed where there is merely an argument or possibility that a communication is privileged, and that the distinction between the subject matter of legal advice (generally not privileged) and the content of advice itself (privileged) can be difficult to apply in practice, particularly in the context of consultant invoices and timesheets.
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