Yash Bheeroo acts for art collectors in dispute concerning without prejudice privilege and pre-trial committal proceedings
Judgment was handed down by Mr Justice Trower on 23 November 2020 following an application for permission to bring pre-trial committal proceedings ( EWHC 3155 (Ch)). The dispute concerns the alleged existence of an oral agreement between an art dealer and a prominent family of art collectors for the sale of a Picasso artwork. As part of the ongoing dispute, it is alleged that the art dealer falsified evidence purporting to show a multi-million-dollar offer being made for the artwork by the co-founder of Microsoft.
The judgment is one of the first decisions following the enactment of the new CPR Part 81 on 1 October 2020 and following the decision of the Court of Appeal in TBD (Owen Holland) Ltd v Simons & Ors  EWCA Civ 1182. While the Judge found that a strong prima facie case of falsification had been established, he concluded it was not in the public interest for committal proceedings to take place prior to the trial of the substantive action.
The judgment is particularly noteworthy for its consideration of whether the threat of committal proceedings in without prejudice crrespondence constitutes ‘unambiguous impropriety’ so as to fall within one of the exceptions to the general rule, as identified by Robert Walker LJ in Unilever Plc. v. Procter & Gamble Co.  1 WLR 2436. The Judge at  found that: “More importantly, I do not consider that its contents were inappropriate, nor more particularly could they be characterised as evincing unambiguous impropriety. In light of the information that had become available to the Defendants, it was obvious that committal proceedings required to be considered at some stage. If there were to be a mutual settlement of all claims and cross claims against each other, it was likely to be necessary for any prospective contempt application to be wrapped up in any settlement. As Foxton J said in Integral Petroleum at  “any settlement of the overall commercial dispute is necessarily going to have to address the position of the committal application”.”
Yash Bheeroo acts for the Defendants in the proceedings, instructed by Trowers & Hamlins LLP.
Click here to read the full judgment.
The case has also been covered by various outlets (including The Times and Daily Mail).