In re the Estate of Rene Rivkin [2008]


The term "correspondence" in the European Convention on Human Rights 1950 art.8 was not limited to letters still in the possession of the writer or in the process of transmission, but would be expected to apply to exchanges of letters in whoever's hands they were.


The court determined the costs of the application of the applicant trustee (T) for the disclosure of documents from the respondent company (V), which had been resisted by the interveners (H). T, the trustee in bankruptcy of a deceased bankrupt (R), had applied for an order that V give disclosure of documents relating to R's dealings with another company. V did not object to the application, but H, who were lawyers who had had dealings with V, feared that the order might be in breach of their confidence or that of their clients. There were other proceedings related to R which H had also intervened in, and H were concerned that the documents V had could, if disclosed to T, become known to the parties in the other case without H being able to object. H had applied for the application to be stayed pending the outcome of the other proceedings, but this was rejected. By the time the application was heard, H had inspected the documents held by V and concluded that they only objected to a handful of documents; independently of H's right to object to the disclosure, the court found that those documents fell outside the terms of T's application and were not to be disclosed. The remaining documents were to be disclosed, on condition that T could not show them to the parties in the other proceedings without leave.


(1) H had had sufficient interest to intervene in the application through the engagement of their rights under the European Convention on Human Rights 1950 art.8. Documents created by H and sent to V continued to be "correspondence", so were protected by art.8, after they had been received by V, and H's private life was also protected by art.8 despite it being a business rather than an individual, Niemietz v Germany (A/251-B) (1993) 16 EHRR 97 ECHR considered. (2) H had also conducted their resistance to the application in an appropriate manner. Their initial objective had been to prevent the application being determined until the other proceedings had concluded: the rejection of their application to stay the application with an order to pay costs on an indemnity basis was sufficient reflection of the court's disapproval of the attempt to delay the application. No further adverse costs order would be appropriate in respect of the time before that order, and after then H had conducted their opposition properly. (3) Although T's application had largely succeeded, it had not succeeded entirely, and but for H's intervention he would have obtained information that was outside the scope of his application. T and H would each bear their own costs of the applications, save as to those costs already determined.

Costs determined