Tamara Oppenheimer QC appeared for Sir Frederick and Amanda Barclay, instructed by Jane Colston and David Chijner of Brown Rudnick LLP, on 6 and 7 May at a remote hearing before Warby J in the well publicised dispute involving the two branches of the Barclay family, headed by the twins Sir Frederick and Sir David Barclay. The breach of confidence and privacy claim brought by Sir Frederick and his daughter arises out of the actions of Sir Frederick’s nephews and others in conducting covert recordings of confidential conversations of Sir Frederick and his daughter concerning their business and personal affairs in the conservatory of the Ritz Hotel.
The Claimants obtained doorstep delivery up orders for various ‘listed items’ including transcripts of the covert recordings. The Defendants withheld the transcripts from inspection on grounds of legal professional privilege, on the basis that the transcripts formed part of a selection and/or were privileged by reason of annotations they had made on the transcripts, relying on the exception in Lyell v Kennedy (No.3) (1884) 27 Ch D 1. In the event the defendants abandoned these claims to privilege prior to the hearing. The Court nevertheless considered the reasonableness of the defendants’ privilege assertions in determining the claimants’ application for costs which had been incurred as a result of the defendants’ position. The Court accepted the Claimants’ submission that there was never any proper basis for contending that the Lyell v Kennedy exception could apply and awarded the Claimants their costs.