CFI 048/2018 Skatteforvaltningen (The Danish Customs And Tax Administration) v (1) Elysium Global (Dubai) Limited (2) Elysium Properties Limited

4.2.1. Save for the letter of engagement sent to Solo Capital Ltd (and others) to sign (Document no 51), all the disputed documents in Annex 2 fall into the category of requests for advice and advice given by Kaye Scholer who are NY lawyers instructed on behalf of the Defendants or their associated companies or entities, in relation to the structure of the Donaldson/La Rosa WHT Scheme as referred to in the Particulars of Claim.

4.2.2. The letter of engagement does not include advice and I cannot see that the fact of instruction of lawyers and the terms of their engagement can be seen as privileged.

4.2.3. All other disputed documents in the Annex, as set out in the Defendants’ submissions of 28 September are otherwise covered by legal advice privilege and any duplicates.

4.2.4. I make no determination as to any waiver of such privilege because insufficient evidence has been made available to me for that purpose.

4.4.1. Document 61 relates to a private purchase of US property by Mr Raj Shah and no evidence has been adduced to show that it is privileged in the hands of either of the Defendants or that he claims privilege in relation to these documents, although this is an email chain between Lee & Miao PLLC who are NY lawyers and those acting for him.

4.4.2. Documents 62 and 65 relate to a private purchase of different property by Sanjay Shah, and despite the lack of evidence, I am prepared to treat those corresponding with Lee & Miao PLLC as acting for him, and because of his ultimate ownership of the Defendants. In those circumstance, given his connection to the Defendants as ultimate owner and the existence of common interest privilege, these documents are subject to legal advice privilege, subject to any issue of waiver.

4.4.3. Document 21 is privileged as a communication between a director of the First Defendant and solicitors in relation to work done in relation to submissions to the prosecutor in Denmark. It is subject to litigation privilege.

4.4.4. Document 39 is privileged as setting out, in a Memo between shareholders/ directors of SCP and associated entities, the advice given by US lawyers Schulte, Roth & Zabel about registration with US Commodity Futures Trading Commission. It is covered by legal advice privilege.

4.4.5. Document 40 is a draft or undated letter from Freshfields addressed to Solo Capital Ltd giving a tax analysis relating to a proposed Belgian share investment scheme. Given the common privilege link between Solo Capital Ltd and the Defendants, it is covered by legal advice privilege. The fact that permission was given by the author of the letter to disclose it to the prime broker is nothing to the point.

4.4.6. Document 42 is said to constitute a “discussion of legal advice provided from a number of advisors, including Loyens, subject to the outcome of a pending Dutch case”. It is only the last 3 paragraphs which contain such advice, however, and in those circumstances, the only part of the email which is privileged as containing legal advice is the section following the words “Another alternative is to use an EU investment fund……”. The succeeding words should be redacted with the explanation “[this has been redacted as summarising legal advice]”.

4.4.7. Document 63: Although the document is expressly marked “Legally privileged” and has the appearance of a document prepared with a view to seeking legal advice, no evidence has been adduced that this was its purpose and the claim for privilege is consequently rejected.

4.4.8. Document 71: Once again the absence of any evidence from the Defendants about this document means that it cannot be said to be privileged on the basis that it was prepared in order to put before lawyers for legal advice. It is an internal memorandum discussing what advice might be taken in the future and refers to GP, as the compliance officer.

4.4.9. Document 72: no longer claimed as privileged.

4.4.10. Document 84: This is a near duplicate of Document 71 and the same principles apply so that the same passages should be deleted as privileged with the appropriate explanation.

4.4.11. Document 85: This is covered by legal advice privilege being the advice of Caroline Dawson of Clifford Chance to SCP. That characterisation is not negated, nor is there any waiver of privilege by it being sent to the private email address of its future CEO, who was legally qualified.