Professional privilege in translations

Sumitomo Corp v Credit Lyonnais Rouse Ltd ([2002] 4 All ER 68 CA)

In connection with the various proceedings, the company’s lawyers had placed on a litigation database a large number of documents that were in its control. Most of those documents were in the Japanese language and the lawyers commissioned English translations of some of them. In the course of proceedings the company claimed legal professional privilege in respect of the translations even though it accepted that no privilege attached to the documents from which the translations had been made. It contended that the translations were not to be categorised as mere copies of unprivileged documents in its control, and therefore to be regarded as themselves unprivileged, but rather were to be treated as original documents that had come into existence for the purpose of litigation. Alternatively, the company contended that the translations represented a collection of documents selected by its lawyers for the purpose of giving legal advice, or for the purpose of litigation, or both, and that production of the translations would betray the general trend of the lawyers’ advice by disclosing the direction of their inquiries and their areas of focus and concern. Both contentions were rejected by the judge who accordingly refused the claim to privilege.