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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Isbilen v Turk & Ors [2022] EWHC 697 (Ch) (25 March 2022) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2022/697.html Cite as: [2022] EWHC 697 (Ch)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTERIM APPLICATIONS LIST

		Royal Courts of Justice Rolls Building, Fetter Lane, London, EC4A 1NL
		25 March 2022

Mr David Halpern QC :

1. Today is the return date in respect of a search order which I granted to the Claimant on 16 March 2022 at a hearing without notice to the Defendants. I embargoed my previous judgment, pending the carrying out of the search. There is no longer any compelling reason for that judgment to be embargoed, and I now authorise it to be made public.
2. The relevant background is set out in my previous judgment and in Miles J's judgment of 4 March 2021, in which he granted the Claimant a worldwide freezing order against the First Defendant ("Mr Turk"), together with (inter alia) a disclosure order.
3. Mr Turk appeared before me today as a litigant in person. I asked whether he would wish to have a short adjournment to enable him to obtain advice pro bono under the CLIPS scheme, but he confirmed that he was content to proceed with the hearing. He was very cooperative and indicated that he was content for the Claimant's lawyers to see all documents, including legal advice, because he had nothing to hide. Mr McCourt Fritz, who appeared with Mr Benham-Mirando for the Claimant instructed by Peters & Peters LLP, very properly said that he would not wish to take advantage of Mr Turk's offer to waive privilege whilst he was a litigant in person. I commend both Mr Turk, for his offer to waive privilege, and Mr McCourt Fritz, for declining to accept it.
4. Aside from Mr Turk, the only Defendants who are actively defending these proceedings are the Second, Fourth and Tenth Defendants. Shoosmiths LLP, who represent these Defendants, wrote yesterday to Peters & Peters LLP, stating that they had no concerns about material obtained during the search and had no particular points to bring to the court's attention. This obviates the need to deal with the issue whether those Defendants are able to assert any form of privilege in the documents which have been seized.
5. I shall continue the search order which I made on 16 March. The search itself took place on 17 March and has been completed. The Supervising Solicitor, Ms Claire Broadbelt of Greenberg Traurig LLP, has produced a full report and there are no issues arising from it which need to be dealt with today. For the avoidance of doubt, I am not today ordering any further search of Mr Turk's premises. The reason for continuing the order is principally to enable the Supervising Solicitor to continue to hold the documents seized and to enable the Digital Forensic Specialist to continue to hold the electronic documents and other imaged information seized. Mr Turk has raised no objection to this order continuing, and I am satisfied that it needs to be continued.
6. My original order envisaged a two-stage process under which documents and imaged information would be seized in order to protect them from removal, destruction or tampering, but that there would be no inspection on the Claimant before the return day. The Claimant now seeks an order for inspection. I am satisfied that she should have an order for inspection, subject to suitable safeguards to protect Mr Turk. In A v B [2019] 1 WLR 5832 Mann J considered the position in the case of a "first shot" search order, that is a search order made at the outset of the proceedings. He said that the usual purpose of a search order was to preserve evidence, and hence it did not necessarily follow that the other party should be permitted to inspect it at the outset of the proceedings. However, the present case is different, because a disclosure order was made against Mr Turk by Miles J at the start of the proceedings. One of the grounds on which I made the search order was that Mr Turk appeared to be in continuing breach of that order. The search order was therefore necessary in order to give effect to that order, and the inspection of documents seized is part of the same process. This makes it unnecessary to consider whether I would have ordered inspection if there had been no apparent breach of earlier disclosure orders.
7. I turn now to the safeguards which are proposed. As I have said, Mr Turk is willing to grant her unrestricted inspection, but in my judgment it is right that safeguards should be put in place, as Mr McCourt Fritz has proposed. The safeguards that are required are in relation to (i) privilege and (ii) relevance. Of the two, the former is the more critical, because it has the potential for causing the greater harm to Mr Turk.
8. In the case of hard copy documents which are currently held by the Supervising Solicitors, she will remove anything which she considers to be privileged. She will return the privileged documents to Mr Turk and will permit inspection of the remaining documents. She satisfied herself before seizing the documents as to their relevance.
9. In the case of electronic documents and any other imaged information, there will be a two-stage process to check for privilege and relevance respectively. The first stage will be for keyword searches to be made by an electronic document review and processing platform, in order to exclude potentially privileged documents. The keyword searches contain words relating to solicitors and barristers who have acted for Mr Turk. He has reviewed the list and added two more names. The electronic platform will then generate an index of the excluded documents, without revealing their contents. If the Claimant seeks to challenge the exclusion of any documents, there is a procedure for an independent barrister to be appointed to review the documents (this is necessary because Mr Turk is a litigant in person). Mr Turk will then have 7 days within which to assert privilege over (i) any documents not excluded and (ii) any documents which have been included as a result of the independent barrister's review.
10. The second stage will be for the documents which are not privileged to be reviewed by the Claimant's solicitors via the electronic platform, using predictive coding to establish relevance. I was referred to a judgment of Master Matthews (as he then was) in Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch) in which he helpfully explained the use of predictive coding in order to establish relevance of a vast number of documents. This was in the context of ordinary disclosure but there is a clear analogy with the present case and I am satisfied that this is an appropriate way to proceed. Inspection of the contents of documents will be limited to those documents which are found to be relevant.
11. Mr McCourt Fritz asks the court to vary the provisions made by Ms Pat Treacy sitting as a deputy judge on 18 March 2021 and by me on 16 March 2022 for fortification of the Claimant's undertaking in damages. The current regime requires her to maintain some $1.39 million in her solicitors' client account. What is proposed instead is that the amount will be increased to some £2.1 million but it will be in the form of assets which are held by Credit Suisse as being the sum required to comply with the terms of her UK visa. Mr McCourt Fritz has assured me that there is no charge over these assets and nothing to prevent Mr Turk from enforcing against them, if the court were to find that the Claimant was liable to pay compensation in respect of the orders that have been made. The only consequence was that she would be in breach of her visa requirements unless she replaced the assets against which Mr Turk had enforced. Mr Turk confirmed that he had no objection and so I make this order.
12. The seventh affidavit of Mr Tickner, the Claimant's solicitor, corrects two errors in counsel's submissions to me at the earlier hearing which found their way into my previous judgment. It is not necessary for me to say more about these errors, save that they do not affect the conclusions which I reached on that occasion.
13. Finally, Mr Turk said that he wished to apply to discharge the passport order made by Miles J. The order gives him liberty to apply to do so, but it will be necessary for him to give notice to the Claimant. Initially he said that his current visa is due to expire on 4 April, but it then emerged that it does not expire until August, so there is time for him to make an application if he chooses to do so.

Disposition

14. I am satisfied that I should make the order sought. I will discuss the precise terms of the order with counsel and with Mr Turk.