The Bermuda Court of Appeal heard closing arguments in a preliminary hearing for a family fortune estimated at $2.7 billion yesterday.

The Court of Appeal hearing is a prelude to a possible legal battle in the Bermuda Supreme Court in which Swiss-based Baron Hans Heinrich Thyssen-Bornemisza is trying to regain control of the family fortune.

Lawyer Robert Ham, who is representing baron Hans Heinrich Thyssen-Bornemisza, told the judges of the Court of Appeal -- Sir James Astwood, Sir Alan Huggins and Edward Zacca -- that some element of dishonesty, fraud or the like must be found before it can rule there is an abuse of the process of the court.

The hearing is over whether documents dealing with legal advice to the baron and his wife can be used as evidence in the upcoming trial, or whether they are privileged communications.

Mr. Ham said the defendants must show the court something more than delay by the Baron before he brought his claim for privilege. The Baron's lawyers are appealing a ruling that documents belonging to his wife Carmen (Tita) could be disclosed for use in an upcoming civil case.

The Baron's lawyer argued that special circumstances exist which prevent these legal communications between the couple and their lawyer from being disclosed.

He continued by saying the Baroness was not a party to this matter so she should be allowed to bring her claim later if it was necessary.

He disagreed with Puisne Judge Denis Mitchell who ruled earlier this year in Chambers that the Baroness should and could become a party to the action.

Mr. Ham contended that the Baroness only had a hope of some financial benefit, and not a direct benefit. That was not enough to make her a part of the suit.

The plaintiff, who are the Baron and LRT Trustee Limited, claimed the question before former Supreme Court Puisne Judge Justice Ground was one which concerned the Baron's privilege only, Mr. Ham said.

He urged the court to adopt a flexible approach when considering the allegation of abuse of process of the court. Mr. Ham said unless and until the Baron dies, the Baroness' powers remain uncertain. Her interest in the estate of the Baron only comes into effect at the death of her husband.

Mr. Ham concluded that where communications between the baron and baroness are priviliged both parties must waive that privilege.

Lawyer Alan Boyle, who is representing the Baron's son Georg, argued any claim to privilege was misconceived. Mr. Boyle said the only reference to privilege was made in November last year when lawyers for the defendants demanded further documents to be disclosed.

Nicholas Patten, representing the corporate defendantsFavorita Holding Ltd., Thybo Holding Ltd., and Tornbuoni Ltd., argued that the plaintiffs were ordered to hand over all documents.

The Court of Appeal reserved judgement at the end of the preliminary hearing.

BUSINESS BUC