A review of recent cases on waiver and privilege.

Consequences of waiving privilege

Whether you choose to waive legal professional privilege, or do so inadvertently, the courts will, on request, look at all the surrounding circumstances in deciding whether to order further disclosure (often asked for by the receiving party in the case of deliberate waiver) or to restrict the use of the disclosed document (at the request of the disclosing party, in the case of inadvertent waiver).

Deliberate waiver during trial

During the trial in Holyoake v Candy [2017] EWHC 387 (Ch) the claimant (C) was cross examined about threats he alleged had been made by the defendant (D); D's counsel argued in cross examination that the threats were fabricated and observed that C had not raised them with D in 2012 when they had allegedly been made. During re-examination of C by his counsel, five privileged emails were put to him, in which in 2012, he had recorded for his then lawyers a near contemporaneous account of D's behaviour.

D contended that by waiving privilege in the 5 emails C had opened up a whole range of privileged communications with his lawyers. He asked for further disclosure of four categories of privileged documents:

• all documents referred to in the five emails
• all documents containing factual instructions relating to the events described in the five emails (ie: the claimants' allegations concerning the period prior to 16 April 2012)
• all documents containing factual instructions to the same firm of solicitors relating to events after 16 April 2012
• all documents containing factual instructions to other firms of solicitors relating to events after 16 April 2012.

The test for collateral waiver

In Fulham Leisure Holdings Ltd v Nicholson Graham & Jones [2006] EWHC158 ChD, Mann J set out the principles for identifying whether there should be collateral waiver: the court should ascertain what the transaction is in respect of which C has waived privilege, and whether further disclosure is necessary to avoid unfairness or misunderstanding of what has been disclosed.

In Holyoake the judge held that the "transaction" was the actual communication in which privilege is waived: the particular emails (and not the generality of communications with the same or other lawyers). But he also held that the actual communications should include documents referred to in the emails already disclosed (the first category listed above), so those should be disclosed.

Going on to look at whether fairness nevertheless required further disclosure, the judge held, on the basis of earlier case law, that it did not: "to open up all communications with lawyers would be tantamount to a disruption of legal professional privilege…" (General Accident v Tanter [1984] 1WLR 100.)

There is no recent Court of Appeal decision on exactly the point that arose in Holyoake: the only Court of Appeal authority cited by the judge in Holyoake is Great Atlantic (1981), in which privilege had been waived in part only of a document and the applicant sought and obtained disclosure of the remainder of that document, where the contents of the document could not be separated. So when the issue for the court is whether further documents should be disclosed (as opposed to other parts of the same document) there will always be a degree of uncertainty about what approach the court will take if your opponent argues for wide ranging collateral disclosure.

Holyoake is helpful in clarifying what is meant by "the same transaction" and should assist parties in ascertaining the likely scope of collateral waiver when, for good reason, as in Holyoake, they need to make the difficult decision to waive privilege. Nevertheless, as the judge noted, the "fairness" test continues to give judges wide discretion, with scope in other circumstances to open up a broader range of privileged documents.

Waiver by (obvious) mistake

If you disclose a privileged document by mistake your opponent may only use it or its contents with the court's permission (CPR 31.20). But the Court of Appeal has held that, unless there is fraud, the court will only prevent use of documents disclosed my mistake if the mistake was obvious.

In Atlantisrealm the junior lawyer inspecting the other side's disclosed documents referred a document to the partner supervising him. The judge had accepted that that the junior lawyer had not himself appreciated that it had been disclosed in error. The partner identified it as a crucial document to "brandish at the opposition in a forthcoming settlement meeting", as the judge put it. The partner circulated it to his clients, and the evidence as to whether he thought that privilege had been waived deliberately was "unconvincing", the judge said, holding that the correspondence showed that he had appreciated that there had been a mistake.

The Court had to decide whether this "two solicitor" scenario, where the first solicitor reviewing the disclosed document did not spot that it had been disclosed by mistake, could be treated as one of "obvious mistake" and lead the court to bar its use. Overturning the judge's decision, the court held that where a second solicitor had spotted the mistake, it could be treated as a case of obvious mistake.

Deprecating the use of the parties' and court's resources for resolving disputes like this one, Jackson LJ added that, in similar circumstances, lawyers should cooperate to "put matters right as soon as possible" and that disclosure depends on parties acting honestly "even when that is against a party's interest".

Atlantisrealm v Intelligent land Investments (Renewable Energy) Ltd, [2017] EWCA Civ 1029

Inadvertent waiver where parties unrepresented

In Microgeneration Technologies Ltd v RAE Contracting Ltd [2017] EWHC 1856 (unrep) a privileged note by the applicants' barrister had been exhibited to a witness statement in error. The other side argued that this was not an obvious mistake so they should be allowed to use the note in the litigation. The judge disagreed: the document as described in the statement and the document actually exhibited were different and on receiving the document the action taken by the directors showed that they were fully aware of the mistake. It made no difference that they were unrepresented: the same test applied, regardless of whether a party was represented by lawyers.

Privilege – still an absolute right

"Exceptionally acrimonious" divorce proceedings gave rise to a libel action (in which the Court of Appeal has recently handed down judgment). In the libel action the claimant (C) sought injunctive relief to prevent the defendant publisher making use of confidential documents, which he alleged had been wrongly and secretly taken from a computer by his wife, who had passed them to the defendant. The documents included privileged communications between C and a Paris based lawyer from whom he sought legal advice concerning the breakdown of the marriage. The High Court ruled in C's favour, granting an injunction to prevent their use and requiring their return. The defendant appealed.

It was agreed between the parties for the purposes of the application that the documents in question were C's confidential property and subject to legal professional privilege. The publisher defendant had argued that cases engaging Article 10 European Convention on Human Rights (freedom of expression) should be treated differently from other cases in which an injunction is sought to restrain the use of privileged material. It also argued that the documents were irreconcilable with witness evidence which C had prepared in the course of the libel action, so should not remain privileged because they showed that he had attempted to mislead the court.

The Court of Appeal held that it could not be said that that the documentation had been created in order to deceive the court; and that Article 10 ECHR freedom of expression cases are not, with regard to privilege, to be treated differently from other cases. Whilst there is an acknowledged public interest in the emergence of the truth during legal proceedings, that interest will always be outweighed by the need to maintain privilege. The only exception is where the privileged documents were themselves created to further fraud (R v Derby Magistrates ex. p B [1996] 1AC 487). Even if the documents in this case could be said to put the claimant's credibility in question, that was not enough to defeat privilege.

The Court of Appeal confirmed that the documents should be returned to C, that all copies should be destroyed, and the defendant restrained from using or disclosing privileged information contained in them.

Lachaux v Independent Print Ltd [2017] EWCA Civ 1327