WAIVING PRIVILEGE IN WITNESS STATEMENTS: ANOTHER HIGH COURT DECISION

The question of waiving privilege in witness statements has been considered several times on this blog. The case of Commodities Research Unit International (Holdings) Ltd -v- King and Wood Mallesons LLP [2016] EWHC 63 (QB) shows that privilege can be waived even though a witness statement states, expressly, that the maker of the statement is not thereby waiving privilege.

CPR 31.14

“Documents referred to in statements of case etc.

(1) A party may inspect a document mentioned in –

(a) a statement of case;

(b) a witness statement;

(c) a witness summary; or

(d) an affidavit

KEY POINTS

  • The fact that the maker of a statement put in that statement that they were not waiving privilege when referring to legal advice they had received is not definitive of the issue of whether privilege had been waived.
  • Where the mentioning of contact with lawyers went beyond giving dates and was being used to establish a claim in damages privilege was waived.

THE CASE

The claimants brought actions against the defendant solicitors alleging professional negligence in the handling of a dismissal of an employee.

THE WITNESS EVIDENCE

There were several witness statements filed on behalf of the claimant.
“ii) A statement of December 2015 from Robert Perlman, the chairman of the CRU group of companies. He says, at paragraph 204,

“As a consequence of the advice CRU received (in respect of which I am not waiving privilege), I agreed to [the employee’s] ‘all-in’ settlement offer of £1.35m. I generally act on the advice of my legal advisers, particularly in the context of litigation where I have limited experience or expertise [footnote omitted]. I typically choose solicitors with specialist relevant expertise that I do not have and who are highly regarded in their field. In this instance, Norton Rose [who were solicitors for the Claimants in the underlying proceedings] were and are a world-class law firm and Mr Glick QC is described as a leading barrister in the latest edition of the Independent Guide to the UK Bar. I recognise there is a higher price for such advice but there would be little point in me paying this premium if I was not going to follow their guidance.”

iii) A statement of Geoff Barber dated 23rd December 2015. Mr Barber is the Chief Financial Officer of the CRU group of companies. He says that the underlying proceedings caused substantial additional work for himself and members of the CRU group. He then exhibits a schedule which sets out in considerable detail contacts between Norton Rose and the Claimants over the course of the underlying proceedings. Mr Barber claims that in doing so he is not waiving privilege.”

WAIVING LEGAL ADVICE PRIVILEGE

“legal advice privilege and litigation privilege can be waived by a client. Whether there has been waiver is determined by the parties’ conduct and Mr Davidson, on the Claimants’ behalf, rightly did not suggest that he could, in the present circumstances, rely on the statements of Mr Barber and Mr Perlman in their witness statements to the effect that they were not waiving privilege – to some extent they clearly had. The extent to which privilege had been waived was for the Court to determine. A client could not ‘cherry pick’ i.e. be selective and waive privilege in relation to one part of a document (or series of documents on the same topic) while maintaining it in relation to other parts of the same document or same series. On the other hand, if there were severable parts of the document or if there were severable issues in the exchanges with legal advisers, privilege waived in relation to one of those parts or one of those issues, did not mean it was waived as well for the others. Finally, not everything in a lawyer’s records was covered by either legal advice or litigation privilege. Thus, for instance, the date and time of a meeting with a lawyer would not be privileged. Correspondingly, a reference only to such matters would not constitute a waiver of privilege in what took place at the meeting. It would be otherwise if the contents of that meeting or communication were sought to be deployed.”
THE JUDGMENT ON THE APPLICATION
The second application – inspection in consequence of Mr Barber’s witness statement
  1. Mr Porter argues that Mr Barber has referred in the schedule to his witness statement to a great many communications to and from Norton Rose. The Defendants are now entitled to see copies of those documents pursuant to CPR r.31.14. Because they have been mentioned in his witness statement, privilege in them has been waived.
  2. Mr Davidson argues that Mr Barber has referred to these matters simply to fix the dates on which he or his colleagues were engaged in the underlying proceedings and in order to elaborate on the Claimants’ claim for lost management time as a result of that litigation. He refers to R v Manchester Crown Court ex parte Rogers [1999] 1 WLR 832 DC in which Lord Bingham observed that a lawyer’s record of the date and time at which he saw a client was not privileged. Mr Davidson submits that Mr Barber was alluding to these matters only for that limited purpose. There was no waiver of privilege. Privilege continued to protect the underlying documents from disclosure.
  3. In my judgment, Mr Porter is right to submit that Mr Barber is not confining his allusion to these documents to that limited purpose. He is deploying them to justify the detailed expenditure of management time. The Defendants have put the Claimants to strict proof of this part of their claim and so this is an issue in the proceedings. Mr Davidson argued that it was obvious that heavy commercial litigation would involve considerable amount of management time. That may be, but the Claimants have chosen not simply to rely on such a bald proposition. Instead, they have provided Mr Barber’s detailed witness statement. The consequence seems to me that privilege has been waived in the documents to which Mr Barber refers. In the circumstances, disclosure is necessary for the fair disposal of the present proceedings and would not be disproportionate. The Defendants are entitled to inspect them.
  4. There may be a degree of overlap between the two parts of the Defendants’ second application. They are, though, advanced as independent reasons for disclosure. Thus, to the extent that the documents to which Mr Barber refers in his schedule concern earlier advices on settlement from either Norton Rose or Mr Glick, they must be disclosed because the Defendants have succeeded on this second part of their application, even though in relation to the first part, they have not obtained an order for disclosure of more than Mr Davidson was willing to concede.

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