Waiver of privilege in draft expert report

The High Court has held that a defendant waived privilege in its draft expert report, since it had deployed significant parts of the report in a witness statement served in defence of an application to strike out its counterclaim: ACD (Landscape Architects) Limited v Overall [2011] EWHC 3362 (TCC). 

The witness statement from the defendant's solicitor stated that he was not authorised to waive privilege in the draft report, but that the effect of the material if adduced at trial would be to underpin "the following salient points". The statement went on to set out 18 separate points which, the judge said, "on any sensible analysis can only have been culled from the report". 

Referring to previous authorities, the judge said the test of whether a document (or part of a document) is deployed is whether its contents are relied on, rather than the effect or impact of the document. Here, although the solicitor said the "effect" of the expert report was to underpin the various points made in the statement, it was clear that in reality he was relying on the contents of the report. The fact that he sought expressly to maintain privilege in the draft report was immaterial, since its contents were in fact deployed. The result was that the defendant was required to disclose the entire draft report, under the principle of collateral waiver or the "no cherry picking" rule.

This case highlights the dangers of seeking to rely on part of privileged material, including a draft expert report, while holding back the remainder. There is always a risk that a party will be taken to have waived privilege more widely, regardless of whether that was intended. Recent cases have illustrated the same principle in relation to reliance on the contents of privileged witness interviews – see posts re Cadogan v Tolley and Berezovsky v Abramovich.