A reminder: relying on privileged material may lead to a wider loss of privilege than you would like

A recent High Court decision acts as a reminder of the dangers that may lie in store for a party to litigation who refers to or relies on privileged material to support its case on the merits. Whenever privileged material has been deployed in this way, the principle of collateral waiver, or the "cherry picking" rule, may come into play to result in a wider waiver than intended: Commodities Research Unit International (Holdings) Ltd & others v King and Wood Mallesons LLP [2016] EWHC 63 (QB).

In this case the court held that claimants in a professional negligence action had waived privilege in legal advice they had received on the merits of the settlement in an underlying action by relying on the content of some of that advice to justify the amount of the settlement. The waiver extended to all legal advice received on the merits of the settlement which was finally agreed, and the instructions on which that advice was given, but not advice given at an earlier stage of the proceedings.

More surprisingly, privilege was also waived in communications between the claimants and their solicitors because those communications were referred to in a schedule to a witness statement served to support the claimants' claim for management time spent dealing with the underlying action. This was despite the normal principle that reference to the fact of a meeting or communication will not waive privilege in its contents. Here the judge found that the references to the documents meant they had been deployed to support the claimants' claims, and so privilege was waived.

The obvious message is one of caution for parties who are considering referring to or relying on privileged material to support their claim or defence in litigation. The question of whether privileged material has been deployed, and the implications as regards waiver, are a matter for the court to decide based on an objective assessment of the parties' conduct - statements to the effect that privilege is not being waived are not effective. The safer course is to avoid referring to privileged material, unless there is very good reason to do so and a party is prepared for the potential consequences.

Background

The defendant solicitors had advised the claimants in relation to severance arrangements with their departing CEO. The CEO subsequently brought proceedings against the claimants, which were settled in October 2012 by a payment of £1.35 million to the CEO.

The claimants then brought the present action seeking the £1.35 million as damages for alleged professional negligence in the advice given. They also claimed over £800,000 in costs which they had incurred in defending the proceedings brought by the CEO, as well as compensation for management time devoted to those proceedings. In their defence, the solicitors challenged the reasonableness of the settlement, and also put the claimants to strict proof of their claim for management time.

The witness statements served by the claimants included:

(i) A statement from Ian Glick QC who represented the claimants in the underlying proceedings, which explained that earlier in 2015 he had been asked to set out in writing the advice he had given to the claimants concerning the October 2012 settlement. He exhibited a copy of his letter dated 30 June 2015 in which he complied with that request.

(ii) A statement from the claimants' chairman which stated: "As a consequence of the advice [the claimants] received (in respect of which I am not waiving privilege), I agreed to [the CEO's] 'all-in' settlement offer of £1.35m." The statement went on to explain that he generally acted on the advice of his legal advisers (in this case from Mr Glick QC and Norton Rose solicitors), particularly in the context of litigation where he had limited experience or expertise.

(iii) A statement from the claimants' Chief Financial Officer, which stated that the underlying proceedings caused substantial additional work for himself and other employees of the claimants. He exhibited a schedule setting out in considerable detail contacts between the claimants and their solicitors over the course of the underlying proceedings (and claimed that in doing so he was not waiving privilege).

In light of these statements, the defendants applied for specific disclosure of all communications between the claimants and, respectively, Mr Glick and Norton Rose, including their advice on the merits and the documents or instructions on which that advice was based. They asserted that privilege in these documents had been waived as a result of the statements referred to above.

Decision

The judge (Mr Justice Nicol) allowed the application in part. He noted that there was no substantial dispute about the applicable principles:

• Whether there had been a waiver of privilege, and the extent of that waiver, were for the court to determine based on the parties' conduct; the claimants could not rely on the statements to the effect that the relevant witnesses were not waiving privilege. 
• A party could not "cherry pick" by choosing to waive privilege in part of a document (or series of related documents) while maintaining privilege in the rest - though if the issues were severable, waiving privilege in relation to one issue did not open up everything.
• Not everything in a lawyer's records was covered by privilege. For instance, the date and time of a meeting with a lawyer would not be privileged, and so 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 a party sought to deploy the contents of the meeting. 

Applying these principles to the facts, the claimants accepted that the effect of the witness statements referred to at (i) and (ii) above was to waive privilege in any advice given by Mr Glick or Norton Rose in October 2012 as to the merits of the settlement, and any instructions leading to that advice.

However, the judge rejected the defendant's argument that the October 2012 advice could not be separated from advice given earlier in the proceedings, so that the whole sequence of advice was opened up. An advice on the merits at one stage in litigation should not necessarily be seen as part of the same sequence as advice on the merits at an earlier stage. The circumstances in which the advice was sought or given at each stage may be quite different. Accordingly, it would not necessarily be "cherry picking" to confine the waiver to the October 2012 advice.

In relation to the witness statement referred to at (iii) above, the judge held that its effect was to deploy the documents listed in the schedule to justify the detailed expenditure of management time, which was an issue in the proceedings. The consequence was that privilege was waived in the documents referred to (to the extent they went beyond advice that had to be disclosed in any event, as a result of statements (i) and (ii)).