High Court decision illustrates limits of the cherry-picking rule

The High Court has concluded that, where a claimant waived privilege in certain emails to rebut a suggestion of recent fabrication, only a small number of other privileged documents had to be disclosed as a result of the cherry-picking rule: Holyoake v Candy [2017] EWHC 387 (Ch). (The decision dates from February, but a transcript has only recently become available.)

Whenever a party to litigation deploys privileged material to support its case on the merits, the principle of collateral waiver, also known as the “cherry picking” rule, may come into play to result in a wider waiver than intended. In general terms, the court will require disclosure of any further privileged material that forms part of the same “transaction” or “issue”, and any further material required to avoid unfairness or misunderstanding of the material disclosed.

On the facts of the present case, the court found that the relevant “transaction” was relatively narrow; in effect, it was limited to the particular series of emails that had been relied on. It did not extend to later privileged communications on the same topic, and fairness did not require their disclosure.

In practice, however, parties who are considering deploying privileged material to support their case should take a cautious approach. Although the judge in this case indicated that his decision was based on a wish for a consistency and predictability, the courts’ approach to this question is anything but predictable – in particular, because it is highly fact-dependent. Accordingly, a decision to waive privilege should never be taken lightly.

Background

The claimant alleged that the defendants had made certain threats to him and his family. In the course of cross-examination, the defendant's counsel suggested to the claimant that he had made up the allegations. In re-examination, in order to rebut the suggestion of recent fabrication, the claimant's counsel put to him a series of four emails which he had written to his lawyers around the time of the alleged threats and which referred to threats said to have been made by the defendants.

It was not disputed that the emails were privileged or that, by putting the emails in evidence, privilege had been waived. The claimant therefore disclosed the four emails, and one other which it was accepted formed part of the same series. The question to be determined by the court was whether the claimant had thereby waived privilege in certain other documents under the principle of collateral waiver or the "cherry picking rule".

In particular, the defendant sought an order that the claimant disclose: (i) all other documents referred to in the previously privileged documents; and (ii) (in broad summary) all other privileged communications on the topic of threats.

Decision

The court (Mr Justice Nugee) granted the order in respect of the documents referred to in the previously privileged documents (the first class of documents referred to above) but refused the order in respect of any other documents.

In relation to the first class, ie the documents referred to, the judge said there appeared to be "an incorporation by reference", and so the documents should be disclosed as part of the same conversation.

In relation to the other documents, it was common ground that the most recent detailed consideration of the principle of collateral waiver was by Mann J in Fulham Leisure Holdings Limited v Nicholson Graham & Jones [2006] EWHC 158 (Ch). As that case shows, in considering the question of collateral waiver, the court must first identify the "transaction" or "issue" for which disclosure has been made. It may be apparent that what has been disclosed is a single "transaction", eg the advice given by a lawyer on a given occasion, but if the transaction goes wider than that, the whole of the wider transaction must be disclosed. When that has been done, further disclosure may be necessary to avoid unfairness or misunderstanding of what has been disclosed.

The judge rejected the defendant's suggestion that here the relevant transaction or issue was the claimant's accounts to his lawyers of the defendants' allegedly threatening and unlawful behavior. Having reviewed the relevant authorities, the judge took the view that the "transaction" in respect of which disclosure has been made meant the actual communication in which privilege had been waived. In the present case, that was the four emails, and the others which formed part of the same communication and therefore the same transaction. It was not, as the defendant submitted, all communications between the claimants and their lawyers on the topics of alleged threats and their consequences.

The next question was whether fairness required disclosure of other communications to the claimant's lawyers about the threats, so that the court had the full picture. On this point, the defendant employed what the judge described as a number of "beguiling metaphors", including that it was all part of the same cherry tree or at least the same orchard. However, the judge rejected the defendant's submissions, saying:

"However, I think it is necessary to adopt a structured approach. There are, I think, two principles in play: one is that a party can pick and choose what material to waive privilege in.... The other is that if a party does choose to waive privilege, fairness may require further disclosure. These principles are obviously in tension and different minds may have very different views as to where the balance is to be struck. I think in those circumstances appeals to what is fair are apt to be an elusive test, as what strikes one judge as fair in one case may not strike another judge as fair in another case."

Given that the scope of collateral waiver is not a discretionary exercise, but in principle an objectively determinable matter, the judge concluded that it was "safer and more satisfactory" not to rely on fairness, but on what had been done in previous cases so as to produce a more consistent, predictable result. In particular, he followed the approach of Hobhouse J in General Accident Fire and Life Assurance Corporation Limited v Tanter [1984] 1 WLR 100 where, on similar facts, the court found that fairness did not require disclosure of later privileged communications on the same topic.

Nugee J accepted that in Fulham, the court required disclosure of later advice which was an alteration, amplification or extension of advice already disclosed. However, that was on the basis that it could fairly be treated as being part of the same advice. The same would be true if the claimant in the present case had later sent an email to his lawyers correcting his earlier account, but that did not justify requiring disclosure of all later communications on the same topic, ie that of threats.