High Court finds reference to legal advice in witness statement engaged cherry-picking rule

The High Court has held that there was a collateral waiver of privilege where a claimant referred to the time taken by his solicitors in progressing his claim against the defendant, and the reasons for that, to explain his delay - a point which was potentially relevant to the substantive merits of the case: Clements v Frisby [2022] EWHC 3124 (Ch).

The principle of collateral waiver, also known as the cherry picking rule, means that a party who relies on privileged material to support its claim may be required to disclose other privileged material relating to the same issue or transaction. The principle is designed to avoid unfairness, and the risk of the opponent and the court being misled.

The decision illustrates the court's continued move away from the distinction between reliance on the "contents" of a privileged communication and its "effect" - where the former, but not the latter, was thought to give rise to the risk of waiver. In the present case, having reviewed the authorities, the judge rejected the idea that a reference to the subject matter of a privileged communication, as opposed to details of its contents, is unlikely to be viewed as a waiver.

The question of whether the collateral waiver principle has been engaged is a fact sensitive one as to whether there has been reliance on a privileged communication to advance the party's case on an issue the court has to decide. As a practical matter, therefore, parties should be cautious in relying on any privileged material in legal proceedings, as the waiver may be held to extend further than intended.

Background

The underlying claim relates to an online fashion retail business operated by "In The Style Fashion Limited" (the "Company"), which was developed by the defendant. The claimant asserts (in essence) that in doing so the defendant stole the claimant's business idea, which the claimant had intended to exploit through his own company. The claimant sought a declaration that the defendant held his interest in the Company on trust for the claimant, together with an account of profits, equitable compensation, and damages for breach of contract and/or confidence and for deceit.

The defendant asserted that the claim was entirely fraudulent, and pointed to the fact that the claimant did nothing to pursue any claim for a number of years (when the Company had been operating since 2013).

In the claimant's witness statement, he said he only discovered that the defendant had incorporated the Company and carried on the "In the Style" business in 2016. The witness statement then went on to state as follows:

"44. After finding this information out, I took advice from various of my business contacts which led me to consult with several law firms during 2017. ... Eventually... I engaged David Blank Furniss ("DBF") in or around June 2019 who appeared better placed to advise.

45. DBF then took time to make progress with my claim, primarily because they felt that the business Fashion did not look at all valuable and did not appear to present a target worth pursuing. Nevertheless, a letter of claim was produced and dated 22 December 2020...." [Emphasis in the judgment]

The defendant argued that in these passages, in particular the words shown in bold, the claimant was really saying that DBF advised him that the business did not appear worth pursuing, and was relying on that advice to explain and justify his delay of 18 months in pursuing his claim. Accordingly, he had deployed in court material which would otherwise be privileged and, in doing so, had waived privilege. That meant he was obliged to disclose the advice referred to and (since he was not entitled to cherry pick) any other material relevant to why DBF took time to make progress with the claim.

The claimant argued that privilege had not been waived as what was said was mere narrative, and mere reference to the fact of legal advice or what DBF considered the position to be, and there was no reliance on the contents of the advice.

Decision

The High Court (HHJ Cawson KC sitting as a High Court judge) found that privilege had been waived. However, that the scope of the waiver should be limited to material relating to the contention in the witness statement that DBF felt that the business Fashion did not look at all valuable and did not appear to present a target worth pursuing and that this was a reason why DBF took time to make progress with his claim. In other words, it did not extend to other material relating to any other reasons why the claimant did not pursue the claim earlier.

Whether there was a waiver

Having reviewed the relevant authorities, including PCP Capital Partners LLP v Barclays Bank Plc [2020] EWHC 1393 (Comm) (considered here) and PJSC Tatneft v Bogolyubov [2020] EWHC 3225 (Comm) (considered here), the judge said it is not the case that a reference to the subject matter of a privileged communication, as opposed to details of its contents, can never be viewed as having resulted in the waiver of privilege in respect of the communication, or even that it is unlikely to be so viewed.

"Rather, the question is whether there had been reliance on the communication in order to advance the party's case on an issue that the court had to decide, and not just a reference to describe the purpose and effect of the communication. This is a fact sensitive exercise, and where a party choses to put forward a positive case in reliance on a privileged communication, there could be a waiver of privilege."

In the present case, the judge considered there had been a clear reference in the witness statement to content, namely the specific reference to DBF feeling that the business Fashion did not look at all valuable and did not appear to present a target worth pursuing. That content was specifically deployed to provide a reason why DBF took time to make progress, and therefore an explanation for the claimant's apparent inactivity.

It was also significant that in the present case the claimant continued to rely on the matters referred to in the witness statement. This contrasted with Marubeni v Alafouzos [1986] WL 408062 in which the Court of Appeal found there was no waiver where a party referred to legal advice in the context of an ex parte application, to comply with its duty of full and frank disclosure, and had no continuing need to rely on that reference as the claim proceeded.

The judge drew an analogy with Mid-East Sales v United Engineering [2014] EWHC 892, in which the court held there was a waiver where the claimant referred to solicitors' advice in order to explain its delay serving the claim form.

Scope of the waiver

The judge said he found of particular assistance the Court of Appeal's endorsement of the observation by Mann J in Fulham Leisure Holdings Ltd v Nicholson Graham & Jones [2006] EWHC 158 (Ch) that the court's essential task was to identify the transaction in respect of which disclosure was made, and then ask whether that was part of some bigger picture such that fairness, and the need not to mislead, required further disclosure.

In the present case, the judge held that the relevant "transaction" was the correspondence and other documentation regarding DBF's feeling that the business Fashion did not look at all valuable and did not appear to present a target worth pursuing, and that this was a reason for the claim not being progressed.

The judge rejected the defendant's argument that the waiver should extend further, to encompass all correspondence/documentation in which DBF advised that the claimant should not pursue the claim, for whatever reason, or more generally recording other reasons for the lack of progress. Although it might be said that the reference relied on was part of a bigger picture involving other reasons for the lack of progress, the claimant had not relied on any other reasons in support of his case. Therefore, it was difficult to see that further disclosure in relation to such reasons would be required to prevent the defendant or the court being misled.