Collateral waiver of privilege: High Court finds disclosure of chronology prepared by lawyer results in broader waiver

The High Court has held that a claimant's waiver of privilege over a chronology prepared by his lawyer resulted in a collateral waiver of privilege in an updated version of the chronology and any documents recording the claimant's instructions to the lawyer in relation to the contents of the chronology. The purpose of the waiver was to demonstrate consistency between the claimant's case at the time the chronology was prepared and his currently pleaded case, in order to meet the defendant's contention that his account of events had changed over the intervening period. Accordingly, the court held, there was a risk of a misleading impression being created unless the different versions, and associated instructions, were disclosed: Gorbachev v Guriev [2024] EWHC 622 (Comm).

The decision illustrates that the application of the collateral waiver principle, or "cherry picking" rule, depends on the purpose of the waiver and is highly fact sensitive. The court referred to Holyoake v Candy [2017] EWHC 387 (Ch) (considered here), in which the court held there was no broader waiver where a claimant had waived privilege in certain emails to rebut a suggestion of recent fabrication. In that case, the court said, the issue was not whether the claimant's case was consistent throughout, but merely whether he had recently made up the allegations in question.

As ever, the practical message is that privilege should not be waived lightly and without thinking through the risks as to how far a waiver might be found to extend.

Helpfully, however, the court in this case did confirm that (as the defendant accepted) if the documents covered by the collateral waiver contained privileged material that was irrelevant to the issue for which privilege had been waived, appropriate redactions could be made.

Background 

The underlying dispute relates to the parties' interests in a valuable fertiliser business based in Russia. The present decision relates to the defendant's application for an order determining the extent of the claimant's waiver of privilege over communications with his legal advisors.

The claimant waived privilege in a draft chronology that was prepared on his instructions by a barrister the claimant had instructed, Mr Fitzgerald, and was provided to the claimant's then solicitors on 30 January 2013. The claimant submitted witness evidence from his current solicitor explaining that the purpose of the waiver was to meet the defendant's contention that the claimant's account of events had changed since the outset of his case. In other words, he wished to demonstrate that his instructions to Mr Fitzgerald in late 2012 and early 2013, which culminated in the production of the chronology, were consistent with his case as now formulated.

It was accepted that a meeting took place between the claimant, Mr Fitzgerald and the solicitors on 1 February 2013, and that the draft chronology was updated by Mr Fitzgerald and a revised version circulated on 5 February 2013. It was not suggested that the chronology was further amended after that date.

The defendant sought a declaration that, by waiving privilege in the initial draft chronology, the claimant had waived privilege in relation to all factual instructions he had provided to Mr Fitzgerald in relation to his case against the defendant.

Decision

The High Court (HHJ Pelling KC sitting as a High Court judge) held that the claimant had waived privilege in the revised version of the chronology and in any documents evidencing the claimant's instructions regarding the contents of the chronology.

The judge noted that the principles relating to collateral waiver are now relatively well established. The court must first identify the issue to which the material over which privilege was initially waived is relevant, and the whole of the material relevant to that issue must be disclosed. Sometimes further material will also have to be disclosed, if fairness requires it. The application of this principle will be very fact sensitive.

In the present case, the issue to which the chronology was said to be relevant was whether the claimant's account of the facts had changed since the outset of his case. The purpose of the waiver was to demonstrate consistency between his case at the time and his pleaded case now.

The judge rejected the claimant's submission that the updated chronology did not have to be disclosed because the initial chronology was only intended to provide a snapshot in time, the updating of the chronology was a separate process, and the claimant did not rely on the updated version. This approach was "entirely mistaken" once it was accepted that the purpose of the waiver was to demonstrate consistency with the currently pleaded case. It was "close to obvious" that if the claimant gave instructions for the material alteration of the chronology, then it could not be considered as anything more than a developing draft, and disclosing just the earlier draft carried the risk of creating a misleading impression.

For the same reason, any documents which contained, recorded or otherwise evidenced the claimant's instructions regarding the contents of the initial and revised chronology must also be disclosed - including any documents that corrected the updated version circulated on 5 February 2013.

The defendant accepted that, to the extent any such documents contained privileged material that was not relevant to the issue in question, they should be redacted.