Purpose, not labelling is key to determining whether privilege has been waived

England & Wales

The High Court has held that using the phrase “without waiving privilege” before referring to a privileged document is not effective to preserve privilege. Rather, the court must consider the purpose of referring to the document. If the court decides that privilege has been waived, it must then consider what scope of disclosure is required in order to avoid giving a misleading impression to other parties and to the court.

Background

In Guest Supplies Intl Ltd v South Place Hotel Ltd [2020] EWHC 3307 (QB), it was common ground that the parties had entered into an oral contract, but there was a dispute as to the terms of that contract and as to whether those terms were ever reduced to writing. The particulars of claim attached what was said to be a set of written terms signed by the parties a few months after the oral agreement. In the course of the proceedings, it emerged that the document was in fact not contemporaneous, but had been created approximately six months before proceedings were issued.

A director of Guest Supplies, who had been responsible for instructing the company’s solicitors, gave evidence to the effect that the document was his reconstruction of an electronic original, which had been lost as a result of the theft of the computer on which it was stored. The director’s witness statement read, in part,

“Without waiving privilege, I recreated the final version of the agreement as it would have been and sent this to my former solicitor to give him an accurate version of what the final agreement would have looked like. It was never said by me (to my former solicitors or the Court) that this was the actual final version of the agreement and, if this is how it is reflected in the particulars of claim by my former solicitors, I can only apologise.”

South Place Hotel applied for specific disclosure of all communications between the director and the former solicitors as to the creation, provenance and/or authenticity of the document.

Waiver

Murray J noted that the words “without waiving privilege” did not affect the position as to whether or not there was in fact a waiver. That question had to be judged by the court as an objective question of law, based on the surrounding context. The key issue to be determined by the court was what was being substantively asserted about the privileged communications and for what purpose. It did not matter whether the form of the assertion was positive or negative (as, for example, in the case of the assertion that the director did not hold out the document as being the signed version of the agreement.)

On the facts, the court held that the director was relying on privileged correspondence with the solicitors to bolster the credibility of his account of the document’s provenance and, by implication, also the credibility of his account of the creation of the original agreement. This went to the heart of a key issue in the case and was therefore sufficient to waive privilege.

Scope of disclosure

As to the scope of the required disclosure, the court held that generally, all communications on the same “topic” would be disclosable. In this case, it would not be sufficient for Guest Services to disclose only the communication by which the document was sent to the solicitors. If there were any other communications – for instance, follow-up questions from the solicitors as to the nature of the document – then not disclosing those communications would give a misleading impression. The request for communications relevant to the “creation, provenance and/or authenticity” of the document was therefore appropriate, and an order would be made in those terms.

Comment

This case takes essentially the same approach to determining waiver and scope of disclosure as the recent cases of PCP Capital Partners v Barclays Bank [2020] EWHC 1393 (Comm) and PJSC Tatneft v Bogolyubov, Kolomoisky & Ors [2020] EWHC 3225 (Comm), suggesting that a judicial consensus has now been achieved on this point. The overarching message is that, before relying on a privileged communication, parties should carefully consider the intended purpose of that reliance and weigh the benefits against the risk of having to disclose all other privileged communications on the same topic.

The judgment of Murray J also highlights that whether or not a waiver has occurred is judged by the objective circumstances and not by the parties’ subjective intentions. Stating that privilege is not waived will not be enough to preserve privilege if the surrounding circumstances show that a party is relying on the privileged communication to bolster its substantive case.