CIVIL PROCEDURE BACK TO BASICS 27: WAIVING LEGAL PROFESSIONAL PRIVILEGE IN A WITNESS STATEMENT

One matter that all litigators must be aware of is that there is a risk of waiving privilege when mentioning legal advice in a witness statement.  This can (and does) happen even when the statement states, expressly, that the maker is not waiving privilege.  Mentioning legal advice in a witness statement gives rise to very real dangers.

 

IT DOESN’T MATTER THAT YOU SAY YOU ARE NOT WAIVING PRIVILEGE

In  Commodities Research Unit International (Holdings) Ltd -v- King and Wood Mallesons LLP [2016] EWHC 63 (QB) Mr Justice Nicol observed:

iii) A statement of Geoff Barber dated 23rd December 2015. Mr Barber is the Chief Financial Officer of the CRU group of companies. He says that the underlying proceedings caused substantial additional work for himself and members of the CRU group. He then exhibits a schedule which sets out in considerable detail contacts between Norton Rose and the Claimants over the course of the underlying proceedings. Mr Barber claims that in doing so he is not waiving privilege.”

WAIVING LEGAL ADVICE PRIVILEGE

“legal advice privilege and litigation privilege can be waived by a client. Whether there has been waiver is determined by the parties’ conduct and Mr Davidson, on the Claimants’ behalf, rightly did not suggest that he could, in the present circumstances, rely on the statements of Mr Barber and Mr Perlman in their witness statements to the effect that they were not waiving privilege – to some extent they clearly had. The extent to which privilege had been waived was for the Court to determine. A client could not ‘cherry pick’ i.e. be selective and waive privilege in relation to one part of a document (or series of documents on the same topic) while maintaining it in relation to other parts of the same document or same series. On the other hand, if there were severable parts of the document or if there were severable issues in the exchanges with legal advisers, privilege waived in relation to one of those parts or one of those issues, did not mean it was waived as well for the others. Finally, not everything in a lawyer’s records was covered by either legal advice or litigation privilege. Thus, for instance, the date and time of a meeting with a lawyer would not be privileged. Correspondingly, 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 the contents of that meeting or communication were sought to be deployed.”

DISCLOSURE ORDERED

The judge went on to order to disclosure.

 

  • Mr Porter argues that Mr Barber has referred in the schedule to his witness statement to a great many communications to and from Norton Rose. The Defendants are now entitled to see copies of those documents pursuant to CPR r.31.14. Because they have been mentioned in his witness statement, privilege in them has been waived.
  • Mr Davidson argues that Mr Barber has referred to these matters simply to fix the dates on which he or his colleagues were engaged in the underlying proceedings and in order to elaborate on the Claimants’ claim for lost management time as a result of that litigation. He refers to R v Manchester Crown Court ex parte Rogers [1999] 1 WLR 832 DC in which Lord Bingham observed that a lawyer’s record of the date and time at which he saw a client was not privileged. Mr Davidson submits that Mr Barber was alluding to these matters only for that limited purpose. There was no waiver of privilege. Privilege continued to protect the underlying documents from disclosure.
  • In my judgment, Mr Porter is right to submit that Mr Barber is not confining his allusion to these documents to that limited purpose. He is deploying them to justify the detailed expenditure of management time. The Defendants have put the Claimants to strict proof of this part of their claim and so this is an issue in the proceedings. Mr Davidson argued that it was obvious that heavy commercial litigation would involve considerable amount of management time. That may be, but the Claimants have chosen not simply to rely on such a bald proposition. Instead, they have provided Mr Barber’s detailed witness statement. The consequence seems to me that privilege has been waived in the documents to which Mr Barber refers. In the circumstances, disclosure is necessary for the fair disposal of the present proceedings and would not be disproportionate. The Defendants are entitled to inspect them.
  • There may be a degree of overlap between the two parts of the Defendants’ second application. They are, though, advanced as independent reasons for disclosure. Thus, to the extent that the documents to which Mr Barber refers in his schedule concern earlier advices on settlement from either Norton Rose or Mr Glick, they must be disclosed because the Defendants have succeeded on this second part of their application, even though in relation to the first part, they have not obtained an order for disclosure of more than Mr Davidson was willing to concede.

ANOTHER EXAMPLE

The decision of Males J in Mid-East Sales -v- Engineering & Trading Co [2014] EWHC 892 (Comm)  concerned a case where the defendant had returned the claim form after service. In a witness statement made in support of an application to set aside judgment it was stated that the decision to return the claim form was done on legal advice.  The question arose whether that advice should now be disclosed.

THE JUDGMENT ON WAIVER OF PRIVILEGE

“Ruling on claimant’s application for disclosure of legal advice
13 This is an application for disclosure of legal advice given by either a firm of
solicitors called IA Solicitors or a Mr. Ahmed, who was at one time a member
of that firm. It appears that at the time when the advice was given the firm had
been disbanded and therefore Mr. Ahmed was the person who was acting.
14 The issue is whether privilege in the documents has been waived. Although
the application relates to advice received by the second defendant from IA
Solicitors and/or Mr. Iftikhar Ahmed during the entire lengthy period of this
litigation, in my judgment that is too widely framed. The only advice which
has been referred to in the evidence concerns to the second defendant’s
response to service of the claim form and related documents on it in 2009.
15 The law on waiver of privilege is conveniently set out in chapter 23 of
Hollander on Documentary Evidence, where the author notes that there is a 
distinction to be drawn between (a) a reference to the fact of legal advice and 
(b) reliance on the content of that advice. That distinction reflects a policy not 
to hold that there has been a waiver without good reason and to confine cases 
of waiver to cases where the party said to have waived is relying on the content 
of the legal advice for some purpose. Sometimes the distinction is drawn 
between reference to legal advice and deployment of it. The overriding 
principle is one of fairness, that if the content of legal advice is deployed or 
relied upon in order to advance a party’s case, then fairness may require that 
disclosure of that advice be made available so that the court can properly assess 
that assertion.
16 In the present case the legal advice which is said to have been given has been
referred to in the context of the question of delay by the second defendant in
responding to the service of the claim form. It appears to be relevant to the
question whether, if other conditions are satisfied, the court should exercise its
discretion to set aside the default judgment which has been obtained. The
principally relevant evidence is given by Mr. Zahid Mumtaz Piracha in two
witness statements served on behalf of the second defendant. He is a Pakistani
advocate employed by Dr. AQ Khan Research Laboratories (known in the
proceedings as KRL). At p.227 of the bundle, para.27 and following of his
witness statement, he describes what happened when the claim form was
served on the second defendants. He says that having obtained advice from
Mr. Iftikhar Ahmed of IA Solicitors, in which he liaised directly with Mr.
Ahmed, the claim form and enclosures were returned to the British High
Commission. He says at para.29:
“Acting on the advice of IA Solicitors, the claim form and enclosures
were returned to the British High Commission on 27th March 2009 by
the Minister of Law on the basis of Article 13 of the Hague
Convention”.
He then sets out the letter pursuant to which that was done.
17 In his second witness statement, dated 26th February 2014, he goes into further
detail, responding to the eighth witness statement of Mr. Dudley for the
claimant. He says at para.7:
“In addition, the thrust of Dudley 8 is that the second defendants’
conduct was premised on incorrect legal advice from IA Solicitors.
Again I will address this point and demonstrate that it was as a result of
IA Solicitor’s advice that the second defendant took the steps it did in
responding to the claim form”.
18 It seems to me that those two statements, taken together, do cross the line from
reference to deployment. They make a case that the second defendant was
acting on legal advice in responding to the claim form in the way that it did.
That can only be relevant because the second defendant seeks to rely on that as
a factor going to the exercise of the court’s discretion. I can see no other reason
why the reference to acting on legal advice should have been included in the
witness statement. Now that the second defendant has invited the court to
exercise its discretion on the basis that it was acting on legal advice, it may be
highly relevant to know what that advice was. To take two extreme examples,
it is at least possible that the court’s discretion would be exercised very
differently according to whether the legal advice in question was (a) that the
proceedings had not been validly served as a matter of English law so that any
judgment would be invalid or (b) that even though they had been validly
served, any judgment against the second defendant could safely be ignored
because it could not be enforced.
19 At para.15 of the second statement, Mr. Piracha explains not what the advice
was but in what documents the advice was provided. He says:
“Shortly after service of the claim form, on 6th March 2009 I was
provided by IA Solicitors with written communications on 17th and 24th
March 2009. Having considered those communications, I requested the
second defendant’s Ministry of Law and Justice to respond to the claim
form”.
It seems clear, therefore, that that is the advice to which he was referring in the
earlier passages which I have set out. He goes on to say that the response of
27th March 2009 by the second defendants was made in good faith having
taken legal advice.
20 In my judgment, therefore, there has been a waiver of privilege in those two 
written communications and fairness does require that the claimants and the 
court should have the opportunity to see those communications so that the 
evidence about them which has been given can be fairly assessed. Mr. Layton
made the point that those were documents in KRL’s possession rather than the
possession of the second defendant, which is the Islamic Republic of Pakistan,
but he ultimately accepted that they were nevertheless under the control of the
second defendant and, in any event, in my judgment, there should be an order
for their disclosure.”