Summary

Where a claimant had waived privilege in certain documents for the purpose of rebutting a suggestion that he had fabricated allegations, the defendant's application for further disclosure on the ground of collateral waiver was refused because the material in respect of which further disclosure was sought was not part of the actual communication in which privilege was waived. Determining the scope of collateral waiver was not a discretionary exercise. In order to achieve consistency of decisions, and therefore predictability, it was necessary to have regard to previous case law and not to the question of what might be regarded as fair.

Facts

The defendant applied for further disclosure by the claimant on the ground of collateral waiver of privileged material.

The claimant alleged that the defendant had made certain threats to him. In cross-examination, it was put to the claimant that he had fabricated some of the allegations. In re-examination, the claimant's counsel put to him a number of emails which he had written to his lawyers in March and April 2012 in order to rebut the suggestion of fabrication. The emails also contained the claimant's instructions on other matters than those specifically put to him in re-examination. It was undisputed that the emails were privileged; that, by putting them to the claimant, his counsel had waived privilege in them on the claimant's behalf; and that the emails were in evidence for all purposes. On the basis of the disclosure of those emails, the defendant applied for further disclosure of other documents, including those containing factual instructions from the claimant which concerned the same events as the emails. According to the defendant, fairness required disclosure of those other communications to the claimant's lawyers about the threats up to April 2012 so that the court had the full picture.

The issue was whether the reliance by the claimant's counsel on the emails had the effect of waiving privilege in other documents.

Held

Scope of waiver - In determining the scope of the waiver, it was first necessary to identify the "transaction" in respect of which the disclosure had been made. That was the actual communication in which privilege was waived, Fulham Leisure Holdings Ltd v Nicholson Graham & Jones [2006] EWHC 158 (Ch) and General Accident Fire & Life Assurance Corp Ltd v Tanter (The Zephyr) [1984] 1 W.L.R. 100 applied. If only part of the material involved in that transaction had been disclosed, further disclosure would be ordered, Fulham applied. In the instant case, the actual communication consisted in the emails of 29 March and 15 to 16 April, not all communications between the claimant and his lawyers on the topics of alleged threats and their consequences. Although the material had obviously been disclosed for the purpose of rebutting the suggestion of recent fabrication by establishing that the claimant had said something similar to his lawyers as long ago as March and April 2012, that purpose did not alter the transaction in question, which remained what the claimant said in those particular emails. The further disclosure sought by the defendant was clearly not part of the material included in that transaction (see paras 16, 23, 35-39 of judgment).

Fairness - Although a party could choose what material to waive privilege in, fairness might require further disclosure if it did choose to waive privilege. Different conclusions might be reached as to what was fair in a particular case. However, determining the scope of collateral waiver was not a discretionary exercise but an objective one. It was therefore safer not to rely on what might be considered fair, but on what had been done in previous cases so as to achieve consistency of decisions, and hence predictability. In Tanter, fairness was not regarded as requiring disclosure of later privileged communications on the same topic. Although that judgment was not binding on the instant court, there was no reason to regard it as wrong and it should therefore be adopted in the instant case. Accordingly, the claimant was not required to disclose the later privileged communications between himself and his lawyers concerning the threats allegedly made up to April 2012. Although in Fulham, disclosure was required of later advice which was an alteration, amplification or extension of advice already disclosed, that was treated as being part of the same advice. That case should not be read in a way that would completely undermine the principle laid down in Tanter that waiver of privilege in one communication waived privilege in that transaction but not in the underlying topics, and did not entail the waiver of later privileged communications on the same topic (paras 41-44, 51-55).

Application refused