The recent Commercial Court decision in PCP Capital Partners LLP and another v Barclays Bank Plc  EWHC 1393 (Comm) has provided insight into the scope of waiver of privilege and the “cherry picking rule”.
The case concerns a claim brought by PCP Capital Partners LLP’s (PCP) against Barclays in relation to its fundraising during the financial crisis in 2008. PCP allege that during the course of negotiations over a proposed investment by PCP, Barclays fraudulently misrepresented that PCP would receive the same consideration for its investment as the state of Qatar and various related entities but that in fact, the Qatari investors received additional funds which were disguised as consideration payable for advisory services under advisory services agreements (the ASAs). The allegations are strenuously denied by Barclays and the case is ongoing.
Prior to the commercial court litigation, the SFO had brought related criminal charges against Barclays and its senior executives. All charges against the bank were dismissed and its executives were acquitted. However, during the course of the criminal proceedings, Barclays provided documents protected by legal professional privilege to the SFO under a limited waiver. Certain of those documents were referred to in open court and lost their privilege; the remaining documents remained privileged.
PCP made an application to the Commercial Court for further disclosure of contemporaneous documents related to the ASAs, which had been withheld by Barclays on grounds of privilege. PCP’s application was made on the basis that:
- There had been a waiver of privilege over legal advice concerning the ASAs which had been referred to in Barclays’ opening submissions and its factual witness evidence; and
- As a result of that waiver, privilege had all been waived over all of the otherwise privileged documents relating to the ASAs.
Waiver by reliance
Waksman J found that there had been a waiver of privilege over the legal advice. Although the witnesses only referred to the effect rather than the content of the advice, their reliance on that advice in order to prove Barclays’ case in relation to the ASAs was key. Statements in Barclays’ opening submissions that lawyers had approved the transactions with the Qatari investors were also deployed for the purposes of showing that the ASAs were legitimate rather than sham transactions. It was this reliance by the witnesses and by Barclays on the legal advice which constituted a waiver of privilege.
The second issue for the Commercial Court was whether there had been collateral waiver of privilege over the remaining privileged documents protected by legal professional privilege. Collateral waiver of privilege – commonly known as the cherry picking rule – prevents a party from deliberately deploying helpful privileged documents and not others. There will be a wider waiver of privilege where there is further privileged material relating to the same issue or transaction and where fairness requires waiver in order to give the court the full picture.
Waksman J found that there had been a collateral waiver of privilege as the relevant transaction was the legal advice in relation to the ASAs. He rejected Barclays’ argument that the cherry picking rule could not apply where the specific documents referred to had previously lost their privilege in the criminal proceedings, prior to the reliance on those documents in the Commercial Court proceedings.
This case acts as a warning that parties and their lawyers must be cautious about referring to legal advice in witness evidence or legal submissions, particularly where that legal advice is relied upon in order to support the relevant party’s case. It also provides a helpful reminder of the potential consequences of collateral waiver and offers additional insight on the scope of the cherry picking rule.