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Can reference to client-solicitor communications in a witness statement constitute waiver of privilege?

January 28, 2021

In Guest Supplies Intl Ltd v South Place Hotel Ltd and another [2020] EWHC 307 (QB), the High Court held that communications with one’s solicitor, referenced in a witness statement, can constitute a waiver of legal professional privilege notwithstanding any express denial of waiver. This decision has echoed the Court’s approach in PCP Capital Partners v Barclays Bank [2020] EWHC 1393 (Comm), suggesting that judicial consensus has been reached on the waiver of privilege when relying on legal communications in litigation.

Factual Background

The case involved a contractual dispute between Guest Supplies Intl Limited (the Claimant) and South Place Hotel Limited and D&D London Limited (the Defendants). It was agreed by the parties that an oral contract had been entered into in 2016, but the terms of this contract were under dispute. The Claimant alleged that the contract contained an exclusivity agreement that had been breached by the Defendants. The Particulars of Claim included a written contract that had been allegedly agreed to and signed by the parties in 2016, documenting the exclusivity agreement. The Defendants contested the existence of such a document. The Claimant’s sole director responded by filing a witness statement clarifying that the written contract created in 2016 had been stolen and so a new contract mirroring the terms of the original contract was reconstructed in 2019. The director stated “without waiving privilege” that he had sent the reconstructed contract to his former solicitor to “give him an accurate version of what the final agreement would have looked like” and at no point did he say it was the actual final copy of the agreement.   

The Defendants applied for specific disclosure of all correspondence between the Claimant and its former solicitor relating to the 2019 document. They maintained that the Claimant’s director had waived privilege to such communications, by referring to it in his witness statement.

Waiver of Privilege

Murray J referred to the guidance set out by Waksman J in PCP Capital Partners to consider whether there had been a waiver of privilege. He looked at the traditional distinction in the context of waiver, between reliance on the document’s effects (not amounting to a waiver) and reliance on the document’s contents (potentially amounting to a waiver). In making the effects/contents distinction, the court considered (i) whether any reliance was placed on the privileged material to which reference had been made; (ii) what the purpose of that reliance was; and (iii) the particular context of the case in question. On the facts, it was found that a waiver of privilege had arisen when the director relied on privileged communications to strengthen his argument relating to the central dispute in the case, namely the existence of the exclusivity agreement.

Scope of Waiver

The Court’s decision was guided by the principle of fairness when considering the scope of the waiver. Specific disclosure was ordered on all correspondence between the Claimant and its former solicitors relating to the “creation, provenance and/or authenticity” of the 2019 document. Further, the Claimant was denied the right to “cherry-pick” or selectively disclose material that could mislead or prevent the Defendants from seeing the full picture.

Key Takeaway

The High Court has taken a firm approach on waiver of privilege. Inclusion of the phrase “without waiving privilege” is not sufficient to preserve privilege where a party is relying on privileged communications to strengthen its case. The key takeaway is that parties and their litigants ought to take a cautious approach before deciding to reference any privileged communication in witness statements. 

With thanks to Ramzia Khulmi for her work on this article.