Legal professional privilege allows clients to discuss their legal position with their lawyer in the knowledge that their communications will remain confidential.
However, it is well established that where a party to proceedings uses privileged material to support its case, the ‘cherry picking’ rule – also known as the principle of collateral waiver – means that they risk inadvertently waiving privilege over other documents that may damage their case. A court or tribunal may then require the relevant party to disclose further privileged information, which relates to the same issue.
As part of the high-profile litigation in Clements v Frisby, the High Court held that a litigant waived legal professional privilege by referring to the content of legal advice to advance his case.
Background
Mr Clements, a businessman, brought proceedings against Mr Frisby, the millionaire founder of Salford-based fashion brand In The Style (the Company) in 2020, alleging that the original name and concept of the Company had come from him in early 2013 and that Mr Frisby essentially stole his business idea. He alleged that he engaged Mr Frisby to assist with developing the Company but was led to believe by him that the plans for the Company had no future. He subsequently discovered that Mr Frisby had developed the Company himself through his own business.
Mr Frisby denied that Mr Clements had played any role at all in establishing or developing the Company and stated Mr Clement’s lack of involvement was demonstrated by the fact that he took no steps to pursue a claim against him for several years.
Mr Clements explained in his witness statement that his reason for failing to pursue legal proceedings against the defendant until this point was a result of his solicitors taking time to progress his claim because they had previously advised him that the Company did not appear to be of value and consequently did not present a target worth pursuing.
Mr Frisby then contended that Mr Clement’s reference in his witness statement to his solicitors’ advice that the business did not appear to be worth pursuing would otherwise be privileged and in using that information in court material, Mr Clements had waived privilege.
The Decision
The High Court agreed, finding that the reference in Mr Clement’s witness statement to his solicitors’ advice constituted a collateral waiver of privilege. The judge noted that a waiver cannot arise if the reference is not the effect of the content, but to the legal advice.
However, in this case, the claimant’s witness statement made reference not only to the fact that legal advice had been given, but also fundamentally to the content of the legal advice itself.
It was, therefore, appropriate to order disclosure of the supporting documentation relating to the privileged legal advice given to Mr Clements as the advice was potentially relevant to the substantive merits of the case.
Mr Clement’s claim against Mr Frisby was later dismissed by the High Court on the basis that he was a dishonest and unreliable witness, whose claim was based on a false narrative.
Takeaway
There is a growing body of case law indicating that the English courts are willing to find waivers of privilege where reference to legal advice is made in litigation. Parties should proceed with caution if they are openly relying on privileged material in legal proceedings as it can result in the inadvertent waiver of other documentation.
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