Case Digest: Clements v Frisby [2022] EWHC 3124 (Ch)

March 23, 2023

Case details

The later decision at trial in this matter is summarised in this article and the judgment found on Bailii here.

Outcome

The court found the Claimant to have waived privilege in relation to legal advice which had been referred to in a witness statement filed at court and which had been relied upon by him in response to the Defendant’s argument on delay.

Summary

The question decided by the court in this case was whether, by the Claimant revealing in a witness statement that his solicitors “took time to make progress with my claim, primarily because they felt that the business Fashion did not look at all valuable and did not appear to present a target worth pursuing“, he could be said to have waived privilege in relation to the advice given to him, such that it was appropriate to order disclosure of supporting documentation relating to the subject matter of the waiver.

This decision provides a useful reminder of the principles that apply when considering whether a reference to a privileged communication results in a waiver, and if so, the extent of that waiver. It also analyses the key authorities on this important issue, including PCP Capital Partners LLP v Barclays Bank Plc [2020] EWHC 1393 and PJSC Taftnet v Bogolyubov [2020] EWHC 3225.

This case also illustrates the exercise which the court will embark upon when assessing whether the reference to legal advice in a witness statement is sufficient to constitute a waiver. This is often a difficult task, raising many challenging issues, including as had been earlier explained by Waksman J in PCP Capital Partners LLP v Barclays Bank Plc [2020] EWHC 1393 (Comm) at [50]: “the vexed question which still confounds the law of privilege, namely the idea that, quite apart from reliance, waiver cannot arise if the reference is to the “effect” of the legal advice as opposed to its “contents”.

Background

The Claimant’s case was that in early 2013 he developed a business idea relating to the female retail fashion market, and that he was introduced to the Defendant by a third party who the Claimant engaged in a task of testing and activating the Business Plan. The Claimant said that he had invested money in the proposed venture, and provided the business plan to the Defendant in confidence, including the business name and other commercial information.

Conversely, the Defendant’s case was that he developed the business idea independently of the Claimant, and that he was approached by the Claimant regarding a potential investment of £10,000, that he was not interested in. The Defendant said that he did not discuss the business in any meaningful detail with the Claimant.

The subject business was incorporated and the company was admitted to the Alternative Investment Market on 15 March 2021. It realised substantial sums for the company’s shareholders (which included the Defendant), and seemingly paved the way for these proceedings.

The Claimant sought a declaration that the Defendant held his interest in the business on trust for him. The Defendant denied that the Claimant was entitled to the relief sought, and said that the Claimant’s lack of contribution or involvement in the business in which he purported to have a share was evidenced by the fact that he had been slow to progress the claim and had, on the face of it, not taken any steps to the pursue the claim for a number of years.

As above, in response to the latter point, the Claimant had filed a witness statement in which he asserted that the solicitors he had instructed in the claim ‘took time to make progress with my claim, primarily because they felt that the business Fashion did not look at all valuable and did not appear to present a target worth pursuing’.

At the Pre-Trial Review the court considered the Defendant’s application which sought, pursuant to CPR PD57AD.17.1 and/or 18.2, an order for the Claimant to provide a revised Disclosure Certificate and to comply with an Extended Disclosure Order dated 30 June 2022 by providing disclosure of privileged material and/or for specific disclosure of material relating to the advice referred to in the witness statement.

Decision

The court ordered disclosure of documents relating to the transaction in question, and cited its jurisdiction to make the order sought pursuant to paragraphs 17 and 18 of CPR PD 57AD (see [30-32], [80-82]).

In doing so, at [34] the learned Judge found that the principles summarised by Waksman J in PCP Capital Partners LLP v Barclays Bank Plc [2020] EWHC 1393 (Comm) at [45] were engaged, and which include the following:

“(4) Applications for documents based on a waiver of privilege entail at least the two following fundamental questions:

  • Has there been a waiver of privilege?
  • If so, is it appropriate to order production of privileged documents other than those to which reference has been made which was the foundation for the waiver?

(5)  The concept of fairness underpins the rationale for having a concept of waiver which can then entail the production of further privileged documents. This is because if the party waiving is, by the waiver thereby creating a partial picture only of the relevant legal advice, it is unfair to the other party to allow him to “cherry pick” in this way.

(6)  That said, it is also clear that the question of whether or not there has been a waiver is not to be decided simply by an appeal to broad considerations of fairness”

Whilst prepared to make an order for disclosure on the basis that he was satisfied that there had been a waiver of privilege by the reference to legal advice in a witness statement, and the use of that advice to justify the position taken by the Claimant in the proceedings, the Judge also found that the ‘transaction’ to which the waiver applied was limited. The learned Judge therefore declined to make a broader order for disclosure as had been sought by the Defendant.

The reason for this, as explained at paragraph 78 of the judgment, was that an extended order for disclosure as sought by the Defendant would ‘give (him) a largely speculative advantage rather than a principled one’.

What are the implications?

As described by the learned Judge at paragraph 23 of his judgment: “The central issue that arises for determination is as to whether, in saying what he did in paragraph 45 of his witness statement, and in particular by the words used in the first sentence of paragraph 45 thereof, the Claimant has waived privilege in respect of advice or other documentation relating to DBF taking time to make progress with the Claimant’s claim and, if so, as to the extent or scope of that waiver”.

In this case, there was a clear reference in the Claimant’s witness statement to the feeling of his solicitors that the ‘business did not look at all valuable and did not appear to present a target worth pursuing’ and which went further than was present in other cases where no waiver was found, and which meant that ‘the line has been crossed such that there has been a waiver of privilege’ [66].

The learned Judge therefore acceded to the Defendant’s application in part, and his decision serves as a reminder of the potential pitfalls of referring to legal advice in witness statements, and using that advice as a tool to justify a response to an argument raised by the opponent.

As practitioners will know, the mere fact that legal advice is generally privileged does not mean that it can be deployed in proceedings, particularly in witness statements, without the risk of the opponent obtaining an order for disclosure of documents and information which may reveal further details as to the advice allegedly received by a party.

However, the decision also illustrates that any disclosure is likely to be limited to the ‘transaction’ which is the specific focus of the advice, and the mere reference in a witness statement to legal advice will not automatically open the door for blanket disclosure of all professional legal advice received by a party on an issue, or the case generally.

This judgment also provides a helpful summary of the law relating to waiver of privilege, at [33-57].

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