Asserting what you did not discuss with your solicitor may waive privilege over what you did discuss

What the solicitors were not told

In Guest Supplies v South Place Hotel Ltd a director of the claimant said in a witness statement that an agreement, which was central to the dispute, no longer existed in its original form. He also said that (“without waiving privilege”) he had never told his solicitors that the version of the agreement he had sent them was the original version. The defendant argued that this negative assertion (ie on what he had not said to his solicitors) constituted a waiver of privilege in relation to everything the claimant did in fact say to its solicitors about the “creation, provenance and/or authenticity” of the agreement.

Test for waiver in PCP Capital Partners v Barclays Bank

The court approached the question in much the same way it would have done for a positive assertion. It followed the pragmatic approach taken in PCP Capital Partners v Barclays Bank Plc [2020] EWHC 1393 (Comm):

• There must be sufficient reference to the privileged communication.
• That communication must be relied on to support the party’s case.
• If a waiver is established, it will encompass all privileged documents falling within the scope of the relevant “transaction”. The identification of that transaction should be approached realistically, guided by the principle of fairness and avoiding artificially narrow or wide outcomes.

Effect of “without waiving privilege” wording

Whether the claimant had waived privilege was to be assessed objectively. Therefore the words “without waiving privilege” did not prevent privilege being waived.

Privilege waived over communications between client and solicitor

The court held that the director’s negative assertion resulted in privilege being waived over all communications between the claimant and its solicitors relating to the “creation, provenance and/or authenticity” of the agreement.

The reference to the communications (including non-communications) was more than a mere “narrative reference”. The director was clearly relying on the communications to demonstrate that he never suggested that the agreement was the original version. The authenticity and terms of the original agreement went to the very heart of the case. Fairness therefore required that the scope of the “transaction” must encompass all communications between the claimant and its former solicitors on the provenance of the agreement.

Privilege reference must be voluntary in order to waive privilege

Similarly in PJSC Tatneft v Bogolyubov, the second defendant argued (amongst other things) that the claimant had waived privilege as a result of a negative assertion that certain matters regarding an arbitration were not discussed by its lawyers. The claimant’s denial was made in response to an assertion by the defendant that these matters were in fact discussed.

The court again draw heavily on PCP Capital Partners v Barclays Bank Plc, with particular focus on the reason why the assertion was made. The court was clear that waiver can only occur where a party voluntarily makes sufficient reference to a privileged communication (including a negative assertion) so as to advance an issue in its case. Waiver does not occur where a party is merely responding to an assertion that a matter was discussed and denying it. The requisite voluntary disclosure does not exist.

On the facts of this case, the claimant had made its negative assertion in response to an assertion by the defendant that a matter was discussed. The claimant was not seeking to advance a positive case and there was therefore no waiver.

Comment

The court’s continued pragmatic approach to waiver is to be welcomed. PCP Capital Partners v Barclays Bank Plc cut through the difficulties of the content/effect distinction and these latest authorities apply the same practical approach to negative assertions. If a party is seeking to advance its case by making assertions as to privileged communications (including negative propositions) that party does so at the risk that privilege is likely to be waived.

Further information

This case summary is part of the Allen & Overy Litigation and Dispute Resolution Review, a monthly publication. If you wish to receive this publication, please contact Amy Edwards, amy.edwards@allenovery.com