Collateral waiver: not as wide as you might think

In this interim application, the defendants sought disclosure of privileged communications from the claimants on the basis of collateral waiver.

The principle of collateral waiver requires a party to disclose further privileged material where that material relates to the same “transaction” (or “issue”) for which the party has already deployed privileged material in the legal proceedings. It means that if you decide to use privileged material in litigation, you may be required to disclose further privileged material which relates to the same “transaction” so as not to give the court a misleading picture. This principle is also known as the rule against “cherry-picking”.

There are two important limitations to this rule which are sometimes overlooked:

− the principle is not engaged unless a party seeks to deploy (or rely on) its privileged material in legal proceedings; and
− collateral waiver only attaches to other privilege communications of that party if they are relevant to the same “transaction” for which the original privileged material was deployed.

Privileged material used to rebut allegation of fabrication

The first claimant, Mr Holyoake, alleged that the defendants had used threatening behaviour against him.
In the course of cross-examination, counsel for the defendants suggested that Mr Holyoake had fabricated these allegations. As evidence of this, counsel put to Mr Holyoake that there was no email between Mr Holyoake and his lawyers recording this sort of behaviour.

On re-examination, in order to rebut this suggestion, counsel for Mr Holyoake referred to a number of emails he wrote to his lawyers which referred to the alleged threats (the original emails). The parties agreed that privilege in these original emails had been waived by virtue of this re-examination.

Application for disclosure of more privileged material

On the back of this waiver of privilege, the defendants applied for the disclosure of further privileged emails between Mr Holyoake and his lawyers relating to the alleged threatening behaviour, on the basis that privilege in them had also been waived, under the principle of collateral waiver. The defendants argued that such waiver had occurred because either the further emails had been: (a) referenced in the original emails; (b) concerned the same threats as referenced in the original emails; or (c) concerned alleged threats after the date of the original emails.

Emails had been deployed

Nugee J held that the claimants had deployed the original emails in the legal proceedings. This was an important first finding, as, without deployment, the principle of collateral waiver could not apply.

Extent of the “transaction”

Nugee J then sought to identify the “transaction” to which the original emails had been deployed. Collateral waiver will only apply to further privileged material relating to that same “transaction.” He followed a two stage process.

Stage one: identify the “transaction”

The “transaction” may be easily identifiable from the nature of the disclosure (eg the particular advice given by counsel on a single occasion). However, it may be apparent from that disclosure, other available material or the purpose of the initial deployment, that the “transaction” is wider than that which is immediately apparent. Whether immediately apparent or not, the privileged communications relating to the whole of the relevant “transaction” must be disclosed.

Stage two: disclosure necessary to avoid unfairness or misunderstanding

In addition, further disclosure may be needed to avoid unfairness or misunderstanding of the deployed privileged communications. Fairness does not generally require the disclosure of later privileged communications on the same “transaction”.¹ The occasions where such later communications have been disclosed were because they were alterations, amplifications or extensions of earlier communications already deployed.

Applying this two-stage process to the facts of this case, Nugee J held that the “transaction” for which the original emails were disclosed was the particular communication Mr Holyoake made in the original emails. It did not extend to all communications between the claimants and their lawyers on the topics of the alleged threats. The purpose of the deployment of the original emails did not widen the scope of this “transaction”. They were disclosed to rebut the suggestion of recent fabrication by establishing that Mr Holyoake said something similar a while ago. The “transaction” in question therefore remained just the original emails. At this first stage therefore, Nugee J held that the only additional privileged communications to be disclosed were those incorporated in the original emails by reference. As a result, he held that a file note made by Mr Holyoake’s lawyers and expressly referenced in one of the original emails should be disclosed.

In relation to the second stage and whether there should be any further disclosure to avoid unfairness, he ruled not. Following earlier case law, he held that fairness did not require the disclosure of later privileged communications between Mr Holyoake and his lawyers concerning the alleged threats.

COMMENT
The certainty and confines Nugee J seeks to bring to the remit of collateral waiver is to be welcomed. Litigants should be able to predict with a degree of confidence the knock-on effect of deploying privileged material in legal proceedings. Although, of course, any question of fairness will turn on the particular facts of a case, it is helpful to be able to look to previous case law for firmer guidance in this area.

After the recent privilege judgments in RBS Rights Issue Litigation and SFO v ENRC, this decision provides some much-needed judicial support for the right to claim privilege.

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.

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