Two recent decisions consider application of principle of limited waiver of privilege

In two recent decisions, the High Court has considered the extent to which a party can provide privileged documents to a third party for a particular purpose without resulting in a wider waiver of privilege. The decisions illustrate the importance, in these circumstances, of making clear any intended limits on the use of the privileged material.

In FM Capital Partners Ltd v Marino & ors [2017] EWHC 3700 (Comm) the court found that a company had waived litigation privilege in an investigation report because, before the proceedings had commenced, it had provided a copy of the report to one of the defendants (its former CEO) for the purposes of a disciplinary hearing against him. The company had not imposed an express restriction on the use of the report. In the absence of such a restriction, and given that the report was prepared for the purposes of potential litigation including litigation against the defendant, the natural inference was that the defendant would be free to use the report for that litigation.

In Belhaj v Director of Public Prosecutions [2018] EWHC 513 (Admin), in contrast, the government had shared its privileged advice with the police, the Crown Prosecution Service (CPS) and Director for Public Prosecutions (DPP) subject to a clear express limitation on its use. In those circumstances, the court found privilege had not been waived for the purposes of a subsequent judicial review application. It rejected the claimants’ argument that the judicial review was so closely linked to the review for which the advice had been shared that there was an inferred waiver for the purposes of the judicial review. The contrary conclusion would mean that, in almost any case where one government department waived privilege to assist another, privilege might be lost for the purpose of a subsequent judicial review, and this would be strongly against the public interest.

The FM Capital decision also contains interesting comments on the dominant purpose test for litigation privilege where a company is facing serious potential claims against it as well as dealing with disciplinary proceedings against an employee. Although each case will turn on its facts, the decision suggests that a court might readily accept that the company’s greater concern will be preparing for the litigation, rather than disciplining its own employee, potentially making it easier to establish a claim for litigation privilege in these circumstances.  Continue reading

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Upcoming webinar – Litigation update

On Wednesday 18 April (12.30 – 1.30pm BST), Anna Pertoldi, Maura McIntosh and Jan O’Neill will deliver a webinar for Herbert Smith Freehills clients and contacts looking at developments in commercial litigation since our last update webinar in October last year. The webinar will focus on lessons learned from decisions in areas such as privilege, disclosure, relief from sanctions, and costs and funding.

The webinar is part of our series of HSF webinars, which are designed to update clients and contacts on the latest developments without having to leave their desks. The webinars can be accessed “live”, with a facility to send in questions by e-mail, or can be downloaded as podcasts after the event. If you would like to register for a webinar, or to obtain a link to the archived version, please contact Jane Webber.

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A reminder that inadvertent disclosure of privileged material will not engage the cherry picking rule

The Administrative Court has held that a defendant did not lose privilege in unredacted passages of documents that had been provided for inspection, as it was obvious that the passages had been inadvertently disclosed, and that there was no question of a wider waiver of privilege as the material had not been deliberately deployed: Belhaj v Director of Public Prosecutions [2018] EWHC 514 (Admin).

Where a party to litigation deploys privileged material to support its case on the merits, the “cherry picking” rule (or the principle of collateral waiver) may result in a wider waiver than intended; the court may require disclosure of further privileged material to avoid unfairness or misunderstanding of the material disclosed.

The present decision is a reminder that the “cherry picking” rule has no part to play outside the context of a deliberate deployment of privileged material. Where privileged material is inadvertently provided for inspection, and the mistake is not obvious, this is likely to result in a loss of privilege in respect of that material. However, the loss of privilege will be limited to the material disclosed and will not extend to other privileged material which has not been provided. Continue reading

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Notable increase in interim privacy injunctions sought and obtained in the second half of 2017

In March 2018, the Ministry of Justice published quarterly provisional civil justice statistics for England and Wales.

These statistics include interesting details regarding the increase in court applications for privacy injunctions in 2017. The guidance to the Civil Justice Statistics Quarterly bulletin published in December 2017 notes that the statistics provided in respect of privacy injunctions relate to “applications concerned with data protection and rights to respect for private and family life protected by Article 8 of the European Convention on Human Rights (ECHR), whether the injunction is sought by an individual, a public authority, or a company.” It is important to note that the statistics only relate to civil proceedings in the High Court at the Royal Courts of Justice and the Court of Appeal.

According to the statistics, over the course of 2017, 14 applications were made for new interim privacy injunctions, over double the number that were made in 2016. Of the 8 new interim privacy injunction applications made in the last six months of 2017, all 8 were granted (a significantly higher success rate than in the first six months of the year).

The figures also show a steady increase in the number of applications for privacy injunctions made from 2015 onwards after the number of such applications being brought fell dramatically in 2014. While the previous decline may be attributed to a number of factors (including the growth of social media platforms over this period and the use of those platforms to circumvent such injunctions), the increasing number of applications made for privacy injunctions in 2017 together with the significant success rate that parties achieved pursuing such applications in the last six months of 2017, suggest that the privacy injunction constitutes a valuable and viable option available to parties in their attempts to protect their Article 8 rights.

For more information contact Neil Blake or Christopher Cox in our disputes team. Continue reading

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Supreme Court finds contempt of court constitutes unlawful means for the tort of conspiracy

The Supreme Court has held that contempt of court can constitute unlawful means for the purpose of the tort of conspiracy: JSC BTA Bank v Khrapunov [2018] UKSC 19.

The decision is significant as it confirms that third parties may find themselves exposed to litigation and subject to damages if they conspire in the commission of a contempt of court. The Supreme Court made a number of interesting observations on the scope of the economic torts more generally and, on a matter of wider interest, also hinted that the law might develop to allow litigants to recover damages for contempt of court in the absence of a conspiracy.

The latter point could have potentially far-reaching practical consequences. Until now, contempt of court has generally been regarded as a matter between the wrongdoer and the court, rather than a wrong actionable by private parties who have suffered loss as a result. This decision leaves the door open for a litigant to argue that civil damages are recoverable for an opponent’s contempt of court.

Gary Milner-Moore and Kate Emanuel from our disputes team consider the conspiracy aspect of the decision further below.  The decision is also of interest for its consideration of the issue of jurisdiction, which is considered in a separate blog post here. Continue reading

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Court of Appeal considers when material posted on Facebook is published for the purposes of defamation

The Court of Appeal has rejected an argument that there is a need to “rebalance” the law of defamation in favour of defendants by imposing a knowledge or negligence based test to establish liability for publication, with the burden of proof on claimants: Stocker v Stocker [2018] EWCA Civ 170.

The court held that a party published defamatory comments about her ex-husband to the third parties who read them when she posted them on a Facebook Status Update of his new partner, even though she had not turned her mind to the question of who else might see her comments.

In addition, the court rejected an argument that a Facebook user’s ability to remove or restrict his or her friends’ access to comments means that publication of the comments is a republication because the user is “actively involved” in the publication.

Although this decision concerns publication in the context of Facebook, it has potential relevance to other online networks or platforms.

Alan Watts, Partner, and Zoe Wood, Associate (Australia), in our London disputes team consider the decision further below. Continue reading

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Supreme Court holds English court has jurisdiction over tort claim where conspiracy hatched in England

The Supreme Court has held that the place of the event giving rise to damage in a claim alleging the tort of conspiracy to injure by unlawful means is where the conspiratorial agreement was made. As that was England, the English courts had jurisdiction: JSC BTA Bank v Khrapunov [2018] UKSC 19.

More generally, the decision confirms that when looking for the place of the event giving rise to damage, the court should focus on the events which set the tort in motion.

The decision is also of interest for its consideration of what amounts to unlawful means for the purposes of the tort of conspiracy to injure by unlawful means. That part of the decision will be considered in a separate blog post to be published shortly.

The Supreme Court’s decision upholds the Court of Appeal’s decision on both issues. For our earlier posts on the Court of Appeal’s decision see here and here. Continue reading

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Manual disclosure review ordered due to concerns over party’s computer assisted review

In a recent High Court decision, the court expressed concerns regarding the claimants’ computer assisted disclosure review and ordered them to carry out a manual review of a substantial number of documents that had been excluded from review on the basis of a computer assisted sampling of the documents: Triumph Controls UK v Primus International Holding [2018] EWHC 176 (TCC).

In a number of judgments in recent years, the courts have given in principle approval of computer assisted reviews (CAR), including predictive coding (see here and here). The present decision illustrates that the court is prepared to delve into the detail of how such programmes have been set up and used in order to assess the adequacy of a party’s disclosure.

It also serves as a reminder of the importance the courts place on transparency in such processes. Where a party fails to engage with its opposing party adequately in advance of designing and carrying out its disclosure searches, it risks being ordered to redo some or all of the review, even if that involves substantial additional time and costs. Continue reading

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Article published – Alternative dispute resolution reform: one size does not fit all

On 6 March, the Civil Justice Council held a workshop to discuss the recommendations made in its interim report on ADR, which was subject to consultation late last year. The interim report expresses concerns regarding a perceived underuse of ADR and suggests corrective measures, including a power for the court to determine whether costs sanctions should be imposed for unreasonable conduct relating to ADR (such as an unreasonable refusal to mediate) not only at the end of a case, as currently, but during the matter when the decisions regarding ADR are taken.

Jan O’Neill has published a post on Practical Law’s Dispute Resolution blog in which she questions how realistic the suggestion of “midstream” assessment of parties’ conduct relating to ADR would be in practice. She suggests that many of the concerns expressed in the report as to the underuse of ADR are not relevant to larger, complex claims, and urges the working group to tailor any final recommendations to the specific courts or dispute types for which they are needed and practicable. Click here to read the post (or here for the Practical Law Dispute Resolution blog homepage).

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EU’s revised proposals for enforcement of judgments post-Brexit

On 15 March, the European Commission published a revised version of the draft withdrawal agreement it had previously published on 28 February 2018 (see our summary of the original terms relating to jurisdiction, choice of law and enforcement of judgments here). The revised version contains a significant change regarding continuation of the current arrangements for enforcement of judgments, bringing the EU’s position closer to that of the UK on this issue.

The EU’s initial draft agreement provided that the current rules on enforcement of judgments, under the Recast Brussels Regulation, would apply only to judgments given before the end of any transition period. In contrast, the revised draft provides that those rules would apply so long as the proceedings were instituted before the end of that period.

This is a positive step but, in contrast to the UK’s position, there is no provision for the current rules on enforcement to apply where a jurisdiction agreement was entered into before the end of the transition period, if proceedings were commenced after it. 

A further version of the draft withdrawal agreement has been published today (19 March) indicating which areas of text are agreed and which remain subject to discussion (though as noted in our separate blog post on the key areas of agreement, linked here, nothing is agreed until everything is agreed). Discussions are said to be ongoing in relation to the provisions on jurisdiction and enforcement, in contrast to the provisions on choice of law which form part of the text marked as having been agreed.

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