Tag Archives: Waiver

Court of Appeal finds waiver where privileged document provided for inspection and mistake not obvious

The Court of Appeal has granted claimants permission to use privileged documents which had been disclosed inadvertently by the defendant (the SFO) in the course of litigation, reversing the decision of the Commercial Court: Rawlinson and Hunter Trustees SA v SFO … Continue reading

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High Court restrains use of privileged documents disclosed by solicitor in breach of confidence

The High Court has held that a party retained the benefit of legal advice privilege in information provided to her solicitor which the solicitor had disclosed to her opponent in breach of confidence after the retainer had come to an end: Kousouros v O’Halloran … Continue reading

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High Court decision underlines strict dominant purpose test for litigation privilege

A recent High Court decision demonstrates the court’s strict approach in analysing the purpose for which a report was prepared in order to determine whether a claim for litigation privilege is available: Tchenguiz & anor v Rawlinson and Hunter Trustees SA & … Continue reading

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Reliance on term of “without prejudice” offer waived privilege in rest of offer

In considering costs issues following judgment in a complex patent action, the High Court had to determine whether it was appropriate for the court to be shown a Part 36 offer that had been made in relation to the current action as well as a … Continue reading

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Waiver of privilege: deployment and cherry-picking

A recent tribunal decision has given a reminder of when a waiver of privilege will (or will not) extend further than a party intends: Fisher v HMRC [2012] UKFTT 335. The principle of collateral waiver, or the “cherry-picking rule”, is designed to prevent … Continue reading

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Waiver of privilege in draft expert report

The High Court has held that a defendant waived privilege in its draft expert report, since it had deployed significant parts of the report in a witness statement served in defence of an application to strike out its counterclaim: ACD … Continue reading

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High Court restrained use of privileged documents disclosed inadvertently

The recent High Court decision in London Borough of Redbridge and another v Johnson [2011] EWHC 2861 (QB) is a reminder that where privileged documents are disclosed inadvertently (here pursuant to a subject access request under section 7 of the Data … Continue reading

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Court of Appeal on limited waiver of privilege

The Court of Appeal has held that a claimant was entitled to assert privilege in a draft witness statement relating to separate litigation, despite having previously copied the draft to the defendant in the current proceedings: Berezovsky v Hine [2011] … Continue reading

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Waiver of privilege to support merits at interlocutory stage means waiver of privilege at trial

A recent High Court decision confirms that where a party relies on the contents of privileged material to support its case on the merits at the interlocutory stage, it will be taken to have waived privilege in the relevant materials … Continue reading

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Privilege update

The recent case of Tchenguiz v Imerman [2009] EWHC 2902 gives guidance on when lawyers’ annotations (in particular highlighting or underlining on documents) are protected by legal professional privilege. It is well settled that pre-existing documents do not become privileged … Continue reading

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