Waiving Privilege: Legal Professional Privilege and AG v VD [2020] EWHC 1847 (Fam).

To feel able to speak freely with your lawyer is a fundamental principle which is integral to the proper working of any justice system. A sine qua non. At common law, this principle takes the form of legal professional privilege. Legal professional privilege affords the client the legal right to withhold lawyer and client communications, both in writing and by spoken word, from a third party and/or the Court. In other words, it potentially gives a party the right to withhold evidence.

The ambit of privilege is, of course, circumscribed. It does not simply appear when a client and their lawyer are communicating. The purpose of the communication, for one, is essential. Nor is it an absolute right. If it exists then it can also be lost. Ascertaining whether privilege has been lost, whether a party has waived privilege, requires careful consideration. And, further, if privilege has been waived then what is the effect of such waiver? Where is the Court to draw the line between waiver and privilege? In practical terms, what documents need to be produced in the wake of any waiver? The entire file? What is to happen if a party seems to be both waiving and claiming privilege at the same time (and presumably doing both to further their case)? This is the so-called “cherry-picking principle” which was considered by Cohen J in AG v VD [2020] EWHC 1847 (Fam).

In the substantive case, W (“AG”) brings proceedings against H (“VD”) under Part III Matrimonial and Family Proceedings Act 1984. The parties had both married and divorced in Russia.

Within the proceedings, H sought an order that W produce the files of her previous legal advisors.

H (identifying three occasions in W’s two statements and her replies to questionnaires) contended that W had waived privilege.

A key issue within proceedings concerns the length of the marriage which is disputed. It is in issue whether the marriage continued until the middle of 2014, as pleaded by H in the petition in Russia, or late 2017, as W contends in the current proceedings?

W had previously filed a petition (later withdrawn) in England in March 2017. In that petition, W had stated, “the petitioner and the respondent have been separated for the past two years in that they live separate and independent lives and do not have sexual relations” (as at para 4 of Cohen J’s judgment)

In her stated case in the present proceedings, W had made various criticisms of her previous representatives. She had stated, for example, that previous representatives were “incompetent … possibly even negligent…the petition was riddled with errors and inaccuracies.” W had also stated that the petition, “Incorrectly asserted that we had separated two years previously” and “mistakenly refers in the statement of case to a two year period of separation and to a lack of marital relations” (12).

Cohen J summarised W’s case as follows (14),

It is clear that these words are carefully chosen by the specialist legal team that W now has acting for her. Behind these emollient words it is clear that the way W’s case is being put is as follows:
i) The petition did not reflect her instructions and that she did not tell her advisors that she had separated two years prior to March 2017 or that marital relations had then ceased;

ii) Whoever drafted the petition misunderstood W’s instructions;

iii) W never saw the petition (as I was told during the hearing) or, alternatively, that it was “just put in front of her” but at no time was it translated into Russian either on paper or orally with the result that W did not understand its contents and/or was deprived of the opportunity of checking it;

iv) At no time did W ever speak to a qualified lawyer or anyone in any capacity at [the firm of solicitors].”
Mr Justice Cohen continued,
“It is important that I have spelt out exactly what W’s case now is so as to evaluate the inconsistencies between the position as pleaded in her divorce petition and now and in order to assess the extent of the substance of the inconsistency. Is she simply making a passing reference to an erroneous document or is she opening the door of the notional consulting room in which she and her advisors were meeting and explaining and relying upon what would otherwise be a privileged process?” (15; my bold)

In answer this question, Cohen J took as his starting point the judgment of Elias J, as he then was, in Brennan and Others v Sunderland City Council and Others [2009] ICR 479. Elias J summarised the approach as follows:

(1) As a matter of public policy, all communications between a legal adviser and/or his or her client are privileged from date of production so long as they are confidential, written by or to the legal adviser in his or her professional capacity, and for the purpose of giving or getting legal advice … The interest which it protects is to ensure that communications between a solicitor and client may be frank and free and should not emerge into the public domain if litigation is subsequently pursued.

(2) A party may, however, waive that privilege. Classically, and uncontroversially, this would be so in instances where the party refers in detail to, and seeks to rely upon, part of a document setting out legal advice, but resists the other party’s efforts to obtain disclosure of the whole of that advice.

(3) Whether or not privilege has been waived is determined by the application of the principle of fairness…

In Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation, Mustill J, as then he was, said this:
where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood“.

This is frequently referred to as the “cherry picking” principle. A party cannot seek to gain an advantage in litigation by placing part of a document before the court and withholding the remainder.

(4) The fact that waiver is accidental makes no difference; once waived, the whole document must be produced (or at least all parts of the document relating to that subject matter) …

(5) A document may be redacted to remove immaterial matter or material of no relevance to the case, whether privileged or otherwise” (para 16 of Cohen J; para 16 of Elias J)

Elias J had continued:
We begin with the observation that the underlying principle here is fairness. We agree with Mr Engelman that it is also inconsistency -waiving where it suits and claiming privilege where it does not – but the test for determining whether there is such inconsistency as would warrant a finding of waiver is fairness.

In our view the fundamental question is whether, in the light of what has been disclosed and the context in which disclosure has occurred, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material. The court must not allow cherry picking, but the question is: when has a cherry been relevantly placed before the court?

Typically, as we have seen, the cases attempt to determine the question whether waiver has occurred by focusing on two related matters. The first is the nature of what has been revealed; is it the substance, the gist, content or merely the effect of the advice? The second is the circumstances in which it is revealed; has it simply been referred to, used, deployed or relied upon in order to advance the party’s case? …

Having said that, we do accept that the authorities hold fast to the principle that legal advice privilege is an extremely important protection and that waiver is not easily established in that context something more than the effect of the advice must be disclosed befree any question of waiver can arise.

However, in our view, the answer to the question whether waiver has occurred or not depends upon considering together both what has been disclosed and the circumstances in which disclosure has occurred. As to the latter, the authorities in England strongly support the view that a degree of reliance is required before waiver arises, but there may be issues as to the extent of the reliance. Ultimately, there is the single composite question of whether, having regard to these considerations, fairness requires that the full advice be made available. A court might, for example, find it difficult to say what side of the contents/effect line a particular disclosure falls, but the answer to whether there has been waiver may be easier to discern if the focus is on the question whether fairness requires full disclosure.” (paras 62 -67)

Elias J had continued at paragraph 79:

“We agree that the law should be careful not too readily to find that relatively casual references to legal advice in collective bargaining negotiations constitute a waiver of privilege…In particular, if there is no reliance on these references then, even if they are relatively detailed, that will still not lead to waiver of privilege. If on the other hand there is reliance, it is only fair that the full advice (at least with respect to any relevant issue disclosed) should be produced.”

Decision

Cohen J held that W had indeed “invited H into the consultation room” (24).

He determined that it was plain that W was advancing a case that her instructions had been misconstrued, misquoted or not followed and that she was expressly challenging what her lawyers quoted her instructions to be. This amounted to “a radical change of direction in her case which goes to its substance” (24).

As a result, it “would not be fair for H to be put in the position where he could not challenge this statement by reference to what are likely to be contemporaneous notes, emails or other communications” (25).

It did not matter that W had avoided specifying a particular conversation or did not refer to the advice itself which was “neither here nor there” (26).

It was, however, relevant that W had “opened up the question of what she told her advisors. She puts it squarely in issue and is relying upon what she told her agents” (26).

Having reached that conclusion, he determined that to allow H to “see the whole of the file goes too far” (31).

W would be required to disclose: “(i) such material, whether attendance notes or communications, in which W’s instructions are given or noted as to when the parties separated and when marital relations between them ceased; ii) copies of all such communications and notes so as to identify those to whom W gave her instructions and the language in which those instructions were given as to the specific matters set out in i); and iii) Those documents identifying when the draft petition was sent to W or any communication with her about its contents, whether coming to W from her advisors or from W to them” (para 32).

W was ordered to pay the costs of H’s summons on the standard basis.