Maintaining privilege

In Expandable Ltd v Rubin, the defendant's witness statement referred to his solicitor having written to him enclosing some notes of a meeting. Although the notes of the meeting referred to were disclosed, the solicitor's letter was not. The claimant sought inspection of the letter pursuant to CPR 31.14 which provides that a party may inspect a document mentioned in a statement of case, witness statement, witness summary or affidavit.

The claimant argued that privilege had been waived or lost by mention of the letter in the witness statement. The defendant argued that the solicitor's letter had not been specifically identified although its existence could be inferred from the words used in the witness statement but that, in any event, it remained a privileged document as the terms of CPR 31.14 did not create an automatic waiver of privilege.

The Court of Appeal, in the first direct post Civil Procedure Rules authority on this point, had to determine two issues being:

1 Was there mention of a document for the purposes of CPR 31.14?

Yes. The test is one of direct allusion or specific mention and is not intended to be a difficult test. The document in question does not have to be relied on or referred to in any particular way or for any particular purpose, in order to be mentioned. Here, the court found the use of the words "he wrote" in the witness statement to be a direct allusion to the letter itself. That being the case, the solicitor's covering letter had been referred to or mentioned. Subject to the question of privilege, the court held that there should be no need for a strict approach to a request for inspection pursuant to CPR 31.14. The party deploying the document by its mention should in principle be prepared to be required to permit its inspection and the other party should be entitled to its inspection.

2 Was mention of the letter an automatic and absolute waiver of privilege?

No. The rules of legal privilege were not to be lightly set aside and could not be overridden by general or ambiguous words or by inference. The court held that the automatic and absolute waiver of privilege could not be the price for the mere mention of a document in a statement of case, witness statement etc and such a major change in philosophy could not be inferred. CPR 31.14 should be viewed as an adjunct to CPR 31.3 (right of inspection of a disclosed document). This provides that a party has a right to inspect a disclosed document except where "the party disclosing the document has a right or a duty to withhold inspection". Disclosure under CPR 31.14 is merely a species of disclosure and the right to inspection is qualified by reference to the provisions of CPR 31.3.

Comment

This case provides useful clarification of when documents will be treated as "mentioned" so as to bring CPR 31.14 into play. It is also a sensible decision, given the fundamental importance of legal professional privilege, that a mere mention as occurred in this case will not automatically lead to a loss of protection.

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