To waive (privilege) or not to waive? – that is the question

The costs consequences of unreasonable behaviour at a mediation and the potential automatic waiving of privilege in a document mentioned in a witness statement are two issues that have come before the courts in recent weeks.

See our analysis of Malmesbury and others v Strutt and Parker as to whether a party should be penalised in costs for adopting a wholly unreasonable stance in a mediation which it attended. This is the first time this point has been addressed by the court.

See our analysis on Expandable Ltd v Rubin as to whether the mention of a privileged document in a witness statement automatically waives privilege in that document so that the opposing party can inspect it. This is the first post Civil Procedure Rules judgment on this point.