Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd

A party waives privilege where it deploys the contents of a privileged communication to advance its case. A bare reference to the communication or its effect may not suffice.

Once part of a privileged communication has been deployed, the court may require disclosure of the remaining material relevant to the same issue. This prevents a selective account from distorting the communication’s meaning or weight. A waiver made during interlocutory proceedings may continue where the disclosed material also concerns the merits and was intended for use at trial.

The defendant appealed against Buckley J’s order requiring disclosure of communications between the defendant, its solicitors and a forensic computer expert. The underlying action concerned whether an option had been exercised and whether a disputed letter had been created and sent on the date it bore.

In seeking permission to adduce new witness evidence, the defendant had served statements describing information supplied by its expert. The defendant accepted that privilege had been waived over aspects of that information but disputed whether the waiver required disclosure of the wider communications.

The central questions were whether the statements deployed the contents of privileged communications and, if so, whether fairness required disclosure of the remaining relevant material.

1. Permission to appeal was granted, but the appeal was dismissed. The disclosure order was upheld subject to its being narrowed. Waller LJ gave the leading judgment, with which Thorpe LJ agreed.

2. The witness statements deployed the contents of information supplied by the defendant’s expert. They did more than refer to the existence or effect of an expert report. The information was used to persuade Gibbs J to admit further evidence and was also intended to support the defendant’s explanation at trial. Privilege over that information had therefore been waived.

3. A party which deploys part of a privileged communication cannot select only favourable material. The opposing party and the court must be able to examine the whole material relevant to the issue so that the disclosed portion is not misunderstood or presented partially. The principle stated in Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation was applied.

4. The interlocutory setting did not prevent the waiver from taking effect. The disclosure concerned more than the obtaining of an interlocutory order. It related to evidence intended for trial and to the merits of the dispute. Waller LJ reserved whether every waiver in interlocutory proceedings necessarily operates for all purposes, but held that any possible exception could not apply on these facts. Derby v Weldon [1991] 1 WLR 660 supported that conclusion.

5. The defendant could not withdraw the waiver by later deciding not to call some of the witnesses. It still intended to rely upon another witness statement addressing the same information.

6. The order below was wider than necessary. Disclosure was confined to documents made in or about February 2003 which were material to the information supplied by the computer expert and identified in the relevant witness-statement paragraphs. Separate solicitor-client advice was to be excluded or redacted.

• Court of Appeal (Civil Division): Permission to appeal was granted, but the appeal was dismissed. Buckley J’s disclosure order was upheld subject to redrafting so that it covered only the relevant February 2003 expert communications and excluded legal advice: [2003] EWCA Civ 901.

• High Court, Queen’s Bench Division: On 5 June 2003, Buckley J ordered disclosure after accepting that the defendant’s reliance on part of the privileged communications had waived privilege. The order was subsequently accepted to be wider than necessary.

• High Court: In an earlier interlocutory application, Gibbs J permitted further witness evidence after the defendant relied upon statements describing information received from its expert.