J Sainsbury Plc & Anor v WSP Consulting Engineers Plc

Partial disclosure of privileged material may be required where a party deploys part of a document and fairness requires the opposing party to see the material necessary to understand the disclosure. Deployment may include placing documents in the trial bundle where they are relevant to the issue being proved, even if counsel does not expressly rely on them.

Common interest privilege requires substantially the same interest, such that the parties could have been represented by the same lawyers in the relevant proceedings. It does not arise where the parties’ interests were opposed when the advice was obtained.

The claimants sought damages from WSP for the admitted negligent design of a supermarket floor slab. The claimants later demolished the supermarket and constructed a replacement. WSP applied during the seventh day of trial for disclosure of unredacted documents, collateral legal advice and an expert report prepared for the claimants’ insurer.

The principal issues were whether partial references to privileged material had been deployed so as to require wider disclosure, and whether the expert report was protected by common interest privilege.

1. Disclosure of redacted documents. The critical issue was when, why and on what material the claimants decided to replace the supermarket. A document containing a partial record of legal advice created a potentially misleading picture. Applying the approach in Great Atlantic Insurance Company v Home Insurance Company [1981] 1 WLR 529, fairness required disclosure of the complete document.
2. Deployment is not confined to documents expressly read or relied upon in opening. Where documents are included in the trial bundle so that they may be considered in determining how a decision was reached, they are deployed for this purpose. The redacted passages were therefore required to be disclosed where they were material to the decision to rebuild and to the circumstances in which it was made. The court applied the reasoning in Nea Karteria Maritime Company Limited v Atlantic & Great Lakes Steamship Corporation (No 2) [1981] Commercial Law Reports 138 and Secretary of State for Transport Ex parte Factortame and Others, R v [1997] EWHC Admin 445.
3. References to the fact or effect of counsel’s advice did not, in the circumstances, require production of the advice itself. The application for the report of Mr Pepper was not established merely by the reference to the insurer’s technical expert.
4. Common interest privilege. The relevant interest must be substantially the same, in the sense that the parties could have been represented by the same solicitors and counsel. The principle in Buttes Gas and Oil Company v Hammer (No 3) [1981] 1 QB 223 was applied. The claimants and their insurer had initially occupied opposing positions concerning insurance coverage. The report was obtained to support the insurer’s position that there was no policy claim. Their interests became aligned only later, which was insufficient to create privilege retrospectively. The report was ordered to be produced.