Fulham Leisure Holdings Ltd. v Nicholson Graham & Jones

Partial waiver of legal professional privilege is assessed by identifying the transaction to which disclosed material relates. The transaction is determined objectively from the nature of the disclosure and, where relevant, the purpose for which it is deployed. It is not defined simply by the documents selected by the waiving party. All privileged material relevant to that transaction must then be disclosed. A further, fact-sensitive fairness inquiry may require disclosure where the material forms part of a wider picture and withholding further material would cause unfairness or misunderstanding. Disclosure of advice on a particular occasion may extend to later qualifications, amplifications or extensions forming part of the same advice, but does not automatically open all later advice on the same subject.

The claimant brought a professional negligence claim against solicitors who acted on its purchase of an interest in Fulham Football Club. During the action it disclosed legal advice given by counsel and solicitors on particular occasions, together with pleadings, witness evidence and a presentation referring to that advice. Later invoices and fee notes indicated further legal work during the same general period, but its nature was redacted. The defendants applied for disclosure of the wider category on the basis that privilege had been waived by partial disclosure and reliance. The central issue was how to identify the transaction defining the waiver and whether fairness required disclosure of the wider advice.

The defendants’ application was refused, save that the claimant had to disclose later advice from Mr Briggs or DJ Freeman which altered, amplified or extended the advice already disclosed.

1. Partial waiver. Disclosure of some privileged documents does not automatically waive privilege over all documents in the same broad category. The authorities, including Lyell v Kennedy 27 Ch D 1 and Paragon Finance plc v Freshfields [1999] 1 WLR 1883, recognise that waiver may be limited, subject to the requirements of fairness.
2. Identifying the transaction. The court must first identify objectively the transaction in respect of which disclosure has been made. It considers the essence of the material disclosed and, where relevant, the purpose or issue for which it is deployed. The transaction is not whatever the waiving party chooses to disclose, and it does not extend automatically to every matter concerning the same subject. The whole of the privileged material relevant to the identified transaction must be disclosed. The approach in General Accident Fire and Life Assurance Corp Ltd v Tanter [1984] 1 WLR 100 was applied.
3. Fairness. Once proper disclosure has been made in relation to the transaction, further disclosure may be required where the material forms part of a wider picture and withholding further material would cause unfairness or misunderstanding. The inquiry is fact-sensitive. The reasoning in R v Secretary of State for Transport Ex parte Factortame CA unreported 7th May 1997 illustrated that distinct periods or issues may remain severable where the disclosed material is not used unfairly.
4. Application. The claimant’s disclosure and reliance concerned advice given by Mr Briggs and DJ Freeman on specified occasions. It was not relying on the totality of legal advice obtained during the four-month period. There was no unfair or misleading deployment of the disclosed material. However, the waiver extended to later advice forming part of the same advice, including alterations, amplifications or extensions. The claimant subsequently served two further documents, one with redactions.

Not stated in the judgment.