Expandable Ltd & Anor v Rubin

A document is “mentioned” for the purposes of CPR 31.14 when the statement makes a direct or specific allusion to it. The test is broad and does not require reliance on the document, identification of its precise format, or reference for a particular purpose.

Such mention constitutes disclosure, but it does not automatically and absolutely waive legal professional privilege. The right of inspection under CPR 31.14 and 31.15 is qualified by the right to withhold inspection recognised by CPR 31.3 and 31.19. A fundamental right such as privilege cannot be abrogated by general language or mere implication.

The appellants claimed an interest in funds held by the respondent as supervisor of a failed individual voluntary arrangement. In a witness statement, the respondent said that his solicitor had written to him enclosing an interview note and drawing attention to discrepancies. The appellants sought inspection of that covering letter under CPR 31.14.

Registrar Simmonds refused inspection. Patten J dismissed an appeal in [2007] EWHC 2463 (Ch), holding that no document had been mentioned and that, even if it had, privilege had not been waived. On a second appeal, the Court of Appeal considered whether the words used mentioned a document and, if so, whether that mention automatically and absolutely waived privilege.

1. Appeal dismissed. The covering letter had been mentioned in the respondent’s witness statement, but its legal professional privilege was not thereby automatically and absolutely lost. Rix LJ delivered the judgment, with which Jacob LJ and Forbes J agreed.

2. The test under CPR 31.14 is whether there is a direct or specific allusion to a document. The change from “reference is made” in the former rules to “mentioned” did not create a materially different test. Mention is a broad concept. The document need not be relied upon, identified in a particular form, or referred to for a particular purpose.

3. The words that the solicitor “wrote to” the respondent directly alluded to the act of creating a document. They did more than refer to a transaction from which a document’s existence could merely be inferred. Whether the writing was a letter or an email made no difference because either form was a document and there was no uncertainty about the communication being identified.

4. Mention under CPR 31.14 is a species of disclosure within CPR 31.2. The consequent right of inspection is subject to CPR 31.3(1)(b), which preserves a right or duty to withhold inspection, and to the generally applicable procedure in CPR 31.19 for asserting that right. The apparently mandatory language of CPR 31.15 therefore creates a qualified rather than absolute right.

5. The rules contained no express language abolishing privilege merely because a document was mentioned. Legal professional privilege is a fundamental protection in the administration of justice. Such a protection could not be removed by inference from differences between the former and current procedural rules. Nor did the special provisions concerning experts’ instructions in CPR 35.10(4) support an inference that privilege was otherwise abolished.

6. The Court of Appeal therefore disagreed with both courts below on whether a document had been mentioned, but upheld their conclusion that privilege remained available. The separate question whether the contents had been deployed so as to waive privilege in the circumstances of this case was outside the permitted grounds of appeal.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 59, the court dismissed the second appeal. It reversed the conclusion that no document had been mentioned but affirmed that mention did not automatically and absolutely waive privilege.
2. High Court, Chancery Division: Patten J dismissed the first appeal in [2007] EWHC 2463 (Ch), agreeing that no document had been mentioned and that privilege would not in any event have been waived by mere mention.
3. Registrar: Registrar Simmonds refused the appellants’ application for inspection. He held that the witness statement did not mention a document and observed that any mention would not have waived privilege.