Dore & Ors ("BOTHCA") v Leicestershire County Council & Ors

Collateral waiver of legal professional privilege is assessed by identifying the particular act of disclosure and the transaction to which it relates. The transaction may extend beyond the disclosed document where the surrounding material shows that the disclosure formed part of a wider transaction. Further disclosure is required only where necessary to avoid unfairness or misunderstanding. A party cannot establish waiver merely by showing that undisclosed privileged material is relevant, that legal advice has been referred to, or that advice given at different times concerns the same dispute. The purpose and circumstances of disclosure, including whether the disclosure was made defensively in response to allegations, are material. On the evidence, the disclosed advice and summaries did not create a misleading or incomplete picture requiring wider inspection.

The claimants, members of the Breedon on the Hill Community Association, brought private law proceedings concerning alleged trusts and rights to use community facilities at premises shared with a primary school. The defendants claimed privilege over legal advice and related documents. The claimants accepted that privilege existed, subject to waiver, and argued that disclosure of a legal report, counsel’s opinion and a summary of solicitors’ advice amounted to collateral waiver of wider categories of privileged material.

The application concerned whether those disclosures extended the relevant transaction or made further inspection necessary to prevent unfairness or misunderstanding.

1. The application was determined in favour of the defendants. The claimants were not entitled to inspect privileged material beyond that already disclosed.
2. The court applied the approach in Fulham Leisure Holdings Ltd v Nicholson Graham Jones [2006] EWHC 158. The court must identify the transaction in respect of which disclosure occurred. That transaction may be wider than the document disclosed where the material or surrounding circumstances establish a wider transaction. Further disclosure is required where necessary to avoid unfairness or misunderstanding.
3. The relevant acts of disclosure had to be examined separately and in context. Disclosure of Mr Gold’s report extended only to that report. The circulation of Miss Laing’s opinion did not create a wider transaction, particularly because the council had not positively chosen to disclose it and the circumstances did not make it misleading. The unredacted report containing a summary of Browne Jacobson’s advice likewise did not waive privilege in the underlying advice.
4. References to legal advice in evidence, including Mrs McCalla’s response to criticisms of the council’s decision-making, did not create a further waiver. Relevance of additional privileged documents was distinct from waiver. The fact that the claimants wished to cross-examine Mrs McCalla about the advice did not itself make wider disclosure necessary.
5. The court did not decide the matter on proportionality. It noted that the waiver issues might be reconsidered if the deployment of evidence or conduct of the trial created a materially different position.