Berezovsky v Hine & Ors

A disclosure of a privileged document for a limited purpose does not ordinarily amount to a general waiver of legal professional privilege. The scope of the waiver depends objectively on all the circumstances, especially the communications between sender and recipient and their reasonable understanding of the permitted use.

Where sensitive draft witness statements were supplied to another party’s solicitors solely to assist a separate asylum claim and to avoid inconsistent evidence, the waiver was impliedly confined to those purposes. The recipient’s successors could not deploy the drafts against the privilege holder in overlapping litigation, particularly where this could reveal them in the litigation for which they were prepared.

Mr Berezovsky brought Chancery proceedings against the family and principal beneficiaries of the estate of Mr Patarkatsishvili. Some issues overlapped with a Commercial Court action brought by Mr Berezovsky, and were ordered to be tried as preliminary issues with that action.

Mr Berezovsky’s solicitors had prepared draft witness statements for the Commercial Court action. Another solicitor, acting for Mr Berezovsky but not in that action, forwarded the drafts to solicitors acting for Mr Patarkatsishvili. The purpose was to assist Mr Patarkatsishvili’s asylum application and to avoid inconsistency with evidence in the Commercial Court action.

Mann J held that the family defendants could deploy the drafts in defending the overlap issues. Mr Berezovsky appealed. The central issue was the extent of the limited waiver of privilege created by the forwarding email.

1. Appeal allowed. The family defendants could not use or deploy the draft witness statements at the trial of the overlap issues.

2. A limited disclosure of a privileged document does not effect a blanket waiver. The scope of a waiver must be determined objectively from all the circumstances, including what the sender and recipient expressly or impliedly communicated and what they reasonably understood. The court applied the principle stated in B v Auckland District Law Society, [2003] UKPC 38.

3. The only purposes for which the drafts had been supplied were to assist Mr Patarkatsishvili’s asylum claim and to avoid inconsistent evidence. The sensitivity of unfinished drafts prepared for hard-fought litigation, the confidential heading on the emails, the close relationship between the parties, and the limited benefit to Mr Berezovsky all showed that any waiver was intended to be narrow. It therefore prohibited use for any other purpose without Mr Berezovsky’s assent, subject to residual questions the court did not need to decide.

4. The contrary conclusion would permit disclosure of the drafts to Mr Abramovich in the very proceedings for which they had been prepared. That result was incompatible with the objectively intended limitation. The court did not decide whether common interest privilege arose, or whether the drafts might be used in the remaining Chancery proceedings. Any proposed use outside the overlap issues required a further application.

• Court of Appeal (Civil Division): allowed Mr Berezovsky’s appeal and reversed Mann J’s ruling permitting use of the draft witness statements in the overlap issues: [2011] EWCA Civ 1089.
• High Court, Chancery Division: Mann J had held that the family defendants should not be restrained from using the documents in the proceedings. The judgment under appeal was given on 6 September 2011; no citation is stated.