Love v Fawcett & Anor

Legal professional privilege depends on the nature and purpose of the relevant communication. A sole retainer does not become joint merely because another person acts as the client’s agent, bears the costs, or has an interest in the transaction. A joint interest may nevertheless arise for particular communications where the parties share the relevant commercial purpose. Communications concerning competing financial interests remain confidential and privileged.

Privilege may be waived in relation to disclosed documents, but the wider extent of any waiver may require determination at trial. Without prejudice protection depends on whether negotiations were a genuine attempt to compromise a dispute, judged from the circumstances rather than labels. The privilege may also be waived by conduct inconsistent with maintaining it.

The defendants applied for orders excluding parts or all of three witness statements served by the claimant, restraining use of confidential information, and requiring delivery up of documents. The application raised issues concerning legal professional privilege, waiver of privilege, without prejudice negotiations, and the proposed exclusion of a solicitor as a witness.

The solicitor had acted for the claimant and later acted for Northam alone. The claimant contended that the later retainer was joint, or that he had a joint interest in all communications. The defendants disputed that contention and also claimed that negotiations concerning the financial fruits of a development were without prejudice.

The central issues were whether particular communications were confidential or privileged, whether privilege had been waived, whether the negotiations were protected, and what practical directions were required before trial.

1. Legal professional privilege. The retainer from June 2007 was a sole retainer by Northam. The claimant’s agency for Northam, expected contribution to legal costs, and interest in the development did not make him a joint client. A joint retainer and a joint interest were distinct concepts.
2. A joint interest existed in communications concerning the letting to Gordon Ramsay Holdings Limited and the prospective sale of the reversion. The claimant had a strong prima facie interest in the fruits of the development, was involved in the transactions, and was expected to bear the solicitor’s charges. Those communications were not confidential as against him and could not be withheld on grounds of legal professional privilege.
3. No joint interest existed in communications concerning the financial relationship between the claimant and Northam. Those interests were competing. Communications concerning how Northam should deal with the claimant were confidential to Northam and the solicitor and were privileged in the litigation.
4. The defendants had waived privilege in documents listed and inspected by the claimant. The court could not determine on the application the outer limits of any collateral or associated waiver.
5. The iniquity exception did not apply. The material had not been created for the purpose of effecting iniquity. The allegation that the defence was inequitable was a matter for trial and did not itself remove privilege.
6. The negotiations were not without prejudice. They were commercial negotiations about financial terms rather than a genuine attempt to compromise a legal dispute. Alternatively, the parties’ pleadings and evidence amounted to conduct waiving any such privilege.
7. The claimant was directed to withdraw Mr Barry’s existing statement and could serve revised statements by 12 noon on 30 June 2011. Any continuing dispute about waiver was left to the trial judge. Mr Barry was not debarred from giving relevant and admissible evidence. No injunction or delivery-up order was made.

First-instance interlocutory decision. Directions were given concerning the witness evidence and any remaining dispute about waiver was left to the trial judge.