ACD (Landscape Architects) Ltd v Overall & Anor

A party waives privilege in a document referred to in a witness statement where the document, or its contents, is deployed for use in interlocutory or final proceedings. The critical distinction is between relying on the document’s contents and referring merely to its effect or impact. Where part of a privileged document is deployed, fairness will generally require disclosure of the whole document so that the opposing party and the court can detect any cherry picking. A responding party to an application should serve evidence in sufficient time to permit a fair opportunity for reply. Substantial evidence served only shortly before the hearing will ordinarily justify an adjournment absent a viable explanation.

The claimant sought payment for landscape consultancy services. The defendants advanced contractual and professional-negligence allegations concerning landscape and visual impact reports prepared for planning appeals. The claimant applied to strike out those allegations, asserting that they lacked reasonable grounds and expert support.

Shortly before the hearing, the defendants served extensive evidence referring to advice from a landscape architect and summarising substantial parts of a privileged draft expert report. The claimant sought disclosure of that draft report and an adjournment to respond to the late evidence. The issues were whether privilege had been waived and whether fairness and proper case management required the strike-out hearing to be adjourned.

1. Privilege waived. The court ordered disclosure of the draft report. Under CPR Part 31.14(1), a party may inspect a document mentioned in a witness statement, subject to a good reason such as privilege. The authorities, including Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529, Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corpn and others [1981] Comm LR 138 and Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd [2003] EWCA 901, establish the relevant distinction.
2. Privilege is waived where an otherwise privileged document is actually or effectively referred to and its contents are deployed for use in the proceedings. Reliance on the document’s effect alone does not ordinarily amount to deployment. The court will generally presume relevance from the fact that the document is referred to in the statement.
3. A party cannot deploy selected contents while withholding the remainder. Disclosure of the whole document is generally required because the opposing party and the court must be able to assess the material in context and ensure that cherry picking has not occurred.
4. The defendants’ solicitor had deployed the contents of the draft report by setting out, over several pages, detailed professional opinions and specific advice attributed to the expert. The express assertion that privilege was maintained did not prevent waiver.
5. Adjournment granted. Case management required the strike-out hearing to be adjourned. The defendants had served substantial witness statements only two to three days before a hearing fixed almost eight weeks earlier. The claimant was entitled to a reasonable opportunity to consider and answer that evidence and the disclosed report. The strike-out hearing was not a trial on the merits, and responsive evidence should therefore be confined to what was necessary.

The hearing of the strike-out application was adjourned to 25 January 2012. The draft report was to be delivered for inspection within one week.