Hellard & Anor v Mitchell (Rev 1)

Bringing professional-negligence proceedings against a solicitor impliedly waives legal professional privilege in relevant communications concerning the retainer. The waiver extends to the entirety of the relevant advice and prevents cherry-picking. It is not confined to documents held by the solicitor. Once the communication has lost its privileged character, any relevant evidence about it may be adduced, including evidence from counsel who participated in giving the advice and counsel’s working papers or recollection. Fairness determines the extent of an established waiver; it does not, by itself, override privilege.

The claimants, trustees in bankruptcy, sued the defendant solicitors for alleged negligence in failing properly to advise Mr Shore on limitation issues in earlier professional-negligence proceedings. The pleadings referred to advice given by counsel. The defendant sought a declaration that privilege and confidentiality had been waived and that counsel could be approached for witness evidence, including evidence concerning counsel’s notes, working papers and recollection.

The claimants accepted waiver in relation to the solicitors’ file and advice, but contended that material remaining in counsel’s possession or recollection remained privileged because counsel had not been sued. The issue was the extent of the implied waiver.

1. Declaration granted. By bringing proceedings against their former solicitors concerning the advice given, the claimants impliedly waived privilege in the relevant solicitor-client communications. The claimants, as trustees in bankruptcy, had power to waive the privilege.
2. The waiver extended to the entirety of the relevant solicitors’ advice and material. The claimants could not disclose favourable material while withholding other relevant material on grounds of privilege. This followed the approach reaffirmed in Paragon Finance plc v Freshfields [1999] 1 WLR 1183.
3. The waiver was not limited to documents in the solicitors’ possession or to matters recorded in the solicitors’ file. Privilege attached to the confidential communication, not to particular forms of evidence. Once the communication was waived, any relevant evidence concerning it could be adduced, including evidence from counsel who had been privy to the advice, and counsel’s working papers, notes and recollection.
4. The distinction in Paragon Finance plc v Freshfields between the former solicitors and new solicitors did not govern this case. The new solicitors in that case had a separate retainer and had not acted jointly with, or as agents of, the former solicitors.
5. The principle was supported by the reasoning of Coleman J in Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976: implied waiver prevents the unfair exclusion of evidence relevant to a defence where the client has opened the professional relationship to investigation. Fairness was relevant to the extent of the waiver after waiver had been established; it was not an independent basis for overriding privilege.