Glenn & Anor v Watson & Ors

A witness’s duty of confidentiality is not waived merely because confidential matters are pleaded or will be relevant at trial. Litigation may require disclosure of confidential material and permit questioning about it at trial, but an existing duty of confidence may still prevent pre-trial discussions with the opposing party. The position differs from legal professional privilege. Pleading a privileged document amounts to an announced intention to rely on it, requiring the party either to abandon reliance or accept waiver. The court also held that expert questions must arise from the pleaded issues and should follow the language of the pleadings where competing formulations might prejudge disputed matters.

The judgment determined applications made at a case management conference in three related proceedings due to be tried together. The principal application concerned whether the claimants had waived confidentiality owed by Mr Miller by pleading matters concerning his relationship with Sir Owen and by referring to particular communications. The defendants sought permission, framed as an interim declaration, to obtain evidence from Mr Miller before trial.

The court also decided disputed follow-up questions for experts on United States tax law. A separate specific disclosure application was reserved for another judgment.

1. Confidentiality and pre-trial witness discussions. Following Porton Capital Technology Funds v 3M UK Holdings Ltd [2010] EWHC 114 (Comm), a witness who owes a duty of confidence may be required to answer relevant questions at trial, subject to privilege and judicial control. That does not release the witness from the duty of confidence before trial.
2. Privilege and pleading. The authorities on waiver of privilege establish that pleading a privileged document amounts to an announced intention to rely on it at trial. The party must elect either to remove the reference and abandon reliance or to accept the consequences of waiver. This principle applies even where the claim is against a third party rather than the person who owed the privilege.
3. Confidentiality differs from privilege. Confidential material relevant to pleaded issues may be disclosable and may be explored in evidence at trial whether or not it is specifically pleaded. Pleading the material does not, however, fundamentally alter its confidential character or release a witness from an existing duty not to discuss it before trial. The claimants had therefore not waived Mr Miller’s duty of confidentiality.
4. The applications seeking an interim declaration permitting pre-trial discussions with Mr Miller were dismissed. Since the duty remained, the issue was one of the claimants’ right to release him, not a matter of judicial discretion.
5. Expert evidence. Expert questions must assist in resolving pleaded issues. The claimants’ proposed questions concerning the settlor’s business experience and information revealing matters of concern to trustees or beneficiaries were allowed. Novatrust’s questions were allowed only in amended form, referring to a wish to be involved in or fully engaged in investment decision-making, rather than assuming that the settlor sought to exercise control which the pleadings accepted he did not possess.
6. The specific disclosure application was to be dealt with in a separate judgment.