Commodities Research Unit International (Holdings) Ltd & Ors v King and Wood Mallesons LLP

Specific disclosure must be necessary for the fair disposal of the proceedings and proportionate. The court applies the standard disclosure criteria by reference to the pleaded issues, while giving effect to the overriding objective.

Privilege waiver is determined by conduct. A party cannot waive privilege selectively within the same document or series, but waiver may be confined to severable issues or communications. Deploying privileged communications to support a pleaded claim waives privilege in the documents to which those communications refer. A waiver concerning advice on a particular settlement does not automatically extend to advice given at earlier stages of the litigation.

The claimants brought professional negligence proceedings against their former solicitors concerning advice given in connection with an employee’s departure and the subsequent settlement of the employee’s claims. The defendants applied for specific disclosure under CPR r.31.12.

Two categories remained in dispute: documents concerning the review of employee incentive schemes, and documents exchanged during the employee’s underlying proceedings. The defendants also sought privileged advice and related documents after the claimants’ witnesses referred to legal advice and communications in their statements. The court had to determine what disclosure was necessary and proportionate, and the extent to which privilege had been waived.

1. Specific disclosure. The applications were determined by the standard disclosure criteria in CPR r.31.6, read with the overriding objective in CPR r.1.2. Relevance to a pleaded issue was important, but the requested disclosure also had to be necessary for the fair disposal of the litigation and proportionate.
2. Category 8. The defendants had not shown that general documents concerning the claimants’ incentive schemes were necessary or proportionate. However, subject to any further explanation from the claimants, documents to or from the Monk Partnership concerning the particular employee and referring to his LTIP were sufficiently specific and could be disclosed.
3. Category 15. There was no sufficient basis for ordering production of the claimants’ own disclosure list from the underlying proceedings. Witness statements, exhibits and mediation documentation would generally provide the defendants with the material needed to assess the reasonableness of the settlement. A further application remained possible if evidence showed that a specific important document was missing. The court left open whether a mediator could veto disclosure where the parties and employee consented.
4. Waiver concerning settlement advice. By serving evidence about advice on the final settlement, the claimants waived privilege in contemporary written or oral advice on the merits of that settlement, and in instructions on which that advice was based. The waiver did not extend automatically to all earlier advice. Advice given at different stages could concern different circumstances and issues, and was not necessarily one indivisible sequence.
5. Documents referred to by Mr Barber. Mr Barber used references to communications with Norton Rose to support the claim for management time, not merely to identify dates of contact. Privilege was therefore waived in the documents to which he referred. Inspection was necessary for the fair disposal of the claim and was not disproportionate.
6. The applications were allowed only to the extent identified above. The defendants obtained inspection of the documents referred to by Mr Barber and the specified employee-related LTIP documents, subject to the stated qualifications.

First-instance decision on applications for specific disclosure. The judgment records earlier directions by Master Eastman but no appellate decision.