Simpkin v The Berkeley Group Holdings Plc

A document is not protected by legal professional privilege unless it is confidential as against the person resisting the claim. Confidentiality turns on a reasonable expectation of privacy. An employee generally lacks that expectation in material created, stored or transmitted on an employer’s IT systems where the employer’s policies permit access and monitoring, particularly where the material concerns the employer’s business and uses its information.

Where privileged material has been deployed, waiver extends to the whole transaction identified by the disclosure. A party cannot selectively disclose favourable legal advice while withholding intermingled advice on the same decision or contemplated litigation. The court may also refuse equitable relief to restrain use of disclosed material where the claimant lacks clean hands.

The claimant, a former group finance director, brought proceedings concerning the treatment of his remuneration and incentive-plan entitlements after his employment ended. The present judgment concerned applications arising before trial of a preliminary issue.

The court dealt with three remaining matters: whether material concerning separate whistleblowing proceedings should remain in witness statements; whether the defendant should be restrained from relying on a document known as the Synopsis and whether related emails should be inspected; and whether redacted notes and minutes of company meetings could be withheld by litigation or without-prejudice privilege.

1. Whistleblowing evidence. The substance of the claimant’s whistleblowing allegations fell outside the preliminary issue and was struck out from the relevant witness statements. The first sentence of one paragraph was retained because removing it would leave an incomplete and unfair account of a conversation. The defendant’s responsive evidence on the substance of the allegations was excluded, although the two witnesses to the conversation could address whether it amounted to whistleblowing.
2. The Synopsis. The claimant’s application to restrain reliance on the Synopsis was refused. Confidentiality is a precondition to privilege and is assessed by reference to a reasonable expectation of privacy. The claimant had signed an IT policy stating that emails on the company system were company property and subject to access and monitoring. The Synopsis was created at work, using company information and systems, stored on central servers, and accessible to the claimant’s assistant. It was therefore not confidential as against the defendant, or had lost confidentiality when processed on the defendant’s IT system.
3. Equitable restraint. Applying the principles identified in ISTIL Group Inc v Zahoor [2003] EWHC 165 (Ch), the emergence of the truth alone did not outweigh privilege. Nevertheless, the claimant’s starkly inconsistent accounts and attempt to avoid cross-examination would have justified refusing equitable relief on clean-hands grounds even if the Synopsis had been confidential and privileged.
4. Inspection and waiver. By describing the contents of the 6 August email as the Synopsis in order to establish privilege, the claimant deployed its contents and waived privilege in that email. The 11 August email was merely mentioned in narrative and was not deployed. The defendant was therefore not entitled to inspect the latter email on that ground.
5. Meeting notes and minutes. The defendant’s redactions were impermissible. The advice concerning the exercise of discretion under the schemes and the claimant’s prospects of litigation formed one transaction. Partial disclosure of the favourable advice constituted selective waiver and collateral waiver extended to the remainder. The same result followed because litigation was not the sole or dominant purpose of the withheld material and the disclosed references to the value of the contemplated claim revealed litigation advice. The defendant was ordered to disclose the withheld material.