Lalana Hans Place Ltd v Michael Barclay Partnership LLP

A late request for further information should not be refused solely because of delay where it concerns an issue relevant to the fair disposal of the trial and can be answered without jeopardising the trial date or imposing an unfair burden. Information about whether a litigation expert’s advice was relied upon or taken into account in advice given by another expert may be relevant to the factual basis of the claim. The request for information should be dealt with separately from privilege and waiver. A party required to answer may identify and maintain any properly available claim to privilege. Advice given by a litigation expert during contemporaneous decision-making may, depending on the facts, be factual evidence rather than privileged litigation material.

The claimant brought a claim against engineering consultants concerning the alleged inadequate design of basement walls and the cost of remedial works. The claimant relied on advice given by WSP, checking engineers, while also instructing Mr de Silva as a litigation expert. The defendant applied shortly before trial for further information about Mr de Silva’s involvement in the decision to carry out the remedial works, including his communications with WSP and the claimant’s project managers.

The claimant objected on grounds of lateness, relevance and litigation privilege. The central issues were whether the request concerned a relevant matter and whether privilege or waiver could prevent the claimant from answering it.

1. The application was granted. The claimant was required to answer the request for further information. Any later dispute about privilege or waiver could be addressed separately at the start of the trial.
2. The application was late and should have been made at or before the pre-trial review. Delay was not, however, decisive. The relevant questions were whether the request concerned an issue material to the fair disposal of the trial and whether compliance would jeopardise the trial date or impose an unfair burden. The request could be answered comfortably as part of the claimant’s existing trial preparation.
3. The request was relevant. The claimant’s pleaded case was that the remedial works were undertaken on the basis of WSP’s advice. Whether WSP had relied on, or taken into account, Mr de Silva’s views could assist in establishing what WSP’s advice was and the basis on which it was given. The contemporaneous documents made it at least arguable that WSP had sought to align its views with Mr de Silva’s advice.
4. The court did not determine privilege on the application. The request for information and the questions of privilege and waiver were distinct. Privilege could be asserted in the claimant’s answer and then determined by reference to a clearly stated case.
5. Depending on the facts, advice given by a litigation expert during the contemporaneous decision-making process may be relevant factual material and may be open to cross-examination: see McGlinn v Waltham Contractors Limited [2007] EWHC 698 (TCC). Similarly, investigation and witness-interview material obtained by a litigation expert may fall outside privilege.
6. The claimant remained entitled to decide whether to waive privilege. A proper claim to privilege could not be criticised and could not support an adverse inference, following Edwards-Tubb v J D Wetherspoon PLC [2011] 1 WLR 1373.