Holyoake & Anor v Candy & Ors

Collateral waiver is determined objectively by identifying the actual transaction in respect of which privilege was waived. Where the waiver concerns a communication on a particular occasion, it ordinarily extends to the whole of that communication, including inseparable parts, but not to the underlying subject matter or to later communications on the same topic.

Further disclosure may be required where fairness demands it to prevent misunderstanding. That principle does not justify disclosure of all privileged communications concerning the same subject. Later advice may fall within the same transaction where it alters, amplifies or extends the disclosed advice and is properly treated as part of one communication.

The claimants relied in re-examination on privileged emails sent to their lawyers in March and April 2012 to rebut suggestions that allegations of threats had been fabricated. Privilege in those emails was thereby waived.

The defendants applied for disclosure of other privileged communications concerning the alleged threats, including earlier communications forming part of the same factual background and later communications on related matters. The issue was the scope of collateral waiver and whether fairness required disclosure beyond the emails deployed in evidence.

1. Disposition. The application was dismissed except to the limited extent that documents incorporated by reference into the disclosed emails, or forming part of the same communication, had to be disclosed.
2. The court adopted the structured approach in Fulham Leisure Holdings Limited v Nicholson Graham & Jones [2006] EWHC 158 (Ch). The court must first identify objectively the transaction in respect of which disclosure was made. It must then determine whether further disclosure is necessary to avoid unfairness or misunderstanding.
3. The relevant transaction was what the claimant had said in the emails of 29 March and 15 and 16 April 2012, including email 5. It was not all communications with lawyers concerning the alleged threats or their consequences. The purpose of rebutting recent fabrication did not enlarge the transaction.
4. The court distinguished R v Seaton [2010] EWCA Crim 1980. That decision concerned the scope of waiver in the communication given in evidence, not collateral waiver of communications on the same or related topics on other occasions.
5. Following General Accident Fire and Life Assurance Corporation Limited v Tanter [1984] 1 WLR 100, fairness did not require disclosure of later privileged communications concerning the same topic. The ability to waive privilege selectively and the fairness principle are in tension, so predictable, objectively grounded limits were required.
6. Documents referred to in the disclosed emails had to be disclosed where the reference incorporated them by reference. Email 5 and documents forming part of the same extended communication were within the waiver. The principle concerning later advice that alters, amplifies or extends disclosed advice did not require disclosure of every later communication on the same topic.
7. Classes 2, 3 and 4 of the defendants’ request were rejected. The limited disclosure required under class 1 was confirmed.