E20 STADIUM LLP & Anor v ALLEN & OVERY LLP

The scope of a waiver of legal professional privilege is determined objectively by identifying the transaction or issue in respect of which the privileged material was deployed. The court must consider what the waiving party was seeking to disclose and the purpose of the disclosure. Waiver does not extend automatically to all advice or documents relevant to the wider dispute. Fairness and the need to avoid misleading the court may require further disclosure where the material disclosed forms part of a larger picture. A proposed variation to an order for Extended Disclosure must satisfy the requirements of paragraph 18 of PD51U, including necessity, reasonableness and proportionality.

The claimants had given limited disclosure of privileged documents responsive to Issues 29 and 30 in the Disclosure Review Document. The defendant sought a declaration that privilege had been waived over all legal advice obtained in connection with the seating-capacity dispute and related proceedings, together with wider disclosure and additional orders concerning litigation privilege.

The court considered whether the waiver extended beyond Issues 29 and 30, whether fairness required further disclosure, whether the defendant had established grounds for varying the Extended Disclosure order, and whether there had been any general waiver of litigation privilege.

1. Scope of legal advice privilege waiver. The court applied the principles identified in PJSC Tatneft v Bogolyubov and the authorities discussed there. The relevant transaction or issue was to be determined objectively, but the purpose of the disclosure was an important consideration. The transaction was not all legal advice received in relation to the wider West Ham dispute or proceedings. The waiver was intended to extend only to Issues 29 and 30.
2. Fairness. Fairness and the need not to mislead could require further disclosure where the disclosed material formed part of a larger picture. The claimants’ offer to search for and disclose significant “key” advice relevant to Issues 29 and 30 closed out any demonstrated unfairness. The defendant had not shown that the proposed disclosure was partial or selective in a manner requiring a wider waiver.
3. Additional disclosure. The defendant’s proposed order extended beyond the agreed focus on advice upon which the boards relied and beyond the claimants’ offer of key advice. Mere relevance to the defendant’s case did not justify that extension. No application had been made under paragraph 18 of PD51U, and in any event the defendant had not shown that the additional material was necessary for the just disposal of the proceedings or reasonable and proportionate.
4. Litigation privilege. The court accepted that disclosure of documents before 31 August 2016 could not amount to waiver of litigation privilege. There had been no general waiver. No further order was required because the parties’ legal representatives were already subject to the duty in paragraph 3.2(3) of PD51U to liaise and co-operate in conducting disclosure reliably, efficiently and cost-effectively.
5. The privilege aspects of the defendant’s application were therefore refused, subject to the parties drawing up an agreed order. Costs were reserved for oral submissions at the adjourned hearing.

First-instance decision. No appellate history is stated in the judgment.