Henderson and Jones Limited v David Jason Ross & Ors.

Privilege is waived only where a party refers to privileged material and relies on it to support or advance its case on an issue for decision. A narrative reference to legal advice, or a response denying an opponent’s assertion about privileged contents, ordinarily does not amount to voluntary deployment. The inquiry is objective, contextual and fact-sensitive; the distinction between the content and effect of advice is not applied mechanically.

Where privilege has not been waived, a request for further information cannot be used to obtain or circumvent privileged information. Such a request must also be necessary, proportionate, concise and sufficiently precise.

The claimant, as assignee of claims arising from a corporate restructuring, alleged that Barclays Bank plc had dishonestly assisted breaches of fiduciary duty and other wrongdoing. Barclays relied on witness evidence from Mr Sweeney, who referred to legal advice from Eversheds and stated that there had been nothing to put him on alert.

The claimant applied for disclosure of the advice, alleging waiver of privilege, and separately sought further information under CPR Part 18 concerning whether the advice referred to balance sheets attached to an email. The court had to decide whether privilege had been waived and whether the requested information should be ordered.

1. Waiver of privilege. The court accepted that waiver requires a sufficient reference to privileged advice and reliance on that reference to support or advance the party’s case. A merely narrative reference is insufficient. The inquiry is fair, objective, contextual and fact-sensitive. A reference to the effect or conclusion of advice may suffice, but the content/effect distinction is not decisive when applied mechanically. The principles were drawn principally from PCP Capital Partners LLP v Barclays Bank plc [2020] EWCH 1393 (Comm), Digicel v Cable & Wireless [2009] EWHC 1437 and Brennan v Sunderland City Council [2009] ICR 470.
2. Mr Sweeney’s reference to Eversheds’ advice was made in response to the claimant’s pleaded assertion about the contents of a privileged email. Applying PJSC Tatneft v Bogolyubov [2021] 1 WLR 1612, Barclays was entitled to deny that assertion without waiving privilege. The further references to professional advisers and the absence of anything putting Mr Sweeney on alert did not identify or rely on the legal advice sufficiently to constitute waiver. The disclosure application was therefore dismissed.
3. Further information. CPR Part 18 could not be used to circumvent unwaived privilege. The information sought was constitutive of the privileged advice. In any event, it was neither necessary nor proportionate, and the request was insufficiently concise and precise. The threshold identified in Al Saud v Gibbs [2022] 1 WLR 3082 was not met.
4. Both applications were dismissed. The claimant remained able to cross-examine Mr Sweeney about the balance sheets and their effect on his state of mind without invading privilege.