Paul Clements v Adam Frisby

A party waives legal professional privilege where it relies on the substance or effect of privileged advice to advance its case on an issue the court must decide. The distinction between the contents and effect of advice is contextual and fact-sensitive. A merely narrative reference ordinarily does not waive privilege. Once waiver is established, its scope is defined objectively by the relevant transaction and extended only where fairness requires further disclosure. Any disclosure order under CPR PD 57AD must be reasonable and proportionate.

The claimant brought proceedings concerning his alleged interest in a fashion business. The defendant relied on the claimant’s delay in pursuing the claim. In a witness statement, the claimant said that his solicitors had taken time to progress the claim because they considered the business insufficiently valuable or not worth pursuing.

The defendant applied under CPR PD 57AD for further disclosure, contending that the statement waived privilege in advice and documents explaining the delay. The issues were whether privilege had been waived, the scope of any waiver, and whether further disclosure was reasonable and proportionate.

1. The claimant’s reference to his solicitors’ view that the business did not appear valuable or worth pursuing referred to the content of privileged material. He continued to rely on that material to explain the alleged inactivity and to advance his case on an issue for disclosure. Privilege was therefore waived.
2. The contents/effect distinction is not mechanistic. The court must consider the material referred to, the purpose of the reliance, whether it was deployed to advance the case, and the context. Reliance and purpose are central to the question of waiver.
3. The relevant transaction was correspondence and other documentation concerning the solicitors’ view that the business was not valuable or worth pursuing and that this caused delay. The waiver did not extend to every reason why the claim was not progressed. Fairness did not require wider disclosure, since no further specific reason was relied upon and a broader order would confer a largely speculative advantage.
4. The application fell under paragraph 17 of CPR PD 57AD rather than paragraph 18. Subsequent developments had revealed inadequate compliance with the existing extended disclosure order. Further disclosure was reasonable and proportionate, having regard to the importance of the issue and the allegation of fraud. Limited disclosure and further searches were ordered.