David Emanuel Merton Mond v Insolvency Practitioners Association

Summary judgment is inappropriate where the limits of an express waiver of legal professional privilege raise developing and genuinely arguable questions about the relationship between different stages of a disciplinary or litigation process.

An express limitation is a material circumstance, although it is not necessarily conclusive. A connection between the stage at which privileged material was disclosed and a later stage is insufficient by itself to extend the waiver. The court must examine whether refusing disclosure at the later stage would prevent the proper operation of the relevant procedure. Where the later hearing can proceed without the material, and the waiver’s scope depends on disputed factual and evaluative matters, the claim ordinarily has a real prospect of success and should proceed to trial.

The claimant, a licensed insolvency practitioner, challenged disciplinary findings made by the Insolvency Practitioners Association. On appeal, he disclosed privileged communications with former counsel expressly for the limited purpose of establishing that his disciplinary hearing had been procedurally unfair. The appeal succeeded and the matter was remitted to a differently constituted disciplinary committee.

The claimant later sought declarations that privilege remained available for the remitted hearing and that the defendant’s legal team should not use the material. The defendant offered undertakings to destroy and not deploy the material, subject to exceptions, and applied for summary judgment under CPR r.24.2. The issues were whether the waiver extended to the remitted proceedings and whether the declarations would have practical utility.

1. Application dismissed. The claimant had a real prospect of establishing that the expressly limited waiver did not extend to the remitted disciplinary hearing. The defendant’s alternative argument concerning practical utility also failed.
2. Under CPR r.24.2, summary judgment requires both no real prospect of success and no other compelling reason for trial. The court may decide a short and clear point of law, but the present questions were not short or clear-cut.
3. The authorities disclosed different strands of the law on limited waiver. An express limitation, objectively construed, is an important circumstance. The fact that two stages form part of a connected process does not automatically make disclosure at the first stage a waiver for the second. The court must carefully examine how disclosure at the earlier stage bears on the proper operation of the later stage.
4. The preliminary appeal concerned the claimant’s right to a fair process and sought to restore the position he would have occupied had he received independent advice. It was seriously arguable that the privileged material was not deployed on the merits in the same way as material used to obtain an interlocutory advantage. The remitted disciplinary hearing was capable of proceeding without it, unlike the statutory sanction stage considered in Scottish Lion.
5. Material questions requiring fuller evidence and argument included the purpose and deployment of the disclosure, the relevance of the material to the remitted hearing, the significance of earlier inaccurate evidence, whether the two proceedings formed one composite process, and the relevance of post-disclosure events. These matters should be determined at a final hearing.
6. The declarations could have practical utility. A ruling on whether privilege was maintained could assist the disciplinary committee in deciding whether the defendant’s existing legal team could act. It could also affect whether any later deployment by the claimant triggered wider waiver under ordinary cherry-picking principles.

• Insolvency Practitioners Association Appeals Committee: allowed the claimant’s preliminary appeal on procedural fairness, set aside or required the setting aside of the disciplinary orders, and remitted the matter to a differently constituted disciplinary committee.
• High Court: Cotter J upheld the claimant’s judicial review challenge to the Appeals Committee’s decision concerning costs.
• High Court (Business List): dismissed the defendant’s summary judgment application.