David Emanuel Merton Mond v Insolvency Practitioners Association

The claim concerned whether a party who had given an express, limited waiver of legal professional privilege to an opponent (for the purposes of an appeal to an Appeal Committee) could later re-assert privilege in respect of the same material at a further disciplinary hearing remitted by that Appeal Committee. The judge considered the applicable summary judgment test under CPR r.24.2 and examined authorities on limited waiver, including B v Auckland District Law Society, Scottish Lion, Berezovsky, Pickett and Belhaj. The court concluded that the law on the limits of an express limited waiver, and whether such a waiver must be treated as extending to subsequent stages of a composite disciplinary process, is developing and fact-sensitive.

Given the express terms of Mr Mond’s limited waiver, the purpose of the disclosure (to vindicate article 6 rights) and a number of countervailing factors, the judge held there was a real prospect that privilege could be maintained for the remitted disciplinary hearing. For these reasons the defendant’s summary judgment application was dismissed.

The claimant, a licensed insolvency practitioner, had disclosed privileged material to the Insolvency Practitioners Association Appeal Committee in support of a preliminary ground of appeal alleging that his former counsel had a conflict that deprived him of an independent defence (an article 6 challenge). He expressly stated the waiver was limited to the appeal. The Appeal Committee allowed the appeal and remitted the matter for rehearing by a differently constituted Disciplinary Committee. The claimant then sought declarations that privilege in the disclosed material had been maintained and that the IPA was under a positive obligation under article 8 ECHR to protect his confidentiality; alternatively he sought a declaration that the IPA could not use the material at the remitted hearing.

The IPA applied for summary judgment dismissing the claim, advancing two principal issues: (i) whether the claimant had any real prospect of establishing that privilege had been maintained despite having disclosed privileged material to the Appeal Committee; and (ii) if privilege had been maintained, whether any declaration would have practical utility given undertakings offered by the IPA to destroy the material and not deploy it unless the claimant did so.

The court framed the issues as: (i) what legal test governs the permissible limits of an express limited waiver of privilege and when countervailing considerations require treating the waiver as extending beyond the stated limits (the court considered the test in Scottish Lion and related authorities); (ii) whether the facts here (an express limited waiver to vindicate article 6 rights, the context of disciplinary and appeals committees, the contents and scope of the disclosed material and subsequent conduct) meant that privilege had been lost for the remitted hearing; and (iii) whether declaratory relief would be practically useful in light of the defendant’s undertakings and the claimant’s contention about the defendant’s legal team having seen the material.

On reasoning the judge held that the law remains unsettled on how to reconcile different strands of authority on limited waiver and that resolution requires careful evaluative judgment about the precise circumstances of disclosure, how the material was deployed before the Appeal Committee, the likely relevance to the remitted hearing and the extent of any inconsistent evidence. Because those matters raised more than a short point of law and required fuller evidence and argument, summary disposal was inappropriate. The judge therefore dismissed the IPA’s summary judgment application so that the disputed issues could be determined at a final hearing. The judge noted that the claimant had a real prospect of showing practical utility for the declarations because the privilege question could bear upon whether the defendant’s present legal team should continue to act, and because the IPA’s undertaking would allow it to use material if the claimant deployed it.

The Defendant’s summary judgment application is dismissed. The court held that the limits of an express limited waiver of legal professional privilege and whether that waiver must be treated as extending to a subsequent remitted disciplinary hearing are fact-sensitive and the authorities give rise to competing strands of law. Those issues raised more than a short point suitable for summary determination; the claimant therefore had a real prospect of success on the issue of maintained privilege and the question should be decided at a final hearing with fuller evidence and argument.

Disciplinary Committee (Decision 4 May 2018) upheld allegations and imposed reprimand, fine and costs. Appeals Committee allowed the preliminary ground of appeal (decision dated 7 October 2019) and remitted the matter to the Disciplinary Committee for rehearing. The claimant obtained judicial review of the Appeals Committee’s costs decision which was upheld by Cotter J on 10 November 2021 (judgment not given with a neutral citation in the bundle). The present summary judgment application against the claimant was heard in the High Court and dismissed on 1 December 2022.