Alexander Aslani v Paulina Sobierajska

A party waives legal advice privilege where they refer to the substance or gist of legal advice, rather than merely its effect, and rely on that reference to advance their case on an issue for determination. Whether a reference concerns content or effect must be assessed contextually and with regard to the purpose of the reliance. Fairness is the underlying principle, but waiver is not established by fairness alone. A reference to advice does not advance a service issue where service is independently established. It may, however, advance a case on state of mind and penalty after breach has been proved. The court may therefore defer a waiver declaration until the relevant breach and any sentencing stage have been established.

The claimant brought libel proceedings against the defendant and obtained judgment, damages, an injunction and associated orders from Saini J. He subsequently issued an amended committal application alleging breach of that order.

The claimant also sought specific disclosure and permission to cross-examine the defendant about legal advice mentioned in her witness statement. The defendant said that the advice concerned personal service, her understanding of the order, and its potential consequences. The preliminary issue was whether those references waived legal advice privilege, and whether disclosure should be ordered before the threshold issues in the committal application had been determined.

1. Adjournment. Relief from sanctions was granted for the defendant’s late witness evidence under CPR r 3.9(1), applying the guidance in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Denton v TH White Ltd [2014] EWCA Civ 906. The evidence was relevant and materially assisted determination of the principal issues. Fairness nevertheless required the committal hearing to be adjourned.
2. Waiver test. Following PCP Capital Partners LLP v Barclays Bank Plc [2020] EWHC 1393 (Comm), waiver requires both a reference to the content or gist of legal advice, rather than merely its effect, and reliance on that reference to support or advance the party’s case on an issue for determination. The content/effect distinction must be applied contextually and with regard to the purpose of the reliance. It is an acutely fact-sensitive exercise. Fairness underpins the doctrine, but waiver is not determined simply by an appeal to broad fairness.
3. The defendant’s references in paragraphs 29 and 68 of her witness statement concerned the content of legal advice. The reference in paragraph 29 could support a defence based on invalid service, but it did not advance that issue because the validity of service had to be determined independently of the advice. The same reference could become relevant to whether any breach was intentional or knowing, but only at the sentencing stage if valid service and breach were established.
4. The reference in paragraph 68 advanced the defendant’s case about her understanding of the order, her knowledge of it and the consequences of breach. That could justify waiver for sentencing purposes, but fairness did not require a waiver declaration before breach had been established and sentencing had been reached.
5. The specific disclosure application was dismissed. No declaration of waiver and no order for specific disclosure was made at that stage. The dismissal was without prejudice to renewal if the proceedings reached sentencing.

This was a first-instance decision on a preliminary issue arising within committal proceedings. The judgment records that Saini J had previously made the relevant order in [2021] EWHC 2127 (QB); that decision was not under appeal in this judgment.