Frasers Group plc v Saxo Bank A/S & Anor

Communications between solicitors and instructed experts are generally protected by litigation privilege. Civil Procedure Rules 1998, rule 35.10(4), creates a limited exception for instructions whose substance should appear in an expert’s report, where there are reasonable grounds to consider the report inaccurate or incomplete. Guidance restricting lawyers’ involvement in expert discussions does not, by itself, remove privilege. Disclosure requires waiver or a statutory exception. Where waiver has not been properly argued, the court should avoid a final determination and may adjourn the issue to the trial judge.

The claimant applied for disclosure of communications between Morgan Stanley’s solicitors and its experts concerning the preparation of expert joint statements. The defendants maintained that the communications were privileged and that privilege had not been waived.

The application raised whether the communications fell within the limited exception in Civil Procedure Rules 1998, rule 35.10(4), whether guidance governing lawyers’ involvement with experts affected privilege, and whether the defendants had waived privilege by referring to the communications in correspondence. The application was heard shortly before trial.

1. The application was adjourned to the trial judge. The court considered that the waiver issue had not been properly identified or argued, and that determining it without full submissions would be unsafe. The application could be renewed at the start of trial or after limited expert cross-examination.
2. Communications between solicitors and instructed experts are generally subject to litigation privilege. Under Civil Procedure Rules 1998, rule 35.10(4), instructions whose substance must be stated in the expert’s report are not privileged, but disclosure of the underlying documents requires reasonable grounds for considering the report inaccurate or incomplete. The letter relied on did not even arguably indicate that instructions concerning the experts’ factual assumptions had been given. The issue could be explored at trial.
3. The restrictions in the TCC Guide and the principles identified in BDW Trading Limited v Integral Geotechnique (Wales) Limited did not establish that communications ceased to be privileged merely because solicitors had transgressed guidance concerning expert discussions or joint statements. Any such transgression might affect the credibility of an expert or the admissibility or use of evidence, but did not itself disapply litigation privilege.
4. Legal professional privilege, including litigation privilege, is absolute unless waived or overridden by statute. The criminal or fraudulent purpose exception was not arguably engaged because the alleged conduct was, at most, an ethical or procedural failure rather than dishonest conduct.
5. The court made no final determination on waiver. It identified unresolved questions concerning the effect of an express reservation of privilege and whether a reference to privileged material in solicitors’ correspondence could itself amount to waiver. Reliance on privileged contents, rather than mere reference to the existence of material, was generally required, but the issue was fact-sensitive.