Pickett v Balkind: the High Court clarifies the rules relating to privilege and waiver

In the recent decision in Pickett v Balkind [2022] EWHC 2226 (TCC), the High Court considered the circumstances in which injunctive relief can be obtained following the mistaken disclosure of privileged documents. The decision provides a useful restatement of the legal principles underpinning privilege in court proceedings.

Factual background

The dispute in this case concerned a claim for damages arising out of the subsidence of the Claimant's residential property, which had allegedly been caused by the roots of the Defendant's neighbouring oak tree. Following a costs and case management conference, the presiding judge made a direction giving both parties permission to appoint experts in the fields of arboriculture and structural engineering. Joint statements of the parties' experts were filed in April 2022, with the trial originally scheduled to take place in July 2022.

In May 2022, the Claimant's solicitor informed the Defendant's solicitor that its expert structural engineer, Mr Cutting, would be unable to give evidence at the trial as listed because he would be undergoing surgery. The Claimant issued a draft application for adjournment, accompanied by a draft witness statement from the Claimant's solicitor. The draft witness statement referred to a letter from Mr Cutting to the Claimant's solicitor; the letter was exhibited to the statement but had, in error, been left unredacted. In addition to explaining his need to undergo eye surgery, Mr Cutting's letter contained information which revealed a potential breach of the expert independence principle under CPR rule 35.3. The unredacted letter was exhibited to the Claimant's application notice filed at court on 1 June 2022.

The parties' applications

On 14 June 2022, the Claimant issued an application notice seeking an injunction to restrain the Defendant from using the 1 June witness statement and Mr Cutting's unredacted letter, on the basis that the letter's inclusion had been an "inadvertent and obvious" mistake. The Claimant's solicitor also explained that Mr Cutting's reference to their "comments" (which implied a breach of CPR rule 35.3) was instead a reference to an "aide memoire" which the solicitor had prepared for him.

The Claimant issued a further application notice seeking permission to put in evidence a supplemental expert report from its expert arboriculturist. This witness statement would replace the arboriculturist's original statement and had the effect of removing all references to a report by "Prior Associates" (Mr Cutting's firm), which had not been disclosed to the Defendant.

The Defendant issued a number of cross-applications in reply.

Firstly, it sought:

permission to deploy the letter from Mr Cutting to the Claimant's solicitor;
an order under CPR rule 35.10(4) asking for the production of the written instructions, comments or aide memoires provided to Mr Cutting; and
permission to cross-examine the Claimant's experts at trial as to the preparation of their joint statements and the completeness of their statements of their instructions.

Secondly, the Defendant sought an order under CPR rule 31.14(2) that the Claimant should allow it to inspect a copy of the Prior Associates report referred to by the Claimant's arboriculturist.

The High Court's findings

The High Court rejected the Claimant's application for an injunction in respect of the deployment of Mr Cutting's letter. In reaching this conclusion, HHJ Matthews drew upon the principles of inadvertent inspection established by Clarke LJ in Al Fayed v Commissioner of Police of the Metropolis [2002] EWC.

Al-Fayed v Commissioner of Police of the Metropolis

Clarke LJ established the following principles relating to CPR rule 31.20:

A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed has been waived.
Where a party has given inspection of privileged documents which they have allowed the other party to inspect by mistake, it will generally be too late for them to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief.
In the absence of fraud, all will depend on the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake.
A mistake is likely to be held to be obvious where the documents are received by a solicitor and:
a) the solicitor appreciates that a mistake has been made before making some use of the documents; or
b) it would be obvious to a reasonable solicitor in their position that a mistake has been made.
Where a solicitor considers whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made.
In both the cases identified in 4) a) and b) above there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief.

Whilst Mr Cutting's letter was not made available pursuant to CPR Part 31, HHJ Matthews agreed with the Defendant's submission that Clarke LJ's principles were still the correct ones to apply. On the facts, the Claimant's solicitor had made a mistake in sending the unredacted letter. However, the Defendant's solicitor did not realise this error; nor was it obvious that an error had been made. The Defendant's solicitor had also relied on the unredacted letter to pursue their legitimate concern that there had been a potential breach of the expert independence principle.

HHJ Matthews further explained that information can be shared with some others on a confidential basis without waiving privilege. However, by disclosing information that is confidential as against an opponent to that opponent, a document loses the quality of confidence necessary to engage the doctrine of privilege in the first place. The Claimant had in effect "deployed" the contents of Mr Cutting's letter by exhibiting it to the witness statement. It did not matter that the letter had been deployed for the limited interlocutory purpose of seeking an adjournment, rather than in respect of the substantive merits of the case.

The Claimant also failed in arguing that there was a justification for separating out the different parts of Mr Cutting's letter. The paragraphs indicating a potential breach of the expert independence principle were less worthy of protection than the paragraphs dealing with Mr Cutting's proposed surgery. Privilege was also waived for the remaining paragraphs which explained Mr Cutting's proposed surgery, as they went to the very heart of the application for an adjournment.

…the first four paragraphs revealed a potentially serious breach of the Technology and Construction Court Guide, which the defendant raised immediately with the claimant, but to which there was no satisfactory response. It would promote a sense of injustice in the defendant to leave that concern hanging, unanswered.

In respect of the Defendant's remaining cross-applications, HHJ Matthews concluded that:

The aide memoire provided to Mr Cutting could not be disclosed to the Defendant. It was impossible for the court to determine the nature of the document from its description alone and HHJ Matthews could not be satisfied that it formed part of the expert's instructions. It would therefore remain privileged until such privilege was waived by the Claimant.
The fact that the aide memoire was privileged would not prevent the Defendant from cross-examining Mr Cutting on it or other communications which went beyond providing facts or factual assumptions for the opinion. The regime under CPR rule 35.10(4) would not affect this analysis.
The conclusion at (ii) would not extend to cross-examination of the Claimant's expert arboriculturist. There was no suggestion of compromised independence here.
The Claimant was ordered to produce the earlier Prior Associates report for inspection by the Defendant. Privilege had been waived in the Claimant's expert arboriculturist's initial report. This is because he had set out a particular conclusion, contained in the Prior Associates report, as a basis for something he said himself (i.e., he had "deployed" its contents).