A Privilege Worth Mentioning

Witness statements often refer to documents. Usually, the documents referred to have previously been made available to the opponent on disclosure or, if they have not previously been disclosed, they are exhibited to the witness statement. Sometimes a party refers a document in his or her witness statement but refuses to make it available to the opponent. This can lead to issues about the opponent’s right to inspect the document. A recent case deals with a new situation.

It is trite in law that a party can require disclosure of a document mentioned in pleadings or witness statements. The relevant rule is CPR 31.14. What if there are multiple proceedings between the same parties involving overlapping allegations? Is a party entitled to disclosure of document mentioned in a witness statement made by the opponent in the other proceedings, assuming production within that other proceedings is, for whatever reason, no longer available?

The answer is provided in the recent case of OJSC TNK-BP Holding v Beppler & Jacobson Limited & others (2012) EWHC 2596 (Ch). Briefly, the Claimant sued the second defendant employee and various other parties for receipt of large sums by way of corrupt payments. The employee defendant claimed that the allegations were motivated by the fact that he had evidence of corruption and wrongdoing on the part of the Claimant and that the proceedings were brought to suppress the evidence he had. The Claimant brought 2 separate proceedings – without notice injunction proceedings (“document claim”) to restrain disclosure of documents by the defendant and fraud proceedings (“fraud claim”).

In the document claim, an earlier witness statement of the Claimant mentioned a report produced by its legal team that the defendant employee had taken an $8m payment from a company. The witness statement went on to say that the report was a privileged document and therefore not exhibited to the witness statement.  The defendant employee applied, in the fraud claim, for disclosure of the report on the basis that it was “mentioned” within rule 31.14. The Claimant resisted on the basis that there was no mention of the report within any statement of case or witness statement in the fraud claim and therefore no basis for a CPR 31.14 order. Furthermore, there was no waiver of privilege for the purpose of the fraud claim as the document had not been deployed in evidence in the fraud claim.

Mr Justice Arnold agreed with the Claimant and held that the right to inspect document mentioned in pleadings, witness statement, witness summary, affidavit or expert report under CPR 31.14 is one that applied in respect of those classes of documents in the proceedings in question and that it does not provide any basis for seeking inspection of the documents in other proceedings even if the other proceedings involve the same parties and are proceedings concurrently with the instant proceedings and even if those other proceedings involved overlapping allegations, as in this case.

So, the defendant employee’s application in the above failed because the mention relied upon was in a witness statement in different and separate proceedings and, given this, it was not necessary for the court to consider the privilege question.

On the privilege question, it is worth noting the Court of Appeal decision in Expandable Limited & another v D Rubin (2008)EWCA Civ59, a case in which this firm acted. In that case, the claimant sought inspection under CPR 31.14, of a letter to Mr Rubin by his solicitor on the basis that Mr Rubin mentioned it in a witness statement as follows:

“… I think it right to draw the Court’s attention to the fact that after Mr Zaidi had interviewed Mr Clarke he [Mr Zaidi] wrote to me enclosing a copy of his note of the meeting and drawing my attention to the discrepancies…….”

The claimant in Expandable Limited suggested that privilege was waived by mention of the letter in Mr Rubin’s statement. The Court of Appeal, however, took the view that the fundamental protection of privilege was not automatically abandoned by the mere mentioning of it. It held that although the solicitor’s letter was mentioned (by the expression “he wrote to me”) in Mr Rubin’s witness statement, privilege for it was not thereby automatically and absolutely lost.

Conclusion

Under CPR 31.14, there is a right to inspect a document mentioned in witness statement etc. However, it is not an absolute right. Inspection may be refused on the grounds of privilege. A mere mention of a privilege document does not necessarily result in a lost of privilege, but privilege may be waived by deployment of the contents of a privileged document. In multiple proceedings between the same parties, a party may not be entitled to inspect a document referred to in a witness statement etc filed in separate proceedings if the document is not mentioned or deployed in the witness statement etc. in the instant proceedings.

If you have any questions please contact Edwin Coe Litigation & Dispute Resolution team.

If you aren’t receiving our legal updates directly to your mailbox, please sign up now