The High Court has rejected a claimant's claim to assert litigation privilege over secret recordings of meetings with potential witnesses (who were former employees of the defendant), because the witnesses were deceived into believing that the meetings were to discuss business opportunities rather than evidence for litigation: Property Alliance Group v The Royal Bank of Scotland PLC  EWHC 3341 (Ch).
The court held that the meetings were not for the dominant purpose of litigation, which is an essential requirement for the protection of litigation privilege. Ordinarily, where a solicitor arranges a meeting with a potential witness to take a proof of evidence, the discussions (and any record of them) will be privileged as they are for the dominant purpose of gathering evidence for use in litigation – regardless of whether the witness has some other motive for agreeing to meet. However, the court held that the present case was different because of the deception practised on the witnesses.
The decision illustrates that the court will not look favourably on efforts to obtain evidence by deceiving potential witnesses as to the purpose of discussions and, depending on the circumstances, may deny the protection of litigation privilege to records of such discussions. James Norris-Jones and Maura McIntosh, a partner and professional support consultant in our disputes team, consider the decision further below.
The claimant's managing director (Mr Russell) arranged meetings with two former employees of the defendant (the "witnesses"), ostensibly to discuss opportunities for the claimant to work with their respective new businesses. In fact, however, Mr Russell's true motive was to seek information and evidence which might assist him in the claim. He deceived the witnesses as to his motives because he did not think they would meet him if he told them the truth. He recorded the meetings, but again without telling the witnesses as he thought they would be more likely to speak openly about the defendant if they believed that they were speaking "off the record".
The claimant asserted litigation privilege over the recordings and transcripts of the meetings. The defendant contended they were not privileged.
The court (Mr Justice Birss) rejected the claim to privilege.
The judge referred to the principle that a verbatim recording or transcript of a non-privileged conversation is not privileged, even if the recording or transcript was made for the dominant purpose of litigation. (The judge commented that he did not have to decide the question of private notes made of conversations, only recordings.)
The question was therefore whether the conversations themselves were privileged, and that turned on whether they were for the "dominant purpose" of litigation. The court had to arrive at its decision as to dominant purpose objectively, taking into account all the evidence including evidence of the actual intentions of the persons involved.
The court held that the meetings were not for the dominant purpose of litigation, and therefore were not privileged, so the defendant was entitled to inspection of the recordings and transcripts.
The judge noted that Mr Russell's purpose in arranging the meetings was to gather evidence for the litigation, whereas the purpose of the witnesses in attending the meetings was to catch up and discuss possible future business. Starting from those facts, he commented, "it does not make a lot of sense to pretend that one can distil a dominant purpose from these two clear but entirely divergent purposes".
The critical point, the judge said, was that Mr Russell actively deceived the witnesses, inducing them to attend and speak freely by misrepresenting the purpose of the meeting when it was obvious that was the only basis on which they would attend. Although ordinarily it is the solicitor's purpose that matters when a meeting is arranged with a potential witness to take a proof of evidence, the existence of the deception distinguished this case from the usual situation. As the judge put it, in these circumstances, Mr Russell could not complain if the court concluded that the fair and correct way of assessing the dominant purpose of the meeting was to look at it from the witnesses' perspective.
The court also considered the appropriate way forward where a party receives an opponent's privileged document in error – here, the defendant only became aware of the recordings and transcripts because they were referred to in a privileged email that the claimant disclosed to the defendant as part of its disclosure in the action. The decision underlines the importance of making an application to court under CPR 31.20 for permission to use such a document before any use is made of it. Use of a document for these purposes is not confined to using it in a court application, but may include for example approaching third parties to discuss the contents of the document or the events referred to in it.