Ana Margetts Simon Hart January 3 2023 Clements v Frisby: unintentional waiver of privilege and its scope RPC | Litigation - United Kingdom Ana Margetts, Simon Hart Litigation IntroductionFactsDecisionCommentIntroductionIn Clements v Frisby,(1) His Honour Judge Cawson KC granted a disclosure application on the basis that the claimant had waived privilege by referring to legal advice in a witness statement. The judge found that the witness statement in question referred to the content of legal advice obtained by the claimant, not merely the fact that legal advice was obtained, or the effect of such advice. Additionally, the claimant had relied on the privileged matters referred to in his witness statement to advance his case. Each of these factors contributed to the judge's finding that a waiver of privilege had occurred. However, the scope of the waiver was limited to documents relating to the specific "transaction"(2) referenced in the claimant's witness statement, which had occasioned the waiver.The judgment is consistent with previous case law(3) dealing with the waiver of privilege and its scope. It is a further example of how in practice the distinction between the content and effect of legal advice is often a grey area and cannot be determined mechanistically.(4)FactsThe claimant, Mr Clements, is a businessman engaged in enterprises that include property investment and development. The defendant, Mr Frisby, is a director of a company called "In the Style Fashion Limited" (ITSFL), which sells women's clothing through an online store.Clements alleged that the share capital of ITSFL is now held by The Style Group Plc, which was admitted to the Alternative Investment Market in 2021. This resulted in the realisation of substantial sums for the shareholders of the company, including Frisby. At the trial of the case scheduled to begin in January 2023, the claimant will seek a declaration that the defendant's interest in ITSFL is held on trust for the claimant.(5)Frisby, on the other hand, asserted that Clements's claim was entirely fraudulent. Frisby claimed that the development and success of the business was entirely based on his own efforts and involved no input from Clements.Disclosure application Two of the disclosure issues in the case related to the alleged failure of Clements to pursue a claim against Frisby for a number of years, which Frisby alleged demonstrated Clements's lack of involvement in the business.In a witness statement, Clements stated that his solicitors "took time to make progress with my claim, primarily because they felt that the business [ITSFL] did not look at all valuable and did not appear to present a target worth pursuing".Frisby alleged that this statement amounted to a waiver of privilege and brought a disclosure application seeking copies of:the documentation in which Clements's solicitors advised that Frisby should not pursue the claim; andany other documents recording the reasons why Clements did not progress his claim earlier.These orders were sought on the basis that such documents should have been disclosed to Frisby upon the alleged waiver of privilege by Clements, as they fell within the scope of an order for extended disclosure made in June 2022. Alternatively, Frisby sought a variation of that court order to provide for the specific disclosure of the documents.DecisionWaiver of privilegeHHJ Cawson KC found that Clements had waived privilege by virtue of the words used in his witness statement on the following bases:The witness statement referred to the content of the legal advice obtained by Clements, not merely the fact that legal advice was obtained or the effect of such advice. Specifically, Clements's witness statement referred to his solicitors' view that the business ITSFL did not look valuable and did not appear to present a target worth pursuing. The judge saw this as going much further than the facts of Digicel v Cable & Wireless,(6) in which no waiver of privilege occurred. In Digicel, the fact of legal advice was referred to, but it was necessary to infer what the content of that advice was (even though the judge in that case noted that the inference was not overly difficult to draw).Clements relied on the matters referred to in his witness statement to advance his case. In particular, Clements relied not just on the fact that his solicitors had certain views that hindered the progress of the claim but also on the content of the advice, which was deployed to provide an explanation for Clements's inactivity. Furthermore, the alleged delay on the part of Clements in bringing the claim against Frisby was relevant to certain explicit disclosure issues in the case.HHJ Cawson KC relied on previous case law which makes clear that the application of the content or effect distinction has to be viewed through the prism of:whether there is any reliance on the privileged material referred to;what the purpose of that reliance is; andthe particular context of the case in question.(7)Scope of waiver The judge found that the scope of the waiver should be limited to copies of the correspondence and other documentation relating to the specific contention in Clements's witness statement regarding the advice he had received from his solicitors.Consistent with previous authorities, the judge found that, in determining the scope of a waiver, it is necessary to first identify the relevant "transaction" which had been referenced, and which occasioned the waiver. In this case, the "transaction" was correspondence and other documentation relating to Clements's solicitors view that the business ITSFL did not look at all valuable, and did not appear to present a target worth pursuing. This is what was specifically relied upon by the claimant to advance his case.The judge found that, contrary to the defendant's submissions, there were no concerns of "cherry picking" or "unfairness" in limiting the scope of the waiver to correspondence and other documentation relating to the view of the claimant's solicitors that ITSFL was not a target worth pursuing. Although the reference to legal advice in Clements's witness statement may be part of a bigger picture involving other (non-primary) reasons as to why his solicitors took time to progress the claim, the judge noted that Frisby had not identified any other specific reasons that were relied upon by Clements in support of his case.The judge commented that any extension of the waiver would give Frisby a "largely speculative advantage" rather than a "principled one". He further stated that "once the genie is let out of the bottle so far as any extension of waiver is concerned, I consider it difficult to see how the limit could be sensibly set as to what becomes disclosable".CommentAs noted above, Clements v Frisby does not depart from established case law regarding the waiver of privilege. However, the case clearly shows that the court will take a fact-specific approach to the distinction between the content and effect of legal advice when determining whether a waiver of privilege has occurred. The distinction is often a fine line and cannot be applied mechanistically. The fact that cases regarding the waiver of privilege arise relatively frequently is perhaps further evidence of the difficulty of the distinction.Parties and their lawyers may generally wish to avoid references to privileged material in witness statements and other documents, as this could open the possibility of an opponent bringing, for example, a disclosure application claiming that privilege has been waived and the privileged material must be disclosed. If for some reason it is strategically desirable to refer to privileged material in a document, describing such material as narrowly as possible may reduce the scope of any potential waiver if such a claim is made by an opposing party.For further information on this topic please contact Ana Margetts or Simon Hart at RPC by telephone (+44 20 3060 6000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.Endnotes(1)  EWHC 3124 (Ch).(2) Clements v Frisby  EWHC 3124 (Ch) at  – .(3) Great Atlantic Insurance v Home Insurance  1 WLR 529; Nea Karteria Maritim Co v Atlantic and Great Lakes Steamship Corp  Com LR 138; Government Trading Corporation v Tate & Lyle International 1984 WL 283024; PCP Capital Partners LLP v Barclays Bank Plc  EWHC 1393 (Comm); PJSC Taftnet v Bogolyubov  EWHC 3225 (Comm),  1 WLR 1612; Marubeni v Alafouzos  WL 408062; Brennan v Sutherland City Council  ICR 479; Digicel v Cable & Wireless  EWHC 1437; Mid-East Sales v United Engineering  EWHC 892; R (Jet2.Com Ltd v Civil Aviation Authority (Law Society intervening)  QB 1027; Fulham Leisure Holdings Limited v Nicholson Graham & Jones  EWHC 158 (Ch);  2 All ER 599.(4) PCP Capital Partners LLP v Barclays Bank Plc  EWHC 1393 (Comm) at .(5) The claimant is also seeking an account of profits; equitable compensation, damages for breach of contract and/or confidence; damages for deceit; all necessary accounts and inquiries, other relief; and costs and interest.(6) PCP Capital Partners LLP v Barclays Bank Plc  EWHC 1393 (Comm) at .(7)  EWHC 1437.