Berezovsky v Abramovich [2011] EWHC 1143 (Comm)

The Respondent had commenced proceedings against the Applicant. It was alleged that the Applicant had intimidated the Respondent into disposing of, at an undervalue, interests in an oil and gas company, of which the Applicant was the legal shareholder.  

The evidence of a former business associate of the Respondent, now deceased, was crucial to the allegations raised. In defending a summary judgment application, the Respondent relied heavily on parts of interviews which this associate had given with the Respondent’s former solicitors. The Applicant sought disclosure of all documents recording or reflecting the content of these interviews, and any conversations between the associate and the Respondent’s former solicitors in relation to the subject matter of the action.  

In granting the application, the judge held that the principle of collateral waiver had been engaged in relation to the documents sought. The Respondent had deliberately chosen, in the context of the summary judgment application, to waive legal professional privilege as regards the content of the interviews by referring extensively to them. In such circumstances it would not be just or fair to permit him, simply because he said he had not decided whether or not to refer to such evidence at trial, to withhold disclosure of the underlying privileged materials relating to the interviews.  

Allowing the Respondent to withhold disclosure would give him an unfair advantage. He would have been able to deploy privileged and possible selective materials in order to surmount the summary judgment hurdle, but would then not be required to give full disclosure of the underlying materials for the purposes of the trial. This would be the case in circumstances where there was no dispute that, if the evidence was deployed at trial, the disclosure would have to be made.