In Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs – Lawtel 19.12.08 the TCC was required to determine whether the Claimant company was required to give disclosure of particular documents, which would otherwise be covered by legal advice privilege, in proceedings against the Defendant secretary of state.
The Claimant had issued proceedings on the grounds that an agreement entered into as a result of a settlement brought about by mediation should be set aside for economic duress. The parties had agreed on the documents to be disclosed, but the secretary of state claimed that the Claimant should also give disclosure of particular documents that comprised certain legal advice given to it, its officers and its managing director. The secretary of state alleged that the Claimant's claim to set aside the mediation settlement because of economic duress led to an implied waiver of any legal privilege because the state of mind of the managing director, who had acted on behalf of the Claimant, was put in issue. The Claimant stated that there was nothing in the claim for duress that gave rise to an implied waiver, and that therefore it could maintain its claim to legal advice privilege. The secretary of state submitted that there was an implied waiver when a material fact, such as the state of mind, was put in issue in proceedings.
The TCC held that the Court of Appeal’s decision in Paragon Finance Plc (formerly National Home Loans Corp) v Freshfields (1999) 1 WLR 1183 overruled the whole of the decision in Hayes v Dowding (1996) PNLR 578 with the effect that the implied waiver of legal advice privilege over communications between a party and his solicitor that existed where there were proceedings between a client and the solicitor in question did not apply to cases not involving legal advisers.
It also held that there is no general principle of English law that privilege in documents is waived by putting in issue allegations to which the privileged documents are relevant.