In Expandable v Rubin – Butterworths Law Direct 11.2.08 the Court of Appeal gave useful guidance on when a document is ‘mentioned’ in a witness statement for the purposes of CPR 31.14 and whether such mention means that privilege in such document is automatically waived.

CPR 31.14, so far as is material, provides: '(1) A party may inspect a document mentioned in – (a) a statement of case; (b) a witness statement; (c) a witness summary; or (d) an affidavit... (2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings'.

In this case the reference in the witness statement was 'wrote to me enclosing a copy of his note of the meeting and drawing my attention to the discrepancies'.

It was held that this was sufficient to constitute a ‘mention’ of the document for the purpose of CPR 31.14. The making of the document itself was the direct subject matter of the reference and this amounted to the document being ‘mentioned’. There could be no uncertainty as to the writing of which the witness statement had made mention. The word "mentioned" was as general as could be. The test was not intended to be a difficult one. The document in question did not have to be relied on, or referred to in any particular way or for any particular purpose, in order to be mentioned.

However, if r.31.14 provided for the automatic and absolute waiver of privilege as a result of the mere mention of documents in statements of case etc, that would be a significant change from the previous law. There was no good reason or explanation for that change. It was held that the new CPR did not lead to the automatic abandonment of the protection of privilege by the mere mentioning of documents. The Claimants were unable to provide a solid, if any, reason why the drafters of the CPR, in contra-distinction to the previous law, should have decided to require the automatic and absolute waiver of privilege as the price for the mere mention of documents in statements of case etc. It was held that there was nothing in r.31 itself to explain that change of philosophy. Ultimately there was no sufficient reason, especially in this context, why CPR 31.19 should not be read as having general application, whether or not a previous rule within CPR 31 should have referred expressly to a right to object to inspection or should have expressly cross-referred to it. CPR 31.19(4) (b) appeared to be well designed for the situation where disclosure was made by mentioning a document within CPR 31.14. Accordingly what might appear to be an "absolute" right to inspect for the purposes of r.31.14 was in fact a qualified right, by reference to r.31.3.

[CPR 31.3 provides: ‘(1) A party to whom a document has been disclosed has a right to inspect that document except where - … (b) the party disclosing the document has a right or a duty to withhold inspection of it.’

CPR 31.19 provides: ‘(a) A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest… (3) A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document must state in writing – (a) that he has such a right or duty; and (b) the grounds on which he claims that right or duty. (4) The statement referred to in paragraph (3) must be made – (a) in the list in which the document is disclosed; or (b) if there is no list, to the person wishing to inspect the document.’]