Court considers waiver of privilege point

If a privileged document is referred to in a pleading (but not quoted in full), then privilege will not have been waived. However, if the document is relied on, there will have been a waiver and the privileged document can be inspected by the other side. The short point considered in this case is whether there has been a waiver of privilege where a party decides to no longer rely on a privileged document and amends its pleading. Although this point has been previously considered in various textbooks, Birss J confirmed here that, if the amended pleading is permitted, "no waiver will have taken place merely by virtue of having been pleaded before". That principle was said to derive from the nature of a pleading (which is to set out the case a party intends to make at trial). Here, an amended defence had removed a plea which had previously put in issue a matter which had led to a waiver of privilege – accordingly, the waiver would not now take place.