The plaintiff sought damages for personal injury. When his witness was cross-examined on his earlier statement, he agreed he had made the statement. Counsel for the Plaintiff asked to see the whole statement. Counsel for the Defendant objected on the ground of privilege. The trial judge ordered disclosure.
Held: The order was upheld. Denning LJ said: ‘It seems to me that the judge was correct, because although this statement may well have been privileged from production and discovery in the hands of the Transport Commission at one stage, nevertheless when it was used by cross-examining counsel in this way, he waived the privilege, certainly for that part which was used; and in a case of this kind, if privilege is waived as to the part, it must, I think, be waived also as to the whole. It would be most unfair that cross-examining counsel should use part of the document which was to his advantage and not allow anyone, not even the judge or opposing counsel, a sight of the rest of the document, much of which might have been against him.’
Judges:
Denning LJ
Citations:
[1956] 1 QB 187
Jurisdiction:
England and Wales
Cited by:
Cited – Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) 11-Dec-1978
The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material . .
Cited – Loizou, Regina v CACD 14-Jul-2006
The defendant appealed against her conviction for assisting in the disposal of the proceeds of criminal activity, saying that the judge had incorrectly ruled that she had waived legal privilege as to the advice given to her at the police station, . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 01 May 2022; Ref: scu.249944