Disputes over the running of a private company had been compromised by the plaintiffs’ solicitors. The plaintiffs sought to upset the compromise on the basis that they had been induced by a misrepresentation. The Defendants sought disclosure of privileged documents, particularly those passing between the plaintiffs and their solicitors.
Held: Jonathan Parker J discussed the judgments in NRG and in Lillicrap and said: ‘As I read the judgment of Dillon LJ, in accepting the judge’s formulation of the scope of the waiver Dillon LJ was accepting (a) that the fact which gives rise to the implication of waiver is the fact that the plaintiff has invited the court to adjudicate on the particular issue and (b) that implicit in that invitation is an acceptance on the part of the plaintiff that in making its adjudication the court must have access to all the evidential material which is required to enable it to do so fully and fairly . . In my judgment the decision in Lillicrap v. Nalder is authority for the proposition that it is not a necessary condition of an implied waiver of privilege by a plaintiff that the documents in question should be privileged as between the plaintiff and the defendant. As I read the decision in Lillicrap v. Nalder, the principles expressed by the Court of Appeal in that case are applicable to privileged communications between a plaintiff and a third party.’
As to Wardrope, he said: ‘Moreover, as I indicated earlier, Derrington J’s decision and his reasoning is, in my judgment, entirely consistent with and covered by the decision of the Court of Appeal in Lillicrap v. Nalder. The same consideration applies, in my judgment, to the decision in the American case of Hearn v. Rhay considered by Colman J in NRG v. Bacon and Woodrow. It appears from the reports of those cases – although I must make it clear that in relation to Hearn v. Rhay I have only seen the report of the NRG case – that the principles of implied waiver based upon the contents of the pleadings in the action are substantially the same in each of the three jurisdictions.’
Judges:
Jonathan Parker J
Citations:
[1996] PNLR 578
Citing:
Cited – Lillicrap v Nalder CA 1993
A property developer sued his solicitor for negligent advice on the purchase of a property. The solicitor wished to rely on previous retainers, in which the developer had ignored advice, so as to challenge the developer’s assertions that, with . .
Cited – Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow Holding 1995
A Dutch corporation had obtained advice from lawyers and other professionals before purchasing share capital in insurance companies. After the purchase the corporation discovered that it was exposed to large losses and began proceedings in . .
Cited – Wardrope v Dunne 1996
(Queensland) Where in his pleadings a party relies upon his state of mind and it would be unfair to permit that party to maintain privilege in respect of communications passing between them and their legal advisers which might bear upon the . .
Cited by:
Cited – Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc); etc v Freshfields (a Firm) CA 11-Mar-1999
A client who sues his former solicitor, waives his legal privilege protection, as regards that legal relationship, but that does not require a waiver also, of other privilege with later solicitors instructed in related matters. Lord Bingham LCJ . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Litigation Practice
Updated: 04 May 2022; Ref: scu.521202
