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 proper advice, the developer would not have purchased the property.
Held:
Dillon LJ, adopted the formulation of the scope of waiver set out by May J at first instance: ‘A client who sues his solicitor invites the court to adjudicate the dispute and thereby, in my judgment, waives privilege and confidence to the extent that is necessary to enable the court to do so fully and fairly in accordance with the law including the law of evidence. I suspect that at the fringes each case will depend on its own facts. Normally the waiver will extend to facts and documents material to the cause of action upon which the plaintiff sues and the defendant’s proper defence to that cause of action. The bringing of a claim for negligence in relation to a particular retainer will normally be a waiver of privilege and confidence for facts and documents relating to that retainer, but not without more for those relating to other discrete retainers’ Dillon LJ then added: ‘The waiver can only extend to matters which are relevant to an issue in the proceedings and, privilege apart, admissible in evidence. There is no waiver for a roving search into anything else in which the Solicitor or any other solicitor may have happened to have acted for the clients. But the waiver must go far enough, not merely to entitle the plaintiff to establish his cause of action, but to enable the defendant to establish a defence to the cause of action if he has one. Thus, it would extend to matters under earlier retainers, as in the hypothetical example I have given, which established that the experience of the client, was, to the knowledge of the solicitor, such that the solicitor was not in breach of duty as alleged.’
Russell LJ expressed the test: ‘by bringing civil proceedings against his solicitor, a client impliedly waives privilege in respect of all matters which are relevant to the suit he pursues and, most particularly, where the disclosure of privileged matters is required to enable justice to be done. This is another way of expressing the view that May J expressed in his judgment in the passage to which Dillon LJ has referred.’
Farquharson LJ said: ‘For my part, I would have difficulty in holding that the defendants should, as a matter of principle, be prevented from adducing evidence which is relevant to that issue. A proper interpretation of the waiver in this case is, in my judgment, one that embraces not only the documents and advice arising from the Heligan Manor transaction, but also documents or information otherwise subject to privilege which are relevant to the issues between the parties and it would be unfair to exclude.’
Judges:
Dillon, Russell, Farquharson LJJ
Citations:
[1993] 1 WLR 94
Jurisdiction:
England and Wales
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 – 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 – Hayes v Dowding 1996
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 . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Legal Professions
Updated: 08 May 2022; Ref: scu.521200