Regina v Secretary of State for Transport ex-parte Factortame and Others: CA 1988

The Secretary of State was willing to make legal advice given to him available on the grounds that privilege had been waived, but not advice after a particular cut off date. The claimants were dubious as to whether the privilege had been properly claimed and sought an order for disclosure of edited documents in order to determine that question.
Held: Auld LJ referred to Nea Karteria and said: ‘Of course, the scope for unfairness depends on the breadth of the matter in issue or their severability if more than one, and on the exact relationship and/or relevance to such issue(s) of the documents respectively disclosed and sought to be withheld. It may or may not be that partial disclosure of documents going to a matter or matters in issue, say in an exchange of correspondence with legal advisers, would be unfair.
Much depends on whether the party making partial disclosure seeks to represent by so doing that the disclosed documents go to part or the whole of an ‘issue in question’, the expression used by Mustill J in the passage from his judgment in Nea Karteria that I have cited. The issue may be confined to what was said or done in a single transaction or it may be more complex than that and extend over a series of connected events or transactions. In each case the question for the court is whether the matters in issue and the document or documents in respect of which partial disclosure has been made are respectively severable so that the partially disclosed material clearly does not bear on matters in issue in respect of which the material is withheld. . . .’
Auld LJ, Popplewell LJ
[1989] 2 CMLR 353
England and Wales

Cited by:

  • Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
    No Waiver for disclosure of Advice
    EAT PRACTICE AND PROCEDURE: Admissibility of evidence
    The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
    [2008] UKEAT 0349 – 08 – 1612, [2009] ICR 479

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Updated: 07 December 2020; Ref: scu.344016