Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd [2003] EWCA Civ 901

Case No A2/03/1277[2003] EWCA Civ 901
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE BUCKLEY)
Venue Royal Courts of JusticeDate Wednesday, 11th June 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE WALLER
Between
DUNLOP SLAZENGER INTERNATIONAL LIMITEDClaimant-v-
Between
J0E BLOGGS SPORTS LIMITEDRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR I CROXFORD QC AND MR D HEAD (instructed by Messrs Addleshaw Goddard, London, EC4) appeared for Applicant.MR D CAVENDER (instructed by Messrs Ashurst Morris Crisp, London, EC2) appeared for Respondent.
J U D G M E N T

LORD JUSTICE WALLER:

This

[1]is an application for permission to appeal an order of Buckley J made on 5th June 2003. I would say straightaway that it has been treated as the appeal, an order having been made by Clarke LJ that this matter should be adjourned to the Court of Appeal, with appeal to follow if permission granted. The reason for the urgency is that a trial is due to commence tomorrow. Two interlocutory applications have been made recently, one in May for leave to adduce certain witness statements. This led to the application by the claimant in this case before Buckley J on 5th June. His order has led to this appeal, and this appeal has been brought on as a matter of urgency.[2]There would be many circumstances in which it would be right to reserve judgment, but urgency requires the matter to be dealt with, and it is right that we do deal with the matter and try to give our reasons as best we can.[3]Buckley LJ directed that the defendant in these proceedings ("JBSL) should disclose certain documents, being documents passing between itself and its solicitors or an expert, all being documents that were material to the information being supplied by the expert in February of this year. Objection was taken to having to produce those documents for inspection by JBSL on the basis that those documents are by their nature privileged. The retort to that claim is that privilege in the documents has been waived.[4]The action concerns the question whether an option was exercised. Relevant to the determination of that issue may be the answer to the question whether a letter dated 17th June 2002 was sent by JBSL to Dunlop. Dunlop have asserted that they never received such a letter, and indeed have contended that the letter was never in fact sent. JBSL, at least when the matter was before the judge, were making part of their case that they could prove that the letter was sent by evidence that the letter was produced on a computer of theirs on the date 17th June 2002. Dunlop have never accepted that, and there was, at least at the time that this matter was before the judge, an issue as to whether that letter was produced on a JBSL computer on 17th June. A hard copy of a letter dated 17th June has been produced by JBSL, but Dunlop say, and indeed plead, that that was only produced on a JBSL computer after 17th June. Indeed, they say that efforts have been made by JBSL to interfere with the computer in order to produce the effect of the letter being sent on 17th June by altering the computer's clock and then running a software package which was intended to eliminate discovery of that interference. Up until May this year, or perhaps a little earlier, both parties were concentrating on one computer, computer No 1. Experts on each side have examined the hard drive of computer No 1. After that inspection Dunlop's expert has produced an expert report, not disclosed, it is fair to say, until 5th May 2003. That report supported the assertion of the letter having been produced on computer No 1 but with an interference with the computer clock and a running of the eliminating software programme.[5]JBSL have not produced an expert's report. Their expert looked at the hard drive of computer No 1. It seems he concluded that there were signs of the clock having been turned back and the software having been used to eliminate the signs that that was so.[6]At some stage the position so far as JBSL were concerned changed dramatically. The change, so far as they were concerned, involved an alteration in the way they were putting their evidence so far as the trial was concerned. They wish to put in a supplemental statement of a Mr Tariq who wished to give evidence that it was not in fact computer No 1 on which this letter had been produced but a different computer, computer No 2. They also wished to put in evidence to provide an explanation of how it was that it might be true that in relation to computer No 1 it might appear that the letter had been produced after 17th June and that software had been run in order to disguise that fact. The explanation of Mr Tariq and Mr Ali combined involved Mr Tariq saying that the letter having been produced on computer No 2 was transferred by a diskette to computer No 1 after the relevant date "to check that the letter was on the diskette". It involved an explanation by Mr Ali as to how he feared, during an exercise that he was conducting in relation to computer No 1, that he might have corrupted the letter on computer No 1 by an accident with the computer caused by him. It involved an explanation as to how he feared that he would be blamed for losing the letter of 17th June, and how he had thus recreated that letter and disguised what he had done by changing the clock on the computer and how he had run software to cover up what he was doing.[7]Clearly the permission of the court was needed if that evidence from Mr Ali was to put in and if a supplemental statement from Mr Tariq was to be put in. So it was that an application was made to Gibbs J to allow further evidence to be put before the court. That application was supported by an affidavit by a lady called Miss Ahmed, in which she sought to explain how it was that JBSL had got themselves into the position that they had and how it was that they had come to approach Mr Ali rather late in the day. It also sought leave to put in statements providing the same explanation at the trial. That is not unimportant. We have been referred to a solicitor's letter prior to the making of that application, and to the application itself and to the order made by Gibbs J. What they demonstrate is that it was the intention of JBSL, in making the application that they did, not only to put the explanation of why they were where they were for the purpose of persuading Gibbs J to make an order allowing in the new evidence, but hardly surprisingly, to seek leave to put in the same evidence at the trial explaining how they were where they were in order to support the evidence of Mr Ali and Mr Tariq. At the forefront of the explanation that they were seeking to give to Gibbs J, and at the forefront of the explanation they were at that stage saying they wished to give to the court at the trial, were certain paragraphs of Miss Ahmed's first statement. Paragraphs 13 and 14 read as follows:
"On 18 February 2003 JBSL's forensic IT expert reported that it had carried out further investigations on the hard drive from Mr Tariq's computer, and that the 17 June 2002 letter may have been created on a different computer. JBSL also discovered that there were two versions of the 17 June letter: the difference between the two being the tenth word in line 1, and that Mr Tariq's computer contained, or had contained, two electronic files with similar names: DSIL 17-06-02 and SSIL 17-0602. In addition, JBSL's forensic IT expert advised that the internal clock of Mr Tariq's may have been turned back."
The actual statement of Miss Ahmed that JBSL were wishing to put before the trial judge is her second statement. That contained in paragraph 3 a reference back to her first statement. Paragraph 3 reads as follows:
"On 18 February 2003, the defendant was informed by its forensic IT expert that the 17 June 2002 letter may have been created on a different computer from Mr Tariq's computer, which had been the subject of a forensic inspection by both the claimant and the defendant in October 2002. At paragraphs 13-15 of my first witness statement I have set out the detail of the revelations that were made during this meeting, in particular, the fact that two versions of the 17 June letter existed and that the internal clock of Mr Tariq's computer may have been turned back."
In addition, JBSL wished to put in evidence a statement from Mr Shami Ahmed. He was the chairman of the defendant company and is described by Mr Croxford QC for JBSL as an important witness, a statement in which he said in paragraph 19:
"On 18 February 2003, the defendant was informed for the first time that the 17 June 2002 letter may have been created on a different computer to Mr Tariq's computer, which had been the subject of forensic IT investigation in September and October 2002. Further, the defendant was informed that Mr Tariq's computer indicated that there were two versions of the 17 June letter and that the internal computer clock may have been turned back. I was shocked to hear about these revelations and asked for an internal investigation to take place in order to get to the bottom of the facts. I believe that a number of employees, third party consultants and contractors were interviewed. To my best recollection, it was suggested by Usmat Ahmed, our Head of Legal, some time during March 2003, that Zubair Ali should be interviewed."
What Dunlop say is that by all those paragraphs in those statements there is a partial disclosure of privileged communications between JBSL's expert and JBSL. Indeed, they say that there is reliance in those paragraphs on material that would otherwise be privileged, being the content of the communication between JBSL's expert and JBSL. Dunlop submit that as a result there has been a waiver of privilege in relation to the matters contained in those paragraphs, and about that there is no real contest. In addition, Dunlop say that the effect of a partial disclosure in reliance on part of privileged communications is that, by implication, the full version of whatever those communications were must now be disclosed.[8]The judge accepted those submissions and ordered disclosure. He did so in what is now accepted to be wider terms than are necessary. It is unnecessary to set out the full terms of his order. The important thing is that he accepted the thrust of those submissions. It is right to say this. Before the judge there was an attempt, if I can put it this way, to partially turn back the clock. Although before Gibbs J the application was to put in the second statement of Miss Ahmed, referring to paragraphs 13 and 14 which have been quoted, when the matter came before Buckley J it was made clear that JBSL no longer intended to call her. However, they maintained, and still maintain, that there is the intention to call Mr Shami Ahmed whose statement contains paragraph 19 which I have quoted.[9]Since the hearing before the judge the case has taken another turn. It is now said by JBSL through Mr Croxford that they do not intend to call Mr Ali whose statement was served, nor Mr Tariq, on whose behalf a supplemental statement was served. The explanation is hardly relevant to what we have to decide, but it is broadly to the effect, as I understood it, that JBSL will not be relying on Mr Ali and Mr Tariq at all. They will seek to prove that any letter that was produced on any particular computer was sent by evidence that the letter was put into the post bag on the relevant day and will seek to rely on the oral exercise of the option. Mr Croxford very properly does not rely on that aspect of turning back the clock as a matter which should affect any decision.[10]The question is: did JBSL waive privilege in at least part of the communications between JBSL and its expert? If so, have they waived privilege by implication in the full communications, however that took place, and should there be an order at this stage requiring full disclosure of the communications taking place at that stage?[11]The authorities in this area are not altogether easy. Mr Croxford drew our attention to, firstly, Government Trading Corporation v Tate & Lyle and then to Marubeni Corporation v Alafouzos. Then he also drew our attention to Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation. If one goes to one of the textbooks, Matthews & Malek, one finds at paragraph 10.17 a summary of the position as those authors see it. First of all, in that paragraph there is the reference to the dictum of Mustill J (as he then was) in Nea Karteria, which provides as follows:
"Where a person is deploying in court material which would otherwise be privileged, the opposite party and the court must have the opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood."
I would describe that as the cherry picking aspect. Then the paragraph reads as follows:
"The key word here is 'deploying'. A mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test. Instead, the test is whether the contents of the document are being relied on, rather than its effect. The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement. Provided that the maker does not quote the contents, or summarise them, but simply refers to the document's effect, there is apparently no waiver of privilege. This benevolent view has not been extended to the case where the maker refers to the document in order to comply with the party's need to give full and frank disclosure, eg on a without notice (ex parte) application."
So it is that the authors correctly identify that the authorities provide for a distinction between a reference to the effect of the document and reliance on the content. Mr Croxford suggests that this is a reference case and not a deployment case.[12]In my view, this is clearly a deployment case. This is a case in which, by the terms of those paragraphs, 13 and 14 in particular, of Miss Ahmed, Miss Ahmed was seeking to refer to the contents of the information that was being supplied by the expert to her in order to seek to persuade Gibbs J to make an order that the further evidence should be allowed to be put in. It is furthermore a deployment case in a different sense. There was an attempt to put in evidence for the purpose of the trial. The evidence for the trial was again evidence of the contents of the information that was being supplied by the expert to JBSL. So there was deployment, at least at the stage when this matter was before Gibbs J, in two senses, both for the purpose of persuading Gibbs J and for the purpose of this evidence being material for the judge to consider at the trial. Mr Croxford has sought to suggest that this evidence was not relevant to any issue at the trial.[13]I have to say that I have never followed that submission. Indeed, the very fact that it was thought appropriate to put this evidence in at one stage of the trial demonstrates its relevance. It was obviously material on which JBSL wished to rely in order to support the version of events that they wished to put before the court of Mr Ali and Mr Tariq. It must be remembered that Dunlop are going to say that this document had been dishonestly produced at some early stage after 17th June. For there not to be a discovery of the explanation as to how the document had been produced until May would need some explanation if Mr Ali and Mr Tariq's explanation was going to be accepted. It was therefore highly material to seek to explain how that had come about by reference, as Miss Ahmed was saying, to the fact that this information had only come to their knowledge through the expert in February 2003.[14]By the time the matter came before Buckley J the evidence of Miss Ahmed was no longer going to be relied on. However, still the evidence of Shami Ahmed was going to be relied on, again demonstrating the relevance of this aspect to the issue that was likely still to be alive at the trial, as to whether this document had been dishonestly produced. The statement of Mr Shami Ahmed relates again to the defendants being informed -- his statement does not say by whom -- but of course the knowledge as to who had informed the defendant had been given by Miss Ahmed, and on any view that information was not itself privileged; and so Mr Shami Ahmed is going to be giving evidence in relation to exactly the same matter but seeking to limit disclosure to what he and Miss Ahmed have chosen. Mr Croxford, as I understood the concession he made, really accepts that there has been a waiver of privilege on certain of these aspects. His only contest relates to whether there should be disclosure of other communications.[15]To answer the question whether waiver of part of a privileged communication waives the complete information, it is that dictum of Mustill J (as he then was) which applies. A party is not entitled to cherry pick, and a party to whom privileged information is provided is entitled to have the full contents of what has been supplied in order to see that cherry picking is not taking place. If this material (paragraphs 13 and 14 of Miss Ahmed's statement) had been evidence given at a trial, there really would be no answer to the point that the full information should be provided in order to make certain that cherry picking is not taking place.[16]There are only two points here which might provide for a different answer. The first is that this information was deployed at an interlocutory stage, and the second is that, insofar as it was being put in witness statements, they have not yet been deployed at a trial. In relation to both aspects, what in essence the submission would come to is that at this stage a party is entitled to preserve its position and wait to see what actually happens at the trial in order to see whether that deployment takes place and whether a waiver takes place at the trial. As it seems to me, there is clear authority for the proposition that, if deployment has taken place at an interlocutory stage and waiver of the privileged material has resulted, then the cherry picking principle applied.[17]It is unnecessary to go through all the authorities. The most formidable authority was the decision of Vinelott J in Derby v Weldon [1991] 1 WLR 660. The most material passage runs from 767H to 668E. It comes to no more than this. If in interlocutory proceedings a party has waived privilege -- in that case that was on a Mareva injunction application -- then, that is a waiver for all purposes and the cherry picking principle applies. Whether that will always be right is a matter that I would reserve for future decisions. It is not necessary to say that that will always be right to dispose of this case. If there is to be an exception to that principle it would need to be framed in the following way. It would need to be argued that since it was only for the purpose of the interlocutory proceedings and in relation to an issue in those proceedings that the waiver had taken place the waiver was in some way limited. That was almost certainly not the position in Derby v Weldon since the conversations did relate to the merits of the case as a whole. In this case, again the waiver that was taking place was not taking place simply in relation to obtaining the order from Gibbs J. The waiver that was taking place was taking place by reference to statements that were to be put in as part of the evidence to go to the trial and relating to the merits at the trial. In my view, it was not legitimate to turn back the clock, even to the limited extent that it was turned back before the judge. In other words, it was too late even then to make it unfair nor to order disclosure. But the point would not have got Mr Croxford home in any event because there was and is an intention to rely on Mr Shami Ahmed's statement as well. In my view, although the judge may have made too wide an order, he came to the correct conclusion in this case. So far as the width of the order is concerned, what should be ordered is that the documents made in or about February 2003, material to what it was that the defendant was informed of by its computer expert as identified in paragraphs 13 and 14 of Usmat, statement 1, should be disclosed. That should exclude advice from the solicitor, i.e. client solicitor advice. I do not pretend to have drafted that with particularity. The important thing is that those documents should be ordered to be disclosed and only those, and not documents to the full width that the judge's order at present directs. I would dismiss the appeal otherwise.

LORD JUSTICE THORPE: I agree. In preparing her witness statements dated 21st and 28th May 2003, Miss Usmat Ahmed might have confined herself to a bare reference to a report from Delta Clinics as a result of which she took steps to prepare statements from additional witnesses and supplemental statements from existing witnesses.But, as paragraphs 13 and 14 of her first statement and paragraph 3 of her second statement demonstrate, she elected to state what may prove to be either the whole contents or the significant contents of the report. As Mr Croxford concedes, the contents of the report were privileged, and their revelation by Miss Ahmed amounts to a waiver of privilege.

[19]Therefore, the principle arises that there should not be a partial waiver lest the waiver be partial in both senses. The safeguard against partiality in the latter sense must be disclosure of the whole of the privileged document or conversation which the contents have revealed. The authorities relied upon by Mr Croxford, namely Great Atlantic Insurance Co & Great Lakes Steamship Corporation, a decision of this court of 6th November 1986, and the Tate & Lyle case, are in my judgment clearly distinguishable on the facts. The factual disputes to be investigated at the trial which commences tomorrow are certainly complex. The judge should have the advantage of surveying the written or minuted oral reports from Delta Clinic to either the defendants or their solicitors in February last. Accordingly, we grant permission but dismiss the appeal. The order below that we uphold has yet to be perfected. It is agreed that it must be redrafted to restrict its effect to documents relating to the communications surrounding the key date in February 2003 and redacting any advice to the defendants.

ORDER

Appeal dismissed.

Cited in 13 later judgments

and 4 more of the most senior