Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2009] EWHC 1437 (Ch)

[2009] EWHC 1437 (Ch)Case No HC07C01917
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/06/2009
Before
MR JUSTICE MORGAN- - - - - - - - - - - - - - - - - - - - -Between :
Between
Digicel (St. Lucia) Limited (aClaimantscompany registered under the laws of St. Lucia)ClaimantDigicel (SVG) Limited (a company registered under the laws of St.ClaimantVincent & the Grenadines) 3) Digicel Grenada Limited (a company registered under the laws of Grenada)ClaimantDigicel (Barbados) Limited (a company registered under the laws of Barbados)ClaimantDigicel Cayman Limited (a company registered under the laws of the CaymanClaimantIslands)ClaimantDigicel (Trinidad & Tobago) LimitedClaimant(a company registered under the laws ofClaimantTrinidad & Tobago)Claimant7) Digicel (Turks & Caicos) Limited (a company registered under the laws ofClaimantTurks & Caicos) 8) Digicel Limited (a company registered under the laws of Bermuda)ClaimantCable & Wireless PlcDefendantsCable & Wireless (West Indies)DefendantLimitedDefendantCable & Wireless Grenada Limited (a company registered under the laws ofDefendantGrenada)DefendantCable & Wireless (Barbados) LimitedDefendant(a company registered under the laws ofDefendantBarbados)DefendantCable & Wireless (Cayman Islands) Limited (a company registered under the laws of the Cayman Islands)DefendantTelecommunications Services ofDefendantTrinidad & Tobago Limited (a company registered under the laws of Trinidad &DefendantTobago)Defendant- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -Mr Stephen Rubin QC, Mr Huw Davis QC, Mr Stephen Houseman & Mr Rupert Allen (instructed by Jones Day) for Claimants Lord Grabiner QC, Mr Edmund Nourse & Mr Conall Patton (instructed bySlaughter & May) for DefendantsHearing Hearing date: 16 June 2009 - - - - - - - - - - - - - - - - - - - - -Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................MR JUSTICE MORGAN

Introduction

[1]This judgment deals with an application made yesterday by the claimants. The application raised issues as to possible waiver by the defendants of legal professional privilege in relation to certain documents which contained or may have contained legal advice given to the defendants.[2]Yesterday was the 25th day of the continuing trial of this action. I will give a heavily abbreviated summary of what the action is about and what has given rise to the application.[3]In the action, the various claimants claim that the various defendants have committed various unlawful acts in relation to a process which is called “interconnection”. The interconnection in question was to have been between the various defendants' telecommunications networks in various islands in the Caribbean and the telecommunications networks which were at the relevant time or times proposed to be created by the various claimants. The claims made by the claimants include an allegation that the defendants, or some of them, conspired together to injure the various claimants by unlawful means.[4]Among the matters relied upon by the defendants is a contention that if it should be determined at the trial that certain acts or omissions on their part were unlawful, then nonetheless the defendants are not liable in the tort of conspiracy to injure by unlawful means because the relevant defendants genuinely believed at the relevant times that the relevant acts or omissions were lawful.[5]In the written opening submissions served on behalf of the defendants, counsel for the defendants developed the case that:(1) the defendants had the relevant belief as to the lawfulness of their actions; and(2) such a belief prevented the claimants proving a necessary ingredient in the tort of conspiracy to injure by unlawful means or provided a defence to the claimants' allegations of the tort of conspiracy.[6]As a result of the submissions made by both sides in opening this case, it was agreed that both sides would address in their pleadings this question of belief in the lawfulness of the relevant conduct.[7]The claimants have served a re-amended particulars of claim which sets out their contentions that:(1) there was no such belief on the part of the defendants; and(2) any such belief would not prevent the claimants proving all the necessary ingredients of the tort of conspiracy, nor provide a defence in law to the allegation of the tort of conspiracy.[8]The rival case was pleaded in a re-amended defence served by the defendants. It is relevant to refer in particular to what is pleaded in paragraph 88 of the re-amended defence:
"Without prejudice to the burden of proof, insofar as the claimants do identify particular individuals as having the relevant intention that can be attributed to particular defendants, as they should, the defendants' position is as follows: (1). At least each of the following honestly believed, at all times material to the issues in any particular jurisdiction, that there was no obligation upon the relevant defendant in the particular jurisdiction to commence physical interconnection, in particular by ordering equipment and/or commencing civil works, until there was a concluded and/or approved interconnection agreement between the parties: Donald Austin, Clive Batchelor, Geoff Batstone, Errald Miller, John Thompson, Lawrence McNaughton, Rudy Ebanks, Lisa Agard, Carlos Espinal, Kurleigh Prescod. (2). The defendants refer to the witness statements of the relevant individuals cited in this respect, which provide sufficient particulars to enable the claimants to understand the defendants' case. (3). Insofar as it is held that the defendants' failure to order equipment and/or to progress physical interconnection was a breach of duty, the abovementioned individuals' honest belief to the effect that they were not acting in breach of duty is relied upon as showing that there was no intention to injure through unlawful means. (4). At least each of the following honestly believed at all times material to the issues in any particular jurisdiction that there was no obligation in relation to interconnection with Digicel in any particular jurisdiction until Digicel had obtained a licence and/or concession in that jurisdiction: Donald Austin, Paul Barnes, Geoff Batstone, Nigel Fisher, Chris Forrest, Mark Macfee, Lawrence McNaughton, Glenda Medford, John Thompson, Rudy Ebanks, Derrick Nelson, Frans Vandendries, Lisa Agard, Carlos Espinal, Kurleigh Prescod. (5). The defendants refer to the witness statements of the relevant individuals cited in this respect, which provide sufficient particulars to enable the claimants to understand the defendants' case. (6). Insofar as it is held that the defendants' failure to commence negotiations and/or interconnection prior to the award of a licence to the relevant claimant was a breach of duty, the defendants rely upon [the] abovementioned individuals' honest belief to the effect that they were not acting in breach of duty as showing that there was no intention to injure through unlawful means. (7). The defendants do not plead to schedule D, which is not a proper pleading, but argument, and mischaracterises the defendants' position."

The Application

[9]On 11 June 2009 the claimants issued the application which is now before me. Part 3 of the application notice reads as follows:
"The claimants seek an order that the defendants shall give disclosure and inspection of documents constituting or evidencing legal advice which was given to or received by the individuals identified in the draft order attached regarding the lawfulness or otherwise under the laws of St Lucia, St Vincent and the Grenadines, Grenada or Barbados of the defendants' refusal or failure to commence negotiations or progress interconnection with the relevant claimant prior to the formal grant of a licence to the relevant claimant and/or the defendants' refusal or failure to order equipment required for interconnection with the relevant claimant prior to the signing and/or approval of an interconnection agreement between the relevant defendant and the relevant claimant. Alternatively, the claimants seek an order that the defendants shall give disclosure and inspection of documents constituting or evidencing such legal advice which the individuals identified in the draft order attached received from or were directly or indirectly given by Mr Geoff Batstone. "
The ground for the application is that the defendants have waived privilege in such legal advice in order to advance their alleged defence that each of the defendants (through the individuals identified in the draft order attached) held an honest belief at the relevant time as to the lawfulness of their refusal or failure to commence negotiations or progress interconnection prior to the formal grant of a licence to the relevant claimant and/or their refusal or failure to order equipment required for interconnection prior to the signing and/or approval of an interconnection agreement between the relevant defendant and the relevant claimant."[10]The application notice refers to a draft order which is on the basis that the court accedes to the primary head of relief sought by the application notice rather than the alternative head of relief. Paragraph 1(1) of the draft order reads as follows:
"Any documents constituting or evidencing legal advice given to or received by Mr John Thompson and/or Mr Lawrence McNaughton and/or Mr Chris Forrest and/or Mr Paul Barnes and/or Mr Nigel Fisher and/or Mr Donald Austin as to the lawfulness or otherwise of the refusal and/or failure of any of the defendants to commence negotiations and/or progress interconnection [with] any of the claimants prior to the formal award of a licence to the relevant claimant in relation to St Lucia, St Vincent and the Grenadines, Grenada or Barbados."
Paragraph 1(2) of the draft order reads as follows:
"Any documents constituting or evidencing legal advice given to or received by Mr John Thompson and/or Mr Lawrence McNaughton and/or Mr Clive Batchelor and/or Mr Donald Austin and/or Mr Errald Miller as to the lawfulness or otherwise of the refusal and/or failure of any of the defendants to order equipment required for interconnection with any of the claimants in advance of the signing and/or regulatory approval of an interconnection agreement between the relevant defendant and relevant claimant in relation to St Lucia, St Vincent and the Grenadines, Grenada or Barbados."
[11]The submissions on behalf of the claimants were presented by Mr Rubin Q.C. The submissions on behalf of the defendants were presented by Mr Patton. I am grateful to both counsel for the clarity of their submissions and the help they gave me.

The Claimants' Submissions

[12]Mr Rubin puts his case in two ways. Adopting the order in which the submissions were presented in oral argument, his first submission can be described as the narrow submission and the second submission can be described as the broad submission. The narrow submission is in support of the second part of the relief sought by the application notice. The broad submission is in support of the first part of the relief sought by the application notice and by the draft order. Following the sequence adopted by counsel in their oral submissions, I will deal first with the narrow submission and then with the broad submission. The Narrow Submission[13]Mr Rubin accepts that the documents that he wishes to have disclosed were initially the subject of legal professional privilege. He submits that the witness statements served by the defendants and referred to in paragraph 88 of the re-amended defence contain passages where the witnesses refer to their beliefs as to the lawfulness of their conduct and also refer, in a way which I will describe in more detail later, to the topic of legal advice being given, in particular by a Mr Batstone, a lawyer. Mr Rubin submits that taking all the witness statements together, there is a waiver of legal professional privilege in any such legal advice.[14]The parties are agreed that where a party is entitled to claim legal professional privilege but nonetheless deploys some of the privileged material in the litigation, then that party may be held to have waived privilege in the relevant material. The waiver will not necessarily be confined to the privileged material deployed by the party but may extend further, to some extent, to other privileged material. It has been said that the party who makes a partial waiver of privileged material is not entitled to cherrypick from the material so as to disclose and deploy the part of the material which suits him but to withhold other parts which might not suit him.[15]On the narrow submission, the first issue is as to what is sufficient to amount to conduct by a party which has the effect of waiving privilege in this way. Although the principles in this area are long-established and the subject of a considerable body of authority, Mr Rubin relied on one case in particular. That was the recent decision of the Employment Appeal Tribunal, Brennan v Sunderland City Council [2009] ICR[16]In Brennan, the judgment of the tribunal was given by the then president, Mr Justice Elias. At paragraph 16, when summarising the law, Mr Justice Elias referred to the classic case of waiver where a party refers in detail to, and seeks to rely upon, part of a document setting out legal advice. At paragraph 45 Mr Justice Elias referred to earlier cases where a distinction had been drawn between a reference to the contents of a document containing legal advice and the effect of such a document. It was stated that reliance on the contents of the document may amount to a waiver whereas reliance on the effect of the document would not. At paragraph 64, Mr Justice Elias referred to the need for the court to form a view, first, as to the nature of what had been revealed and, secondly, the circumstances in which it had been revealed. In the latter regard, he distinguished between a reference to a document and reliance upon the document.[17]I will read from certain paragraphs in the judgment on which particular emphasis was placed in the course of argument. At paragraphs 65 to 67, Mr Justice Elias, giving the judgment of the tribunal, said this: 25. "In our judgment, it is an error to treat the earlier authorities as if the words falling from judicial lips had the sanctity of statute. We would not therefore adopt in quite such stark terms the contents/effects distinction which [counsel] submits represents the law. Plainly the fuller the information provided about the legal advice, the greater the risk that waiver will have occurred, but we do not think that the application of the waiver principle can be made to depend on a labelling exercise, particularly where the categories are so imprecise. The concepts shade into each other and do not have the precision required to justify their employment as rigid tests for defining the scope of waiver. “Having said that, we do accept that the authorities hold fast to the principle that legal advice privilege is an extremely important protection and that waiver is not easily established. In that context, something more than the effect of the advice must be disclosed before any question of waiver can arise. "However, in our view, the answer to the question whether waiver has occurred or not depends upon considering both what has been disclosed and the circumstances in which disclosure has occurred. As to the latter, the authorities in England strongly support the view that a degree of reliance is required before waiver arises but there may be issues as to the extent of the reliance.Ultimately there is the single composite question of whether, having regard to these considerations, fairness requires that the full advice be made available. A court might, for example, find it difficult to say what side of the contents/effect line a particular disclosure falls but the answer to whether there has been waiver may be easier to discern if the focus is on the question whether fairness requires full disclosure."[18]I read also paragraph 69 of the judgment in that case, where Mr

Justice Elias said this:

"In our view, the authorities demonstrate that reliance is necessary and there is currently no indication that the Council have any intention of relying on the advice. The disputed material was put before the court as an exhibit to a lengthy witness statement. The legal advice had not been specifically referred to in the pleadings, nor in the witness statements themselves, and in our view the mere reference to the advice, even to the contents of it, was not in the circumstances sufficient to constitute a waiver of privilege. The Council are not seeking to rely upon the advice to justify the reason why they decided to implement pay protection for a period of four years."
[19]Mr Rubin invited me to apply the approach encapsulated in those passages from Brennan.[20]Mr Patton, on behalf of the defendants, does not I think fundamentally disagree with this approach. He does not in terms quarrel with the way in which the matter is discussed in Brennan. To assist analysis of the problems which arise, he identified three questions which he submitted should be asked in turn. His questions are as follows: (1). Is there a reference to the legal advice? He submits if there is not, there is no waiver of any such privilege. (2). If there is a reference to the legal advice, is there reliance on that legal advice? He submits if there is not, there is no waiver of privilege. (3). If there is reliance on the legal advice, is the reliance on the contents of the advice or only on the effect of the advice? He submits that if the reliance is only on the effect of the advice, there is no waiver of privilege. I do not think that at the end of the day there is any substantial difference between the parties as to Mr Patton's questions, save that Mr Rubin submits that the Brennan case has put its own gloss on the distinction between the contents of and the effect of a document.[21]I am happy to say that it is not necessary for the purposes of this judgment to attempt a definition of the line which divides the contents of legal advice from the effect of legal advice. Indeed, in view of the remarks in Brennan, it may be altogether unhelpful in this area to attempt too rigid a definition of that kind.[22]In addition to the above submissions as to the relevant law, I record the fact that the parties agreed that a statement which merely records the fact that legal advice has been given will not amount to a waiver of privilege in that advice.[23]Having identified the legal principles to be applied, I now turn to the way Mr Rubin puts his case on the facts as to waiver. Mr Rubin has taken me in detail and with care through a large number of witness statements. He submits that, having regard to the statements made as to the belief of various witnesses and the role of some of those witnesses in giving legal advice, I can infer that the case being put forward by the defendants is that the beliefs, as to the legal position, that are being relied upon by the defendants, are supported by legal advice given to those witnesses with the alleged beliefs. He submits that the consequence of this is that the defendants are deploying the legal advice in this litigation and have waived privilege in that advice. Mr Rubin stresses that his submission relies upon the effect of the witness statements taken together rather than relying upon a particular reference here or there in a statement to the contents of legal advice.[24]Mr Patton submits that this argument by Mr Rubin contains the seeds of its own destruction. He points out that this particular argument does not seek to rely upon any express references in the witness statements to the contents of legal advice supporting the alleged beliefs. Rather the argument is that the statements made by the witnesses give rise to an inference -- and Mr Patton stressed the word "inference" -- that the relevant beliefs were supported by legal advice. Mr Patton submitted that if there were no reference to the contents of the legal advice, there could be no waiver in relation to such advice.[25]Mr Rubin accepted that if the legal advice were not disclosed as a result of this application, he would contend in closing submissions at the end of the trial that it could not be inferred that the legal advice supported the alleged beliefs. I put to Mr Rubin that if the defendants did not disclose the legal advice, they could hardly ask the court to infer that the legal advice supported the alleged beliefs. That would not be a case of drawing adverse inferences against the defendants by reason of the claim to privilege; it would instead be a case of not drawing inferences in their favour; the reason for not drawing inferences in their favour being that the material was simply not before the court and could not be assessed. In due course, Mr Patton, on behalf of the defendants, accepted in clear terms that in the absence of disclosure of the legal advice the defendants could not contend for such an inference in their favour.[26]These exchanges during argument mean that the witness statements are not to be read as justifying the inference initially contended for by Mr Rubin, although it now appears that his contention was for the purposes of this application only and a different contention would be put forward at the end of the trial. It seems to me to follow that his contention that the inference exists and has led to a waiver of privilege must accordingly fail.[27]The matter does not stop there. Even if the suggested inference were appropriate, I do not see how it could be said that as a result of that inference the witness statements contain a reference to the contents of the legal advice. There needs to be a reference -- and I stress the word "reference" -- to the contents of the legal advice for there to be the beginnings of a case as to waiver by deployment by the defendants.[28]That deals with the primary way in which Mr Rubin put his case on the alleged deployment of privileged material. However, there are undoubtedly references in the witness statements to the topic of legal advice and accordingly, applying conventional principles, the question remains to be asked whether there is a reference which, fairly read, amounts to reliance on the contents of legal advice.[29]I have carefully considered the many passages in the witness statements to which my attention was drawn. These passages have been extracted and set out over eight pages in a witness statement from the claimants' solicitor. That was, of course, helpful in the course of the application but it is neither necessary nor appropriate for me to set out all those passages in this judgment. Many of the statements so extracted simply record the fact that the legal advice was given. In accordance with settled principles, accepted by both parties on this application, a statement of that fact does not result in any waiver of privilege.[30]There were, however, four statements which were the subject of particular attention in the course of argument. The first of these is in paragraph 10 of a witness statement of Mr Batstone, to whom I have referred in passing. Paragraph 10 reads as follows:
"As legal adviser, my role has included providing legal advice in the context of interconnection negotiations. Such advice is, of course, privileged and I understand that this privilege has not been waived. Consequently, when I refer to events and meetings below, I do not refer to the content of any legal advice that may have been given. On occasion, however, I do set out what my belief was as to the existence or extent of any obligations in relation to interconnection. In doing so, I do not seek to trespass on questions of statutory or contractual construction which I understand are questions for the court to determine after hearing legal argument. The only purpose of referring to my contemporaneous belief or understanding in this respect is to explain why I (or those with whom I was working) acted (or omitted to act) as we did. I understand this may be relevant given that it is alleged in these proceedings that the defendants pursued a strategy of deliberate and unlawful delay as regards interconnection."
[31]I should make a few preliminary remarks about that statement. First, whether a reference to legal advice gives rise to a waiver is a matter of law to be judged objectively. Thus a statement that the reference is not to be taken as a waiver of privilege does not prevent the court holding that, as a matter of law, objectively considered, the statement does constitute a waiver. To be fair to Mr Batstone, he does not try to say that there is no intention to waive; rather he says that the privilege had not previously been waived. Secondly, a statement that the witness does not refer to the contents of the advice can be material when the court considers the separate question, which is a question of fact, whether the reference is fairly construed as a reference to the contents of the advice or to something less than that. Thirdly, the fact that Mr Batstone refers to his own belief and his own conduct in reliance on his belief does not of itself state that he gave legal advice, much less what was the content of that legal advice.[32]The case for saying that paragraph 10 is a waiver is that when Mr Batstone refers to his explanation for why other persons acted as they did, he must be taken to be saying that the others relied on his legal advice and the contents of legal advice are shown by the conduct which was said to have been influenced by or based upon that legal advice. Although this argument can be put, it is my view that this reference by Mr Batstone is not a sufficient reference to the contents of the advice nor reliance on such contents. The defendants have not crossed the ill-defined line which separates the contents of advice from the effect of advice so as to result in a waiver of privilege.[33]The second statement to which I refer is in paragraph 283 of Mr Batstone's statement. Before reading that paragraph, I need to refer to a letter dated 23 May 2003 from Cable & Wireless (Barbados) Limited to Digicel (Barbados) Limited:
"Dear Mr McDermott. "
RE: request for interconnection. "We are in receipt of your letter of 14 May 2003 in which you requested interconnection with Cable & Wireless (Barbados) Limited. "Notwithstanding that section 28(1) of the Telecommunications Act 2001 provides that a 'person' that wishes to interconnect with Cable & Wireless' network shall make a request in writing, it is Cable & Wireless' view that Part VI of the Telecommunications Act must be read in its entirety for an accurate interpretation of 'person' to be determined. "We have been advised that person must be interpreted to mean a 'carrier' who has been licensed to own or operate a telecommunications network, and is therefore eligible to be provided with interconnection services pursuant to subsection 25(1) of the said Act which is the leading section. Any other interpretation would make nonsense of the legislation and would result in operating carriers being obligated to negotiate interconnection with parties who may have no intention or prospect of providing these services. "We have also been advised that licences have not been issued to Digicel or any other identified new entrant. In addition, the regulatory framework for the liberalised environment remains incomplete. "We are unable to accede to your request at this time and Cable & Wireless' position in its letter of 14 March 2003 stands. "Cable & Wireless reserves its legal rights."[34]Paragraph 283 of Mr Batstone's statement reads as follows:
"Within a week, on 23 May 2003, Mr Austin replied on behalf of C&W Barbados explaining that in the context of the Act, the reference to 'person' should be read as a reference to a carrier. Mr Austin's letter (which I helped draft) noted that so far as C&W Barbados was aware, licences had not been issued to Digicel Barbados or any other new entrant. In addition, the regulatory framework for the liberalised environment remained incomplete. Mr Austin explained that, for these reasons, C&W Barbados' position as set out in its 14 March 2003 letter stood and it was unable to accede to Digicel Barbados' request for the present. I believe our position, as set out in Mr Austin's letter, to be both legally correct and commercially sensible."
[35]Mr Rubin expressly conceded in the course of argument that the letter of 23 May 2003 did not involve a waiver of privilege in the advice referred to in that letter. In view of that concession, I do not see anything in paragraph 283 of the witness statement which takes the matter any further.[36]The third statement is in paragraph 369 of Mr Batstone's witness statement. Paragraph 369 referred to an earlier point mentioned in paragraph 368 of the statement about allegations of certain conduct and the like. Paragraph 369 reads as follows:
"These allegations were all, in my view, entirely false and, indeed, offensive. I have explained the nature and extent of the involvement of the London office above. No-one in London ever gave me an instruction, written or verbal, as to how I should conduct myself during the interconnection negotiations. In any event, I was (and remain) a qualified legal adviser. I was carrying out my job as legal adviser to the Carrier Services team to the up most of my abilities. I exercised independent judgment to ensure that the advice I gave and the stance we took in negotiations was in accordance with the law."
[37]The argument for this being a waiver of privilege is that when Mr Batstone refers to "the stance we took", he is not referring to himself alone. It can be said that he is saying that he ensured that the advice he gave to others affected the stance of those others. Therefore, it is argued, the contents of the legal advice are revealed by the conduct of those others. In my judgment, as before, this reference to legal advice is on the side of the ill-defined line between the contents and the effect of legal advice such that this is not a statement which relies on the contents of the legal advice and does not constitute a waiver of privilege.[38]The fourth and last statement to which I will refer is in paragraph 28 of Mr Austin's witness statement. That paragraph also refers to the letter of 23 May 2003 which I have referred to earlier in this judgment. Paragraph 28 reads as follows:
"We heard nothing further in response to that letter until 14 May 2003 when Digicel sent a letter. Digicel did not produce a copy of a licence but put forward an explanation of what they said were our obligations. I thought that their delay in replying indicated that they knew they had no right to request interconnection at that time. I responded on 23 May 2003 with our position that we had no obligation to interconnect with someone who was not a licensed carrier which, as set out in that letter, was based on advice."
[39]In my judgment, the reference to the letter being based on advice does not amount to reliance on the contents of the advice as distinct from the fact of the advice or possibly the effect of the advice.[40]The result of the above is that if I apply, as best I can, conventional principles in this area to the facts of this case, I ought to conclude that the contents of the legal advice have not been deployed in such a way as to lead to a waiver of the privilege in that advice.[41]Mr Rubin says that it is most unfair for the defendants to be able to give evidence as to their alleged beliefs on what is a matter of law and yet withhold disclosure of the legal advice they obviously received on that matter. I have three comments to make in relation to that submission. The first is that fairness is not the touchstone by which it is determined whether there has been a waiver of privilege. I do not regard Mr Justice Elias's decision in the Brennan case as altering that fact. I will refer later to the authority which establishes or restates the proposition on which I rely. Secondly, although the legal advice would be highly relevant to the fact-finding enquiry into the alleged beliefs and although it is therefore very tempting for the court to require the disclosure of that legal advice, I am only in a position to make an order which compels the defendants to do that which they do not wish to do if I can make such an order in accordance with legal principle. To order disclosure is tempting, but wrong. Thirdly, in the case much relied upon by Mr Rubin, the Brennan case, Mr Justice Elias stressed that privilege was a very important matter and was not lightly to be overridden by an over-readiness on the part of a court to find a waiver of privilege. My Conclusion on

The Narrow Submission

[42]My conclusion on the narrow submission is that the way in which the legal advice has been described in the various witness statements is not such as to amount to a waiver of privilege in the legal advice in question. The Broad Submission[43]The broad submission was put forward before my conclusion on the narrow submission was known. The broad submission was made whatever the fate of the narrow submission might be. Thus it is said that the broad submission is right even in a case where the defendants have not deployed the contents of legal advice in the litigation. In view of my earlier decision on the narrow submission, that is indeed this case.[44]Mr Rubin says that, nonetheless, he is able to show that the nature of the issue as to honest belief raised by the defendants in this case is such that the defendants, by raising that issue, have waived privilege in the legal advice.[45]In support of this broad submission, Mr Rubin prayed in aid a number of matters. I will attempt to summarise the various matters which he relied upon. He submitted as follows: (1). The defendants have pleaded the state of mind of various individuals. (2). The alleged state of mind relates to matters of law as to whether certain acts or omissions were lawful under various statutes and regulations. (3). The alleged state of mind is in issue and the court will be asked to make findings as to whether the state of mind existed. (4). On the evidence in the defendants' witness statements it is, at the lowest, very likely that the defendants did receive legal advice and that that legal advice contributed to the state of mind of the individuals which is pleaded. (5). It is quite unrealistic to think that the court can fairly make findings of fact as to the alleged state of mind unless the court has available to it all the material which contributed to the individual having the alleged state of mind. That material critically includes any legal advice communicated to that individual. (6). It is unrealistic to think that the claimants can properly cross-examine the relevant individuals unless the claimants have available to them the same material. (7). It would be most unfair for the defendants to be allowed to advance their pleaded case as to the alleged state of mind while the claimants and the court are denied access to the legal advice which probably contributed to or caused the individual forming the alleged views, or indeed their actual views if different. (8). The position as to the fairness of what is proposed means that the court is able to conclude that there has been a waiver of the privilege in the communicated legal advice, whether that was communicated by documents or orally. (9). Whether the defendants do or do not rely upon the receipt of legal advice does not matter for present purposes. (10). Any confidentiality in the legal advice has been waived because the defendants have put in issue the state of mind of certain witnesses as to matters of law. (11) There is no authority which prevents the court holding that there has been a waiver of legal professional privilege and, if necessary, the court should now provide such authority itself.[46]Mr Patton joins issue with the submissions. In summary, he submits: (1). The documents in question on this application are clearly privileged. (2). The right to maintain legal professional privilege is a fundamental right of the defendants. (3). That fundamental right is jealously protected by the relevant legal principles. (4). The relevant principles do not involve the court in balancing up the desirability of the documents being disclosed and the documents being withheld. (5) The relevant principles do not turn on what is perceived by the court to be fair in all the circumstances. It is not enough for the claimants to appeal to the court's sense that it would be altogether fairer if the documents were available and were examined at this trial. (6). To override the defendants' privilege, the claimants must show that something which has been done by the defendants has amounted to a waiver by them of that privilege. (7). There is clear authority that simply to plead a state of mind which might or might not have been influenced by legal advice which might or might not have been given is not an act of waiver of the privilege. (8) that authority applies whether the pleaded state of mind is a belief as to fact or a belief as to matters of law. The Authorities on

The Broad Submission

[47]In addition to several authorities which dealt more generally with the question of legal professional privilege, both sides referred me to, and made detailed submissions on, the decision of the Court of Appeal in Paragon Finance v Freshfields [1999] 1 Weekly Law Reports 1183 and the decision of Mr Justice Ramsey in Farm Assist Limited v Secretary of State for Environment, Food and Rural Affairs [2009] Professional Negligence Law Reports 321.

Reports 1183 and the decision of Mr Justice Ramsey in

[48]In Paragon, the judgment of the Court of Appeal was given by the then Lord Chief Justice, Lord Bingham of Cornhill. At page 1188 Lord Bingham referred to the case of express waiver; he also referred to a case of implied waiver which arises where a client sues his solicitor and he explained the legal principles in that respect. At page 1192, beginning at letter H, Lord Bingham said this:
"If the question were one of balancing the requirements of fairness and justice in the instant proceedings against any legitimate interest a plaintiff might have in maintaining the confidentiality of a confidential relationship, there might be much to be said for the result reached by the judge in the Kershaw case [1996] 1 WLR 358 but Reg v Derby Magistrates' Court Ex parte B [1996] AC 487 makes plain that in the context of legal professional privilege no such balance is involved. This authority is important, not only for its clear restatement of principle, but also as illustrating in graphic terms the all but absolute nature of this privilege in the absence of waiver. If ever there was a case in which the interests of justice militated in favour of disclosure, that surely was it."
At page 1193, beginning at letter G, Lord Bingham referred to an earlier decision of Mr Justice Jonathan Parker in Hayes v Dowding [1996] Professional Negligence Law Reports 578. That authority had referred to authority from Australia and the United States and it is clear from Lord Bingham's treatment of the authority that the way in which the law has developed elsewhere is not descriptive of the way in which the law has developed in this jurisdiction. Lord Bingham said this:
"We need not linger on Hayes vDowding, a case in which the plaintiffs were held to have impliedly waived their right to legal professional privilege by bringing proceedings even though the proceedings were not against any legal adviser. In reaching that conclusion the judge relied heavily on Australian and United States authority. Neither party before us sought to contend that this case was correctly decided and we are satisfied that it was not. The authorities on which the judge principally relied do not represent the law in this country, and the decision must be overruled."
At page 1194A to B, on the subject of fairness, Lord Bingham had this to say:
"Fairness is an important part of the reason why a solicitor who is sued cannot be required to respect the confidentiality of his relationship with the client who is suing him; but, save as between the client and the solicitor he is suing, fairness is not the touchstone by which it is determined whether a client has or has not impliedly waived his privilege."

At page 1192, beginning at letter H, Lord Bingham said this:

[49]In the Farm Assist case, the decision of Mr

Justice Ramsey, reading from the headnote was:

"The learned judge held that the mere fact that a party's state of mind was in issue in other proceedings did not give rise to an implied waiver of privilege in relation to any legal advice which might have influenced him."
In that case, having described the state of mind which was in issue on the pleadings and the arguments as to waiver of privilege as a result of that being an issue, the learned judge reviewed the authorities, which I need not list. He then referred to statements in the textbooks which were relied upon in that case by the applicant for disclosure. I will refer to one statement in particular, which is in paragraph 32 of Mr Justice Ramsey's judgment, which reads:
"Where in litigation allegations are made by a party concerning his state of mind (eg in entering an agreement) to which legal advice contributed, that party cannot withhold the advice on grounds of privilege but this is because of implied waiver rather than because no privilege attached in the first place."
That statement in the textbook was plainly heavily influenced by the decision in Hayes v Dowding, which itself was heavily influenced by the Australian and United States decisions. Essentially, in his conclusion, Mr Justice Ramsey stated that the statement in the textbook was wrong as a matter of law. Mr Justice Ramsey gave detailed reasons for that conclusion which I need not describe, much less read out. However, I will read paragraphs 53 and 54 of this judgment, where he said the following:
"Rather English law maintains the right of a party to maintain legal privilege. Whilst a person's state of mind and also that person's actions may well have been influenced by legal advice, there is no general implied waiver of privilege material merely because a state of mind or certain actions are in issue. This means that in the absence of disclosure of the privileged legal advice, the other party is precluded from being able to put that legal advice to a person to show that the advice influenced the state of mind or actions of that person. In many cases it could be said that privileged legal advice might be relevant to establishing an issue and that in this way the privileged material could be said to be put in issue. "
That is not the approach taken in English law. Rather the underlying policy considerations for creating privilege to protect communications between a client and solicitor are treated as paramount even if some potential unfairness might occur. The test in English law is therefore based neither on general principles of fairness nor of relevance. Implied waiver arising from particular proceedings or pleading allegations in those proceedings is, in my judgment, limited to proceedings between solicitor and client as set out in Lillicrap v Nalder and Paragon Finance." Before leaving that authority, my attention was drawn to paragraph 56, where Mr Justice Ramsey said that the case before him was not a case where the claimant had expressly put in issue some legal advice giving rise to an implied waiver. My interpretation of paragraph 56 is that the possibility, which did not arise on the facts but which was being referred to by Mr Justice Ramsey, was the possibility of waiver by reason of deployment of the contents of legal advice in the litigation.[50]It was submitted to me that Mr Justice Ramsey had gone too far in his statement of principle in the passage I have read. I do not take that view. My view is that the learned judge's treatment of the authorities and his conclusions based upon them cannot be faulted. In any event, his conclusions accord with the conclusions I think I would myself have reached on these matters even in the absence of that authority. I am, of course, encouraged to reach and state my own conclusions in the light of what I regard as a most helpful judgment in that case.

My Conclusion on the Broad Submission

[51]I prefer the submissions made on behalf of the defendants. There is no waiver of privilege in the legal advice in this case.[52]The fact that the legal advice is relevant to an issue does not result in a waiver of privilege. Relevance is a necessary precondition for disclosure but it is not itself a sufficient condition for a finding of waiver. The position is the same even where the legal advice is “highly” relevant, rather than relevant to a lesser extent, and even where an investigation of the issue may be hampered by the absence of the privileged material. The position is the same again even when the issue is as to a person's state of mind. Equally, in my judgment, it makes no difference that the alleged state of mind relates to a matter of law rather than to a matter of fact.[53]There will of course be a waiver of privilege if a party deploys the contents of the legal advice in the litigation. In the absence of such deployment, there is no rule of law which allows the court to override the claim to privilege just because the court thinks it would be fair to do so. The court will simply have to do the best that it can to come to what it hopes will be the right conclusion on all the evidence presented, even where evidence that would be relevant has been withheld by a party who is entitled in law to withhold that evidence.[54]Accordingly I reject the broad submission put forward by the claimants.

The Overall Result

[55]The overall result is that the application fails.

Other Matters

[56]For the avoidance of doubt, I wish to add two further comments.[57]First, I am not deciding who bears the legal or the evidential burden in relation to the issue as to honest belief as to the lawfulness of the conduct of the defendants.[58]Secondly, nothing in this judgment involves any prediction of the conclusions which I will come to on the issue of honest belief, having heard all the evidence in this case. It is neither appropriate nor indeed possible to form any view on that matter until I have heard all the evidence and the closing submissions from counsel. JUDGMENT .............................................1

Cited in 16 later judgments

and 7 more of the most senior