Dore & Ors ("BOTHCA") v Leicestershire County Council & Ors [2010] EWHC 34 (Ch)

Case No HC09CO4327

[2010] EWHC 34 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15/1/2010

Before

MR JUSTICE MANN

Between

SUSAN YVONNE DOREClaimants

IDA LUCY WRIGHTClaimant

COLIN ARMITAGEClaimant

PAMELA SIBSONClaimant

LEICESTERSHIRE COUNTY COUNCILDefendants

GOVERNORS OF ST HARDULPH’S CHURCH OF ENGLAND PRIMARY SCHOOLDefendant

MR. P. LAWRENCE Q.C. and MR. D. HALPERN Q.C.(instructed by Nick Makin Solicitor) for Claimants.

MR. T. DUMONT and MS. J. COLLIER (instructed by Browne Jacobson LLP) for Defendants.

Hearing Hearing dates: 16 th& 17 th December 2009

Judgment

Mr Justice Mann :

Introduction and factual background

[1]This is an application to determine the extent to which disclosure of privileged documents should take place in this action. It is an action between members of a local community association on the one hand (“BOTHCA”) and Leicestershire County Council and the governors of a school at Breedon on the Hill on the other. The County Council is the education authority for the area, and this case concerns the use of premises at Breedon which are part school and part community centre. The factual background of the dispute, which is relevant to the present application, is set out in the following paragraphs. The factual background is detailed and controversial. In what follows I have sought to distil the relevant features. So far as my account is slightly inaccurate or what the parties might view as an over-simplification, it will nevertheless do for present purposes.

[2]At the beginning of the 1960s the education authority decided to erect a new school at Breedon. BOTHCA had raised £3000 for the provision of a community hall for the village. It is said by the claimants that BOTHCA held those sums on charitable trusts. The association decided to pay those sums to the local authority and the authority would build community rooms on to the school that it was otherwise building. It is said that there was an agreement that BOTHCA would be entitled to occupy the rooms thus built. The school and rooms were duly built, and the school is now run as a Church of England school. For many years the school and BOTHCA lived harmoniously together, each using parts of the other’s premises when the need arose. BOTHCA contributed further significant sums in the improvement of the premises by, for example, paying for or contributing towards a swimming pool, tennis courts and play area. I do not need to deal with the parties’ respective cases as to the arrangements that did and did not exist for the occupation and maintenance of the rooms. The parties seem to agree that the council held and holds the land for two purposes – one educational and one community. BOTHCA’s case is that, so far as the latter purpose is concerned, either the council holds the land on trust for charitable purposes, or it holds it for BOTHCA which itself is a trustee for charitable purposes. The council’s case is that it holds the property for the two purposes and its first case is that the community purpose involves it holding the property on trust for the benefit of the local community, or alternatively if BOTHCA is a subtrustee then it admits that it is a charitable trustee.

[3]In recent years the local authority has started to take a different view as to the desirability and terms of the cohabitation. It has sought to limit, and ultimately terminate, BOTHCA’s access to the community rooms. For a time in 2006 it excluded the association by changing the locks. It has done this because of what it perceives to be the proper discharge of its educational functions, and because of certain constraints said to be imposed by local authority finance provisions. This has led to considerable tension between the parties. It culminated in a council Cabinet decision on 18th December 2007 to the effect that solicitors be authorised to serve a notice on BOTHCA to cease using the facilities at the school from 1st January 2009, in return for which the authority would pay a sum of £92,000 odd, and make some further limited contributions to costs and expenses in the forthcoming year. The reasons for that decision as recorded in the resolution, were that relationships between BOTHCA, the governors and the council had broken down, and that was affecting the ability of the governors and the head teacher to manage the schools.

[4]BOTHCA’s first litigation response was to launch a public law challenge to those proceedings. Later they joined a private law challenge, and the public law challenge has gone because the council has recalled its decision of December 2007, leaving only the private law challenge in place. That challenge complains of a breach of trust and seeks a declaration as to the trusts which are operating, a declaration as to the agreement or understanding regulating the use and occupation of the property, a declaration that the council cannot expel BOTHCA or limit its use, “if necessary” an order that the council be removed as trustee of the property and/or as trustee of the charitable trusts, damages, equitable compensation and the taking of accounts. Despite the fact that it seems virtually inevitable that these proceedings involve the administration of charitable trusts, the Charity Commissioners have (I am told) taken the view that the proceedings are not charitable proceedings and their consent to their being taken is not required. The parties have been left to get on with it. The effect is that each side has so far spent large sums of costs. I was told that the council had spent in the order of £1m, and the claimants have spent significantly more than that. The sums are obviously more than enough to build more than one community centre, though in the case of the claimants the word “spent” has to be qualified by the fact that their lawyers are (I am told) acting under conditional fee agreements. During the course of the hearing before me (which concerned more than the privilege point to which this judgment relates) I directed that the claimants should draw these proceedings to the attention of the Charity Commissioners again, with a view to allowing them to reconsider whether they are charity proceedings and with a view to the Commissioners’ getting involved in a way which will avoid the need for the trial of this action which will otherwise take place in March 2010.

[5]I now need to backtrack a little in time to set out some more facts which are pertinent to the privilege claims that I have to resolve. The council employed a legal executive called Mr Gold. In 2006, as the dispute was getting towards its height, he investigated the background with a view to enabling the council to consider the legal position. He consulted with various members of BOTHCA, did other research and put his views in a report dated 24th November 2006. He had to go back some way into history to find out what had happened. He came to the conclusion that the dealings between the parties had created a trust under which “the Community” had a beneficial interest. He made recommendations as to what should be done to give effect to this – the trust should be formally recorded; BOTHCA should not be charged for the use of the premises (contrary to recent practice), money charged should be returned, occupation of the community office (which had been taken by the school) should be returned as soon as practicable and an apology should be offered. During the course of the preparation of this report he provided drafts to members of BOTHCA and also seems to have supplied a copy of the final version to them at about the time he finalised it. He was providing legal services to the council, and it is common ground that, subject to waiver, his report (and other dealings in relation to it) would be privileged. I was not shown any evidence that the council has ever objected to BOTHCA having a copy of that document, but the council denies that he had authority to disclose it.

[6]The local authority decided to instruct counsel on the point, and through Mr Gold they instructed Miss Elisabeth Laing. She provided an Opinion dated 7th February 2007. Like Mr Gold she considered that the arrangements had given rise to enforceable rights against the council, and that the arrangements gave rise to a trust, but she considered that it was a trust for local charitable purposes. Her conclusion was that as a result the council should approach the Charity Commissioners to have the charity registered, to regularise the position (especially in relation to charges) and if the Commissioners took the view that there was no charitable trust then a declaration of trust should be executed. The council should also take steps to ensure that the school governors did not wrongly exclude the association from the community facilities.

[7]It appears that not all elements of the council accepted this position. In this action it is alleged that those in charge of the education department were particularly hostile to it. In due course, in 2007, Mrs McCalla, the county solicitor, instructed Browne Jacobson LLP to advise further. In a witness statement prepared for the trial of this action she says that she had formed the view (at least by the time of the Cabinet meeting) that the instructions given by Mr Gold to Miss Laing were inadequate, first because of deficiencies in the content of his own note and second because it failed to address certain fundamental issues. I do not need to set out the particularisation lying behind those points.

[8]Browne Jacobson duly advised, and their advice was referred to in a report prepared for the Cabinet meeting at which it took the December 2007decision referred to above. The report was prepared by Mrs McCalla. It was originally disclosed in these proceedings in redacted form, but in due course was served in unredacted form. The unredacted paragraph 10 reads:

“In February 2007, the County Council sought Counsel’s Opinion on the legal position. Regrettably, the Instructions were largely informed by information from the Community Association rather than from the Governors and Children and Young People’s Service and did not question some of the basic assumptions, which meant that Counsel's Opinion was of limited assistance. The County Solicitor intervened personally with a view to trying to reach a practical solution to the issues on the ground. More recently the matter has been put out to external solicitors who have extensive experience in trust litigation and local government. In short, the advice from those solicitors is that while there may be some form of charitable trust, the Council's obligations are limited to making the premises available for community use, and repaying an appropriate sum to the community if the premises are ceased to be available for community use. ”

[9]The decision reached by Cabinet is referred to above. These proceedings ultimately resulted.

The privilege application

[10]In the course of the proceedings the defendants listed various documents as privileged, which included the following categories so far as relevant to this application:• Correspondence between Mrs McCalla and the 2nd defendants.

• Correspondence between Browne Jacobson and Mrs McCalla

• Correspondence between Browne Jacobson and the Second Defendants.

• Draft documents, file notes and working draft documents on Mrs McCalla’s file.

• Draft documents, file notes and working draft documents on Browne Jacobson’s file.

• Correspondence between Patrick Gold and the Second Defendant.

• Correspondence between Patrick Gold and Lesley Hagger.

• Correspondence between Patrick Gold and Andrew James/David Morgan/Mrs McCalla. [Andrew James and David Morgan worked in the legal department.]

• Correspondence between Mrs McCalla and Senior Officers of the council including Directors, the Chief Executive, Assistant Directors and councillors.

• Draft of documents, file notes and working documents on Mr Gold's file.

• Advice and documents on Mr Gold's file dealing with a freedom of information request made by one of the claimants.

• Correspondence between Mr Morgan and Senior Officers of the council including directors and assistant directors.

• Draft of documents, file notes and working documents on David Morgan's file.

• Correspondence between Mr Gold and officers of the council including a Mr Dutton from the Works Department and Jenny Lawrence.

[11]Some of these categories were added by a supplemental list. A question arose as to whether those documents were in fact privileged, but at a previous hearing Sir Gavin Lightman questioned whether they were relevant. The relevance point was debated before me, and I determined that they should be treated as relevant documents for the purposes of disclosure, not least because the defendants had twice asserted that they were, once in the original list and then again in the amended list, even though the real relevance of some of them might be thought to be rather questionable. On the material that I had in relation to the issue (which was not much) it would not have been right to go behind the averments of relevance.

[12]They are therefore treated as relevant documents. However, they are all listed as privileged, and inspection is resisted on that basis. They all prima facie relate to the obtaining of legal advice, and it is accepted by the claimants that they are to be treated as privileged unless the privilege has been waived. At the hearing before me Mr Patrick Lawrence QC, who appeared for the claimants, expressly disclaimed any suggestion that privilege might not exist because of any trustee/beneficiary relationship (a previous skeleton had sought to make such a case). So the debate before me became one as to whether privilege had been waived or not. That is the question that I have to determine.

The manner in which the privilege debate came about

[13]There have been two attempts at a trial in this case. The first was on 1st May 2009, when the matter was listed for trial. It came before Sir Gavin Lightman. He adjourned it. He held that the public law issues had become academic and required a re-pleading of the private law claim, ordering that it be made clear whether bad faith was being alleged. The next trial was listed for September, but in due course that was put off until the beginning of 2010. In the meanwhile there was an interlocutory hearing on 23rd July 2009, again in front of Sir Gavin Lightman. One of the things raised at that hearing was inspection of the documents for which privilege was claimed. Sir Gavin questioned whether privilege was sustainable, and ordered that the defendants should by 6th August make an application to maintain privilege, in default of which the claimants would be entitled to inspect them. He gave directions for the exchange of written submissions and evidence on the point. I think he had in mind that the trustee/beneficiary exemption might apply. The defendants made their application on 5th August 2009.

[14]That application came on, yet again before Sir Gavin Lightman, on 21st October, when it was adjourned following the judge raising the relevance point referred to above. He adjourned the hearing, and ruled that at the resumed hearing the judge should determine whether any of the documents were relevant and whether disclosure was proportionate.

[15]Thus all those applications came before me. Unfortunately, whether because of the manner in which the issues were raised or because of inadvertence, they come before me on the basis of inadequate material. The issue on privilege has turned out to be solely one of waiver. Privilege has been conceded (or at least not challenged) subject only to waiver. The waiver relied on is (as will appear) a form of collateral waiver turning on certain other alleged acts of waiver. Unfortunately there was no evidence from the claimants which made clear the circumstances of those acts, even though those circumstances must in my view be relevant in defining the scope of the waiver. Similarly there was no evidence from the defendants to that effect either. Although they were batting first in the sense that it was their application, and not the claimants (which one would normally have expected), their submissions demonstrated that they knew a waiver point was being taken. So the waiver argument was argued before me with no evidence dedicated to the point. Reference was made to the history of the case, and to some of the evidence already provided in the form of witness statements (for the trial) but it was a somewhat piecemeal effort in relation to a point that has some real significance in this case. Rather than adjourn the hearing yet again, I continued to hear it on the basis of the jigsaw of evidential bits and pieces presented by both counsel.

The applicable law

[16]The essence of the claimants’ case was that privilege was waived in the above communications because privilege had been waived in other privileged material – the Gold report, the Laing Opinion and (via disclosure of the report to Cabinet) the advice given by Browne Jacobson. There was some debate about terminology, but in the end the parties settled on “collateral waiver”, as opposed to “implied waiver” (it was said that the latter should be confined to the special situation where a client sues the solicitor). There was also agreement as to the basic principles underlying that waiver. They are set out in my judgment in Fulham Leisure Holdings Ltd v Nicholson Graham Jones

[2006] EWHC 158

. In that case I held that waiver applied to the “transaction” in question, which might go beyond the actual document (or privileged information) disclosed, and suggested the following approach:

“(i) One should identify the ‘transaction’ in respect of which the disclosure has been made (ii) That transaction may be identifiable simply from the nature of the disclosure made – for example, advice given by counsel on a single occasion. (iii) However, it may be apparent from that material, or from other available material, that the transaction is wider than that which is immediately apparent. If it does, then the whole of the wider transaction must be disclosed. (iv) When that has been done, further disclosure will be necessary if that is necessary in order to avoid unfairness or misunderstanding of what has been disclosed.”

The claimants’ case on disclosure

[17]Starting from those principles, Mr Lawrence put the matter in a number of ways. First, he said that there were three acts of primary waiver – the disclosure of the Gold report (both contemporaneously and in the list of documents), the disclosure of the Laing opinion and the disclosure (physically and by reference to it in a witness statement of Mrs McCalla) of the Browne Jacobson advice in the unredacted report to Cabinet. His broadest case was to the effect that the council had disclosed three sets of legal advice, spanning a period of over a year, and the “transaction” ought to be treated as all the legal advice received from Gold to Browne Jacobson; and this brought in the ancillary material referred to in the above heads of documents. He said it was impermissible and wrong to cherry-pick the bits of advice that have been disclosed and not produce the material in between. Putting the matter more narrowly, there should be taken to be a waiver of the actual Browne Jacobson advice (it will be remembered that Mrs McCalla’s report contained only a summary), because the actual reference was opaque and references in Mrs McCalla’s witness statement made it unclear whether the advice supported the recommendation of the Cabinet, despite the fact that Cabinet relied, or purported to rely, on it. Then he put his case on the basis of fairness – it would give a false picture if the disclosure of material remained where it now is. There will be cross-examination of Mrs McCalla on why the Gold view and the instructions to Laing were apparently denigrated and put on one side in December 2007, and fairness required that that take place on the footing of proper disclosure. In a further refinement he claimed that the transactional analysis, or alternatively fairness, required that if the Gold report were to be disclosed, then there should also be disclosed any amplification or modification of his advice, and subsequent comment on it within the council. In this respect he relied, by way of parallel, with the further disclosure actually ordered in the Fulham case. This further material would show why the education department disagreed with Mr Gold (which they apparently did).

The defendants’ case

[18]Miss Collier, who argued the waiver point for the defendants, accepted Fulham as the starting point, but applied further elaborations. She relied on the principle, set out in Hollander on Documentary Evidence (10th Edn) at page 432 to the effect that the court should take a restrictive view of waiver, and said in addition that the purpose for which, and the circumstances in which, the disclosure took place was an important part of an analysis as to how far waiver went or should be taken as going, both for the purpose of analysing the “transaction”, and for the purpose of assessing the fairness point. When one looked at the acts of waiver relied on, they did not carry the “transaction” anywhere near Mr Lawrence’s version of the transaction; nor did any material demonstrate that fairness required the revealing of any further privileged material. Some of Mr Lawrence’s submissions amounted to no more than an assertion of relevance, and that was not sufficient to found waiver arguments (though she disputed the relevance of some it anyway). Nor was it sufficient to point to the fact that a privileged matter was pleaded, which some of Mr Lawrence’s submissions seemed to amount to. One particularly important factor was the fact that the reference to much of the privileged material in the witness statements was because the defendants were meeting a case, not because they were advancing their own voluntary positive case in the proceedings. That factor meant that the scope of any waiver was, or might be, less than it might otherwise have been.

Findings on waiver

[19]Overall, I prefer the submission of Miss Collier to those of Mr Lawrence. I accept Miss Collier’s exposition of the legal principles, and most of her analysis. Mr Lawrence’s analysis was too broad-brushed an affair. It did not focus sufficiently on the actual acts of waiver which have taken place before starting to see where else those acts of waiver took one. It is not sufficient to say, as he said, that the transaction should be taken as being the legal advice across the period, or the legal advice in relation to the Breedon school/community centre problem. That was, on analysis, a matter of assertion, and on the facts of this case is a false analysis. I think that Miss Collier’s approach, of examining the relevant acts of waiver (which were discrete acts, so far as there was a waiver at all) is the correct one. The acts must be examined and put in their context. If that exercise extends the transaction to the extent argued for by Mr Lawrence, then he will succeed on that basis. If not, and if fairness does not get him home, then he will fail on his wider approach. The exercise will also determine whether some of his narrower claims are valid.

[20]The relevant exercise is, I fear, not one which Mr Lawrence carried out. He served no evidence directed to the point, and his analysis in submissions was not that refined. However, he did advance some evidential material, and Miss Collier did the same. I shall work on the material that they advanced, though the exercise does become an unsatisfactory one.

[21]The first act of waiver is the disclosure of the Gold report. The circumstances of its disclosure are unusual but significant. This is not a case in which the council got the report and then chose to disclose it to the other side. It appears that Mr Gold discussed it in draft before it was finalised, and then voluntarily provided the final draft. On the evidence the likelihood is that he did that because he was generally co-operating with and liaising with BOTHCA. There is no evidence that he disclosed it pursuant to an express provision from anyone senior to him in the legal department or in the council. Nor is there any evidence as to any other express purpose for its disclosure. It was done at a time when it seemed some progress was being made towards sorting out the relationship between the parties.

[22]Taking that act of waiver by itself it seems to me that the transaction in question is merely the disclosure of the report itself. It is questionable whether Mr Gold had authority to waive privilege, but that point has not been taken, no doubt on a “what’s done is done” basis. But even if he did, there is no indication of any purpose, or circumstance, which pushes the transaction wider than that. In due course, the report was also disclosed in the list in the present proceedings without any claim to privilege. That was a plain waiver on any footing, but again there is nothing in that act which takes the transaction any wider than the act itself. I will return below to whether anything else that has happened extends the disclosure envelope arising from this disclosure.

[23]The Laing opinion disclosure is an even more tenuous affair. It appears it was promised by Mr Gold to Mr Makin (the solicitor acting for BOTHCA), but was not provided by him. It is not known what authority he had to waive privilege in the opinion anyway. It was in fact provided informally to BOTHCA by one of the governors of the school. If that is an act of waiver at all, it is certainly not one which binds the council. Despite that, no-one seems to have taken the point that BOTHCA should not have it, and it was the subject of open discussion thereafter. It can therefore be assumed that confidentiality has been lost, and that privilege has been lost for at least that reason. However, that does not assist BOTHCA in seeking to extend the scope of the waiver into surrounding documents or circumstances. All that has happened is that the council has not objected to the opinion having a circulation. There is hardly any transaction at all, and certainly nothing going beyond the opinion, and bearing in mind the circumstances in which it was provided there is no question of fairness requiring any wider disclosure. The opinion is not rendered misleading by any failure to disclose other material. The council had no purpose in disclosure, so that does not generate any unfairness; and the purpose of the governor was presumably merely to inform of the content of the opinion. It speaks for itself, and fairness (and particularly avoiding misleading) does not require any additional disclosure.

[24]I am told that the opinion has not been listed in the council’s list of documents. Nonetheless, it is clearly something that is going to figure in this action. At an earlier stage in these proceedings, when they were still proceeding in the Queen’s Bench Division, Collins J ordered disclosure of the instructions given to Miss Laing in connection with her advice. Those instructions have been disclosed. Their disclosure was pursuant to a court order, so it cannot itself be an act of waiver. The final form of the opinion was disclosed in the course of that process. That does not seem to me to be a waiver either. Mr Lawrence did not rely on it as such.

[25]Then there is the Browne Jacobson advice. When Mrs McCalla’s report was first disclosed it contained no reference to that advice because it was redacted. Then an unredacted version was provided – presumably so that it could be used as part of the evidence in the proceedings. To some extent this is a point that has already been dealt with. When the proceedings were still in the Queen’s Bench Division the claimants made an application for all documents by which Browne Jacobson gave advice concerning the rights and liabilities of the parties and the local community in connection with the school. Collins J ordered that the disclosure should be given of the specific parts of the documents comprising the advice summarised in the relevant paragraph of the report, but no other part or parts, or alternatively that the defendants provide a witness statement from the solicitor involved confirming that the summary of advice was a fair summary. The defendants took the latter course, and provided a witness statement of Mr Radford of Browne Jacobson which deposes to just that, and adds a further small piece of elaboration. I was not provided with a transcript of the judgment of Collins J on that occasion, so I do not know how the basis of the application before him differs from the basis of the application before me.

[26]The unredacted form of the note was provided in connection with a witness statement of Mrs McCalla which refers to it and expressly waives privilege in it in the context of an application for disclosure of various documents which was being made by the claimants. It is not wholly clear what the purpose of its production was, or at least not from the circumstances of its production, so it is not apparent that the “transaction” should be taken to be any more than the production of the summary. Obviously Collins J was satisfied that the advice should be proved to be accurately portrayed, but he cannot have come to the conclusion that privilege was waived in relation to the full advice, because otherwise he would have ordered disclosure of the relevant documents (the advice is highly likely to have been recorded in writing). Just looking at that background, there is nothing which would persuade me that there has been a waiver there going beyond the contents of the report itself.

[27]Accordingly, starting from each of those acts of waiver (which is where, in my view, one has to start from) there is no waiver of privilege going beyond the acts and documents in question. In each case the transaction is limited, and there is no evidence on which I can conclude that fairness requires the production of more. There is nothing misleading in the documents themselves, and there is nothing in the purpose of the disclosure which would make it misleading not to disclose further material.

[28]So the claimants are going to have to rely on further material, and a different analysis, and indeed they do. I would first deal with Mr Lawrence’s submission that it would be wrong to enable the council to rely on advice at the beginning and the end of a period, and not deal with what happened in between, with the effect that the transaction is the whole thing (whatever the whole thing may be). This submission fails as being completely unsupported by any proper analysis or any authority. It is not a proper approach to questions of waiver of privilege.

[29]Next it is necessary to consider the other matters which are relied on as extending the waiver. Much of Mr Lawrence’s case on this boils down to the use to which the material is said to be put, and the cross-examination which he would wish to conduct in relation to it. This requires a little investigation of the issues and how they are dealt with in the evidence.

[30]The claimant’s case is that the defendants (and particularly the council) are acting and have acted in breach of what is described as their fiduciary duty in relation to the community and its interest in the school premises. Some of those breaches are historic and have nothing to do with legal advice, or at least nothing which makes it relevant to do any more than note the legal advice that has been obtained. Various specific acts are relied on as breaches of duty – for example, exclusion from the premises and the surrender of a liquor licence. So far as the 2007 decision is concerned, it is said that the recommendation in the preceding report that BOTHCA be “expelled” (the word used in the Particulars of Claim) was based on an error of law. It is said that the opinions of Mr Gold and Miss Laing were unwelcome to the children’s department and were disregarded, and that they were denigrated and suppressed when Mrs McCalla made her recommendations to cabinet.

[31]That is where the case starts from. So it is the claimants who start by relying on the legal advice. They say some of it was right, and some of it was wrong. In following the wrong advice, the council made an error in law. Whether it was right or wrong does not seem to me to depend on matters outside the expressions of the advice themselves.

[32]In her current major witness statement (which I am told is a consolidation of earlier witness statements) Mrs McCalla seeks (inter alia) to address the process leading up to the taking of the decision. She states in her witness statement that she wishes to address the report in full because it has been subject to what she regarded as unjustified criticism by the claimants. She then goes on to deal with it. She makes it clear that her evidence is given in response to criticisms of the report. It is important to note that she is responding to allegations made against her, not making her own positive case unprompted by what the other side have said. As Miss Collier submitted, that is plainly a relevant factor in determining whether privilege should be taken as waived, and the scope of any waiver. So far as the advice of Browne Jacobson is concerned, she cross-refers to the witness statement of Mr Radford and says that that confirms that the advice received from Browne Jacobson did support the recommendation in the report. So far as the earlier advice is concerned, she says that that advice was inadequate because the instructions given by Mr Gold to Miss Laing were inadequate. That would probably amount to a waiver of privilege in the instructions, but those have been disclosed anyway. I fail to see why it is a waiver of anything else. The instructions will speak for themselves. I do not see how this reference can be taken to widen the waiver that has already taken place. It does not render the Instructions potentially misleading, and does not amount to a further (transactional) waiver itself. I have not seen anything in Mrs McCalla’s witness statement which would amount to any fresh waiver. None of this extends the relevant transaction beyond the advice itself, and reference to the advice itself in these circumstances does not require an investigation into surrounding privileged material on the grounds of fairness. The advice was what it was; there is nothing misleading about referring to it in the manner in which Mrs McCalla does and the purposes for which she refers to it; so fairness does not require the disclosure (inspection) envelope to be pushed any wider.

[33]Mr Lawrence says that Mrs McCalla has criticised Mr Gold and Miss Laing, and has discounted their advice. She is bound to be cross-examined about this. I am sure he is right about that. However, that does not mean that she has waived privilege in anything. Whether she has waived privilege depends on what she says, and the purpose for which she says it. I have not detected that anything that she has said that has created a fresh waiver, or impliedly extended the “transaction” in respect of which any previous waiver has taken place, or created any unfairness (or incomplete picture, which is an aspect of fairness) which requires further disclosure of privileged material. What his submission amounts to is that further privileged material is or may be relevant. That may be right, but relevance is different from waiver of privilege. He says that the attack on Mr Gold’s advice can only fairly be considered by getting all the documents of which he sought disclosure, which he summarised as being documents evidencing the advice throughout the period, the debate inside the council in relation to the advice, and the Browne Jacobson advice. I do not accept that submission. It is the claimants who are raising the question of the correctness of the Gold report. What is said about it in the McCalla report speaks for itself. Whether that report is right or not can be judged by considering the nature of the attack and it does not need an investigation of privileged material in order for it to be fairly considered. In any event, yet again that is not the correct test for waiver of privilege.

Conclusions

[34]It follows that I determine that the claimants are not entitled to see any privileged material other than the material already disclosed to them. I would add that the original alleged waiver was extremely wide – it covered all the documents listed above. That claim was never sustainable, in my view, and Mr Lawrence realistically limited it in his submissions in the manner referred to above. I also add that I was not addressed on proportionality and do not base my decision on it.

[35]I do not, of course, rule out the possibility that at the trial the deployment of evidence, and the conduct of the case, may shed a different light on the waiver points, and may raise fresh ones, and it might become necessary to reconsider some of them. I am deciding this application on the basis of the material that I have had, and the case for waiver made out by the claimants. I am not pre-judging any issues which may arise out of the trial. That material was, I confess somewhat unsatisfactory in its quantity and manner of presentation, but I can only work with what I am provided with. The claimants did not make out their case for waiver on the evidence or otherwise.