“82. Once I had come to the firm view that we were entitled to terminate the contracts based on the geotechnical event, I prepared a communication to the board seeking their support for this decision by email which I sent on23 January 2022 . 83. Without waiving privilege over the contents of the advice, this included legally privileged advice which was prepared by Lerato Legong of Clifford Chance LLP for the board. I also called some of the directors and discussed the decision. For example, Harry Kenyon Slaney had some questions which included about the technical materials we had provided and then remembered that we spoke on the phone to discuss his questions. I also agreed with the company chairman, Dr Vincent Malfay, and the chair of the IC, Rick Memal. The board members were unanimous in their support to terminate the acquisitions under the material adverse effect provision. They understood we should not go through with the transaction. 84. It is not unusual for the Sibanye Stillwater board to take decisions by email. We are a digital first company so most of our meetings are virtual with only two face to face board meetings on an annual basis. As such, many of our board approvals are obtained by email on a round robin basis while making sure that the board is fully appraised and can, therefore, make an informed decision. Our memorandum of incorporation allows for this type of approval but where the chairman detects some dissent, he will normally call a board meeting with the aim of getting consensus. In that case this was not necessary.”
“The second question is whether the whole of the memorandum being a privileged communication between the legal adviser and the client, the plaintiffs may waive privilege with regard to the first two paragraphs of the memorandum but assert privilege over the additional matter .... In my judgment, the simplest, safest and most straightforward rule is that if a document is privileged then privilege must be asserted, if at all, to the whole document unless the document deals with separate subject matters so that the document can in fact be divided into two separate and distinct documents, each of which is complete.”
“(1) Legal professional privilege is regarded as a fundamental right of the client whose privilege it is. The loss of that right through waiver is therefore to be carefully controlled; (2) Generally, privileged documents cannot be ordered to be provided in litigation by the party whose privilege it is unless this is as a result of a waiver; (3) Absent waiver, the fact that such documents might be highly relevant does not entail their production; (4) Applications for documents based on a waiver of privilege entail at least the two following fundamental questions: (a) Has there been a waiver of privilege? (b) If so, is it appropriate to order production of privileged documents other than those to which reference has been made which was the foundation for the waiver? (5) The concept of fairness underpins the rationale for having a concept of waiver which can then entail the production of further privileged documents. This is because if the party waiving is, by the waiver thereby creating a partial picture only of the relevant legal advice, it is unfair to the other party to allow him to ‘cherry pick’ in this way. (6) That said, it is also clear that the question of whether or not there has been a waiver is not to be decided simply by an appeal to broad considerations of fairness.”
“As to the question of waiver itself, it is not easy to find a succinct and clear definition of when it arises, going beyond general statements to the effect, for example, that the party alleged to have waived them has deployed them in some way as part of its case. But on any view, in my judgment, first, the reference to the legal advice must be sufficient (a point I return to below) and, second, the party waiving must be relying on that reference in some way to support or advance his case on an issue that the court has to decide. I give two examples of what is clearly not waiver. First, a purely narrative reference to the giving of legal advice does not constitute waiver. This is because, on any view, there is no reliance upon it in relation to an issue in the case. Nor does a mere reference to the fact of legal advice along these lines, ‘My solicitor gave me detailed advice, the following day I entered into the contract.’ That is not waiver, however tempting it may be to say that what is really being said is, ‘I entered into the contract as a result of that legal advice.’ The corresponding point is that if that latter expression is used, then there will be waiver.”