Gary Pickett v David Balkind [2022] EWHC 2226 (TCC)

“Mr Prycenotes that the size of the Defendant’s Oak and distance from no.10 indicated that damage was reasonably foreseeable from the start and this was confirmed by the finding in 2011 that the foundations were much shallower than current requirements for building that distance from an Oak. At the time the absence of damage in no.11, between no.10 and the Oak, was evidently given more weight than it warranted, despite there being no firm information to suggest that the foundations were deep enough to prevent root spread towards no.10. The Prior Associates report comments at 4.7.3.2 that a sand layer found in one of the bore holes (BH1, March 2012) could be extensive enough to provide bearing for the foundation closer to the tree.”

“If no.11 had not been underpinned the original foundation, presumably similar in depth to that of no.10, would offer little resistance to root spread. In that event no.11 would also be vulnerable to the effects of the Defendant’s tree, but the site investigation found variations in soil conditions which would make that less likely. The Prior Associates report comments at 4.7.3.2 that the sand layer found in BH1 of March 2012 could be extensive enough to provide bearing for the foundation closer to the tree. That comment referred to no.10, but the borehole concerned was close to the boundary between the properties so, if the layer extends under no.11 as well, that would make it more resistant to movement. Sand does not shrink and swell like clay, although the soil sample from 0.8m in BH1 had a plasticity index of 46% indicating high shrinkage potential and 100% of it passed through a 425 micron sieve, indicating pure clay. However I have known cases where localised layers of sand in clay reduced the incidence and severity of damage significantly.”

“1.2. This report considers the evidence produced by others and additional evidence gathered by me to give an opinion on expert engineering issues that arise in this case. [ … ] 1.4. My instructions are from Womble Bond Dickinson LLP acting for Mr Gary Pickett and his insurers Lloyds Banking Group. These instructions are in connection with a dispute with Mr David Balkind relating to damage, including whether an Oak tree previously owned by Mr Balkind is responsible for damage to Mr Pickett’s property. The Oak is referred to as T13 throughout the report and in evidence produced by others. 1.5. On the 7th March 2022, I had a virtual meeting with Tim Pither, the structural engineer for the Defendant, and we subsequently agreed a joint statement dated 18 May 2022. [ … ] 2.1. My instructions are to give an opinion on the expert engineering issues that arise in this case. 3.1. The property was visited by me … on the 23rd June 2018. 3.2. I have reviewed the relevant disclosure given by the parties in the case and the lay witness statements that have been exchanged by the parties. 3.3 The British Geological Survey records available online had been reviewed by me, and I have considered the interpretation for foundation depths given by the current edition of NHBC Chapter 4.2 … 4. [Basic facts concerning the damaged property and the trees surrounding it] 5. [Details of damage to the property and repairs] 6. [Details of site investigations and ground conditions] 7. [Details of tree roots and DNA testing] 8. [Details of crack and level monitoring] 9.1. A report was prepared on behalf of a previous owners of No 12 by Martin Dobson Associates dated 24th September 2012. [Further details of this report.] [ … ]”

“2.1. This report follows the written instruction by DAC Beachcroft solicitors to prepare a report for litigation purposes, compliant with Part 35 of the Civil Procedure Rules (CPR) and Practice Direction 35 on the engineering aspects of this claim. 3.1. I inspected the property on 17th September 2019. 3.2. [Details of inspection.] 3.3. [Details of inspection.] [ … ] 3.6. I confirm that I have been provided with various pleadings, witness statements and a number of papers containing various reports, correspondence and schedules of works relating to this matter and to assist my understanding of the case. Various papers will be referred to within the report and where relevant a copy included within the Appendices. 4-9. [Chronological abstract, referring to subs net UK investigations in 2012, soil analysis results marital Thompson arboriculture report May 2012, crack monitoring and level monitoring, site investigations October 2015, further arboriculture report July 2016 bore holes dug June 2018] [ … ]”

“(1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”

“Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.”

“A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.”

“2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.”

“13.6.3. Whilst the parties’ legal advisors may assist in identifying issues which the statement should address, those legal advisors must not be involved in either negotiating or drafting the experts’ joint statement. Legal advisors should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement. Any such concerns should be raised with all experts involved in the joint statement.”

“11. On 3 May 2022 Mr Cutting wrote to me to say that he has been advised by his doctor that he will need to undergo eye surgery and has been given the date of 13 June 2022 for this procedure to be carried out. He added that due to the recovery period, he would not be able to attend the court to give evidence over the current trial dates, 12 15 July 2022., Attached hereto marked Exhibit [CC2]is a copy of Mr Cutting's letter.”

“I have been through Daniel’s comments on the Joint Statement and have made just a couple of minor changes where I was unable to be as definite as his wording. Attached is a word doc for your/Daniel’s comment. The only area where I have not dealt the suggestions/requests from Daniel is Clause 1.7, Daniel asked how desiccated, looking I assume for a figure. The desiccation of clay is open to substantially different interpretations. There is no clear level of desiccation shown by the testing and further this testing was carried out in March when you would expect desiccation to be the lower. I am not happy to put a figure in here. There may be some desiccation at 1.6 to 1.8 metres below ground level, possibly 2 or 3 %. However, if we start down this course of discussion, the Defendant might argue that taking the tree down would cause this zone to rehydrate and in turn create heave damage on the property, hence be better to keep the tree. That is not a particularly sound argument because there is not a large amount of desiccation, but it would however open up a whole new area of discussion where definite answers are difficult if not impossible to come by. Please note that I have given a completely new and separate proof for T13 in para 1.10. I hope you agree that this explains the lack of roots from any tree bar T13 thus dismissing many of the arguments from the defendant including those from Martin Dobson Ass. I will expand this methodology in my report, [comma in original] I am afraid I will not be able to attend Court in July. I was unavailable at the end of last week as I was seen by an eye consultant. I need an operation to hopefully restore full vision to my left eye. This is booked for the 13th June. I would hope to complete my report for you before that date. However, after the operation I will not be able to drive for probably 6 weeks and will not be able to read properly for in excess of 4 weeks. Further, I will have to take precautions to avoid infection after the operation. I have discussed my Opinion with one of my colleagues here at length and he is of the same view as I. He could attend Court with you if that would help.”

“What happened here was, I agree, a serious transgression and it is important that all experts and all legal advisers should understand what is and what is not permissible as regards the preparation of joint statements. To be clear, it appears to me that the TCC Guide envisages that an expert may if necessary provide a copy of the draft joint statement to the solicitors, otherwise it would not be possible for them to intervene in the exceptional circumstances identified. However, the expert should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement and the solicitors should not make any comments or suggestions save to both experts in the very limited circumstances identified in the TCC Guide. That is consistent with the fact that any agreement between experts does not bind the parties unless they expressly agree to be so bound (see Part 35.12(5)). There may be cases, which should be exceptional, where a party or its legal representatives are concerned, having seen the statement, that the experts' views as stated in the joint statement may have been infected by some material misunderstanding of law or fact. If so, then there is no reason in my view why that should not be drawn to the attention of the experts so that they may have the opportunity to consider the point before trial. That however will be done in the open so that everyone, including the trial judge if the case proceeds to trial, can see what has happened and, if appropriate, firmly discourage any attempt by a party dissatisfied with the content of the joint statement to seek to re-open the discussion by this means.”

“Thank you for your email. Mr Cutting's letter to me dated 3 May 2022 referred to in your email below contains material which is privileged and has been disclosed inadvertently by obvious mistake. Any attempt by your client to rely on its contents will be strenuously resisted. Without prejudice to that, and in any event, we do not accept your assertion that paragraph 13.6.3 of the TCC Guidance has been breached. We will re-file our application shortly without the privileged material. Please can you delete/destroy all copies you have of the letter concerned and confirm to us that you have done so. Regarding Mr Cutting's eye operation, we will ask his treating surgeon for a further letter confirming the extent of his post-operation recovery period.”

“My client does not accept that the letter contained in your application made on 1st June was privileged and we intend to raise this matter at the PTR hearing. Your signed witness statement explicitly referred to the letter and it was included in the exhibit. The letter was used to support your application for an adjournment.”

“12. On 3 May 2022, Mr Cutting wrote to me explaining that he will need to undergo eye surgery under general anaesthetic and has been given the date of 13 June 2022 for this procedure to be carried out. He further explained that he will not be able to read properly for in excess of 4 weeks. Attached hereto marked Exhibit CC2 is a copy of the letter from Mr Cutting. 13. The first part of Mr Cutting's letter to me of 3 May 2022 explaining about his need to undergo eye surgery included his comments in respect of an aide memoire my firm had sent him in connection with the preparation of the expert's joint statement in these proceedings. 14. On 6 May 2022 I received an email from Mr Cutting's secretary, Julie Warren, attaching a copy of a letter to Mr Cutting from his consultant ophthalmic surgeon, Mr C G Stephenson dated 6 May 2022 confirming that Mr Cutting will be required to apply eye medications for 4 weeks after the surgery and will be medically unfit to give evidence for at least 1 month after the date of the surgery. Attached hereto marked Exhibit [CC3] is a copy of the letter from Mr C G Stephenson referred to. 15. On 25 May 2022 Tom Cutting of Prior Associates sent my assistant, Ms Grace Billings, a letter explaining that once the recovery period is complete, Mr Cutting requires an eye test and new glasses to be able to attend and give evidence in court. Until he has acquired his glasses his vision will be greatly impaired and he will not be able to read. Mr Cutting estimates a further two weeks after the initial recovery period for the purpose of obtaining the glasses. Attached hereto marked Exhibit [CC4] is a copy of a letter from Tom Cutting of Prior Associates dated 25 May 2022 referred to. 16. In light of the circumstances as set out above, I prepared an application to the Court asking that the court agree to adjourn the current trial dates to a time when Mr Cutting is fully recovered from his eye surgery and in a position to provide evidence in court, specifically, no sooner than 25 July 2022. 17. I filed the application and served it on the Defendant's solicitors on 31 May 2022. A sealed copy of the application notice and my witness statement dated 31 May 2022 in support is attached hereto marked Exhibit CC5. 18. Unfortunately, and in error, when preparing my witness statement in support of the application to adjourn the trial I included as Exhibit CC2 to that statement a complete and unredacted copy of Mr Cutting's letter to me of 3 May 2022. The letter was privileged and I did not intend to waive privilege of the section of the letter which did not concern Mr Cutting's medical condition. My inclusion of a complete copy of the letter without redaction was an inadvertent and obvious error.”

“15. On 26 May 2022, following our telephone conversation, Grace Billings sent me an email with a copy of the draft application [for an adjournment of the trial] and unsigned witness statement of Christian Charlesworth of WBD requesting the Court adjourn the trial listed for 11 July 2022. A copy of the email, application and unsigned witness statement is exhibited at CXB2 pages 12 to 41. 16. I reviewed the draft paperwork and noted Mr Charlesworth had, at paragraph 11 of the unsigned witness statement, stated he had been advised by Mr Cutting on 3rdMay 2022 by letter that he would not be available for trial (CXB2 page 20). Mr Charlesworth exhibited a copy of the letter in the exhibit to his witness statement (CXB2 page 37). 17. I did not consider that the Claimant had inadvertently sent me any privileged material. The letter exhibited to the witness statement was specifically referred to by Mr Charlesworth at paragraph 11. The paperwork was sent to me at my request so that my client could consider the merits of the Claimant’s application to adjourn the trial. The Claimant ought to have appreciated the paperwork would be provided to my client for that purpose. I believed that the Claimant intended to rely on the letter in the form it was sent to me due to the conduct of his solicitors. 18. I had no reason to doubt that the draft witness statement and exhibit were prepared and reviewed by Mr Charlesworth, who is described as a Legal Director and who had conduct of the matter on behalf of WBD and the Claimant. 19. The documents were sent to me by Grace Billings, a paralegal and Mr Charlesworth was copied into the email. I would expect that Mr Charlesworth approved the email and attachments being sent and was aware that they had been sent to me on 26 May 2022. [ … ] 44. Mr Cutting’s letter to WBT attracted legal professional privilege until that privilege was waived on behalf of the Claimant. … ”

“4. I make this supplemental witness statement to clarify and correct matters in my first witness statement. 5. I consider it necessary to clarify that my original error was to include as Exhibit CC2 to my draft unsigned witness statement in support of the Claimant's application to adjourn the trial, a complete and unredacted copy of Mr Cutting's letter to me of 3 May 2022. 6. A copy of the Claimant's draft application, draft unsigned witness statement and the exhibits in support (which included, in error, an unredacted copy of the letter from Gerry Cutting Prior Associates dated 3 May 2022) was sent to the Defendant by email from Grace Billings dated 26 May 2022. 7. My error was then carried through to the filed application. 8. I also wish to correct paragraph 17 of my witness statement filed in support of the Claimant's application for an injunction dated 14 June 2022 in which I stated that the Claimant's original application to adjourn the trial was both filed at court and served on the Defendant on 31 May 2022. In fact, whilst the Claimant's application was filed with the Court on 31 May 2022, the application was not served on the Defendant. The Defendant was informed that the application had been filed on the following day, 1 June 2022, by email (see p43 of CXB2).”

“58. As regards the need for oral evidence, Mr Ashworth reminded us that it is well-settled practice that if a court finds itself faced with conflicting statements on affidavit evidence, it is usually in no position to resolve them, and to make findings as to the disputed facts, without first having the benefit of the cross-examination of the witnesses. Nor will it ordinarily attempt to do so. The basic principle is that, until there has been such cross-examination, it is ordinarily not possible for the court to disbelieve the word of the witness in his affidavit and it will not do so. This is not an inflexible principle: it may in certain circumstances be open to the court to reject an untested piece of such evidence on the basis that it is manifestly incredible, either because it is inherently so or because it is shown to be so by other facts that are admitted or by reliable documents. Mr Ashworth referred us in support to Re Hopes (Heathrow) Ltd, Secretary of State for Trade and Industry v. Dyer and others [2001] 1 BCLC 575, at 581 to 582 (Neuberger J). He also referred us to paragraphs 17 and 18 of the judgment of Mummery LJ in Doncaster Pharmaceuticals Group Ltd and Others v. The Bolton Pharmaceutical Company 100 Ltd [2006] EWCA Civ 661, which provides a reminder of the caution the court should exercise in granting summary judgment in cases in which there are conflicts of fact which have to be resolved before judgment can be given. Mr Ashworth said that these principles apply equally to the case in which the evidence is given by witness statement rather than by affidavit, and I agree.”

“13. The relevant question in this appeal is in what circumstances a party who has inspected copy documents which were subject to LPP or PII, but which have been voluntarily, but mistakenly, sent to him for inspection must return them or may be restrained from using them in the litigation in which they were disclosed. There have been a number of cases in which this problem has arisen in comparatively recent times, including several before the advent of the CPR and at least one since the CPR came into force. They have all considered the circumstances in which an injunction might be granted to order the return of the documents or to restrain their use. 14. Rule 31.20 provides: ‘Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.’ So far as we are aware, until now no-one has suggested that different principles apply to the operation of that rule from those applicable to the question what, if any, injunction should be granted. [ … ] 16. In our judgment the following principles can be derived from those cases: i) A party giving inspection of documents must decide before doing so what privileged documents he wishes to allow the other party to see and what he does not. ii) Although the privilege is that of the client and not the solicitor, a party clothes his solicitor with ostensible authority (if not implied or express authority) to waive privilege in respect of relevant documents. iii) A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived. iv) In these circumstances, where a party has given inspection of documents, including privileged documents which he has allowed the other party to inspect by mistake, it will in general be too late for him to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief. v) However, the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud. vi) In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake. vii) A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and: a) the solicitor appreciates that a mistake has been made before making some use of the documents; or b) it would be obvious to a reasonable solicitor in his position that a mistake has been made; and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief. viii) Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive; the decision remains a matter for the court. ix) In both the cases identified in vii) a) and b) above there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances. x) Since the court is exercising an equitable jurisdiction, there are no rigid rules.” ‘Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.’ i) A party giving inspection of documents must decide before doing so what privileged documents he wishes to allow the other party to see and what he does not. ii) Although the privilege is that of the client and not the solicitor, a party clothes his solicitor with ostensible authority (if not implied or express authority) to waive privilege in respect of relevant documents. iii) A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived. iv) In these circumstances, where a party has given inspection of documents, including privileged documents which he has allowed the other party to inspect by mistake, it will in general be too late for him to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief. v) However, the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud. vi) In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake. vii) A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and: a) the solicitor appreciates that a mistake has been made before making some use of the documents; or b) it would be obvious to a reasonable solicitor in his position that a mistake has been made; and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief. viii) Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive; the decision remains a matter for the court. ix) In both the cases identified in vii) a) and b) above there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances. x) Since the court is exercising an equitable jurisdiction, there are no rigid rules.”

“I believe that the principle underlying the rule of practice exemplified by Bucknell v. British Transport Commission [1956] 1 Q.B. 187 is that where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an 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. … In these circumstances, I consider that the court must ask itself whether the plaintiffs have made use of the boatswain’s statement before the face of the court. Plainly they did not do so when they put it to the seaman in 1975, for this was on a privileged occasion. Nor in my view did they make the boatswain’s statement part of the material in the action when they cross-examine to the seaman on Paras 14 and 15 of his statement dated 1 November 1978. What the plaintiffs were taxing him with was not the previous statement of the boatswain, but his own previous statement; and the fact that this statement took the shape of an assent to something previously said by the boatswain does not mean that the boatswain’s statement is thereby made part of the material which the plaintiffs were asking the court to take into account. It is the assent which matters, not the source of the material to which assent was given. This being so, I consider the plaintiffs have not waived privilege in respect of any part of the boatswain’s statement.”

“said that Mr. Baker [of the plaintiffs] was surprised at the part of the report dealing with the question whether there was evidence of dishonesty or breach of fiduciary duty because he had not given instructions to obtain such evidence, Mummery J. asked why this part of the report was included if Mr. Price's [the investigator’s] instructions did not extend so far: ‘Was it his idea or was the idea planted in his mind by [the first defendant]?’ Mr. Lyndon-Stanford replied, ‘My Lord, it is a closed book.’ After some further exchange, Mr. Lyndon-Stanford observed, ‘Your Lordship will hear specific evidence about that,’ referring as I see it to the ambit of Network's instructions as well as to Mr. Baker's response.”

“In both those cases what was material in the interlocutory proceedings was the fact that the plaintiff had been given advice to a particular effect and not the substance of the advice or the extent of the instructions given to the lawyer. In the instant case, the plaintiffs deployed Mr. Baker's and Mr. Di Donna's evidence in answer to the claims made by Mr. Comer and Mr. Price as to the knowledge of the plaintiffs and the ambit of Network's retainer. Moreover, these very matters have been brought into issue by Mr. Lyndon-Stanford.”

“Mr. Purle [for the plaintiffs] submitted that, even if privilege has been waived to the extent of the evidence actually adduced in the course of the application for a Mareva injunction, so that the affidavit and the statement by Mr. Comer and Mr. Price can be referred to at the trial, nonetheless the plaintiffs have not waived privilege in relation to the conversations between Mr. Price and Mr. Lee, which were not specifically referred to in the interlocutory proceedings. 1 reject that submission also. The point can be tested in this way. Suppose that Mr. Comer or Mr. Price had exhibited a transcript of the tape to an affidavit in support of their claims as to the extent of the knowledge of the plaintiffs and the ambit of Network's retainer. Would the plaintiffs then have been entitled to claim privilege? It seems to me that the answer to that question must be ‘No.’ If that is right, the plaintiffs cannot claim privilege now.”

“The question is whether, if privilege is waived in relation to part of a document or evidence by production of a tape or of part of a conversation, fairness requires that the other party should be entitled to adduce the whole of the document or evidence of the whole of the conversation to ensure that the court is not misled by seeing part of it out of context. It is I think easier to conclude that fairness does not require the disclosure of the whole of a document, that part can be sealed up, than to conclude that fairness does not require the disclosure of the whole of a conversation which, as Mr. Chambers [counsel for the first and second defendants] expressed it, is a seamless whole. The question can only be answered by a judge, happily in this case not the judge hearing the action, after he has read the whole of the document or transcript. In this case, having read the transcript, I do not think that it would be fair to withhold part of it.”

“There is, on the authorities, a two-stage test. First, was it evident to the solicitor receiving the privileged documents that a mistake had been made? If so, the solicitor is expected to return the documents. If it was not so evident would it have been obvious to the hypothetical reasonable solicitor that disclosure had occurred as a result of the mistake? There is clear evidence from [the claimant’s solicitor] that it was not obvious to him that a mistake had been made. Mr Davies, in his first submission, submits that a number of factors should have led the judge to conclude that there had been an obvious mistake in the disclosure of the privileged documents. He lists eight such points which, he submits, cumulatively, are compelling. I shall first consider them singly in turn. The first point was the abundance of the privileged material. Mr Davies submitted that that should have made it obvious that there had been such an error. For my part, it seems to me that that abundance points the other way. This is not a case where the disclosure of documentation was so extensive that it would have been reasonable to expect the occasional mistake. The total number of pages exhibited was only some 440 of which no less than 127 were the privileged documents. In relation to the correspondence the privileged pages amounted to more than half of that part of the exhibit. In IBM Mr Justice Aldous had suggested that the larger the discovery the more likely there was to be a mistake. I agree. [ … ] Looking at those points, which were highlighted by Mr Davies, individually and cumulatively, I am not satisfied that they show that the judge erred in concluding that it would not have been obvious to the reasonable hypothetical solicitor that a mistake had occurred. On the contrary, it seems to me that for the reasons given by the judge it was entirely reasonable to conclude, as [the claimant’s solicitor] in fact did, that the decision to include the privileged material was a deliberate one. Accordingly, on the main ground of appeal I would not accept the defendant's arguments.”

“The defendant's solicitors mistakenly exhibited privileged documents to an affidavit and sent them to the plaintiff's solicitors. The effect of doing so was to waive their privilege. The general principle in this regard is stated by Lord Justice Slade, with whom Lord Justice Woolf and Sir George Waller agreed, in Guinness Peat Limited v Fitzroy Robinson [[1987] 1 WLR 1027] (page 1044 C) in the passage quoted by Lord Justice Peter Gibson. In that case the court was considering the position of documents disclosed on discovery after they had been inspected. It is, however, correctly conceded by Mr Davies that the same principles apply in the situation with which we are concerned, namely where documents have been exhibited to an affidavit and sent to the other party. To adopt the approach of Lord Justice Slade to this situation, ordinarily a party to litigation who sees a particular document or documents exhibited to the other side's affidavit or affidavits is fully entitled to assume that any privilege which might otherwise have been claimed for it or them has been waived.”

“7. … 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.”

“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.”

“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. … ”

“13. … I consider that I am bound by the approach taken in Dunlop Slazenger International Ltd (supra) by Waller and Thorpe LJJ in relation to this issue. In my view, the judgments in that case make it clear that, where, as here, there has been extensive deployment in interlocutory proceedings, such as a summary judgment application, of privileged material (albeit without reference to specific documents) in order to support a party’s case on the substantive merits of his claim or defence, such deployment engages the collateral waiver principle, and it is then too late for the deploying party to attempt to turn the clock back. That is the case even if, as here, the deploying party is seeking to preserve its position by asserting that it has not yet made up its mind whether to adduce the evidence, which it deployed at the summary judgment stage, at trial.”

“16. … Waller LJ’s contemplated exception of a ‘limited waiver’ would appear to exclude any case where there had been deployment of the privileged material at an interlocutory stage and such deployment had related to ’the merits of the case as a whole’.”

“20. … (ii) Once a party (on an interlocutory application) has opened up issues on the merits of the case, which will form part of the very questions to be determined by the trial judge, no party which has chosen to refer to privileged material or discussions for the purposes of that application, should be entitled use them to his advantage on the merits of the case in the interlocutory context, but then assert a right to prevent its opponent from doing so on the merits at the trial. … 21. Accordingly, in my judgment, the principle of collateral waiver is clearly engaged in the present case. In circumstances where the Claimant has deliberately chosen, in the context of the summary judgment application, to waive legal professional privilege by referring extensively to the contents of the [third party] interviews with his former solicitors, in order to support his case on the merits of his claim, it would not be just, fair, or consistent with the principles expounded in the authorities, to permit the Claimant, on the simple pretext of saying that he had not made up his mind whether to refer to such evidence at trial, to withhold disclosure of the underlying privileged materials relating to such interviews.” (Emphasis supplied.)

“16.23 … 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 not the test. Instead, the test is whether the contents of the document are being relied on, rather than its effect. … 16.24 But the authorities take a less benevolent view where the maker refers to the document in order to persuade the court at an interlocutory stage to take a particular view of the merits of the case (e.g. an application for a freezing order, or for summary judgment). This is deployment of the privileged material which operates as a collateral waiver, and once used it is too late to turn back the clock, unless perhaps the use can be shown to be for a limited purpose at the interlocutory stage.”

“72. PAG’s point on deployment is that at the various case management conferences in these proceedings RBS has frequently emphasised the narrow nature of the regulatory findings. PAG contends that RBS did so seeking to advance its case at the interlocutory hearings, both in general and in relation to disclosure, which was the main issue at these hearings. In doing so RBS has deployed the material in such a way as to waive privilege. 73. I do not accept that submission. The basis of the judgment which led to the orders for production was the pleaded case of RBS, not what happened in the proceedings. … The interlocutory stages of this case have not been concerned with the merits, they have been concerned primarily with disclosure. While the reference to the regulatory findings did, at the instigation of RBS, inform the court’s orders for disclosure by providing part of the relevant context, they did no more than that. The underlying merits were not the issue. Moreover the disclosure process has now moved on.”

“The process of authorship is entirely different from that of judicial decision. The author, no doubt, has the benefit of a broad and comprehensive survey of his chosen subject as a whole, together with a lengthy period of gestation, and intermittent opportunities for reconsideration. But he is exposed to the peril of yielding to preconceptions, and he lacks the advantage of that impact and sharpening of focus which the detailed facts of a particular case bring to the judge. Above all, he has to form his ideas without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case.”

“31. … It seems to me that CPR 35.10(4) is designed primarily to give protection to a party who would otherwise have waived privilege by being compelled to set out matters in an expert's report. It is also designed so far as possible to prevent lengthy arguments as to whether there has been a waiver of privilege either prior to the trial or indeed at trial leading to an entitlement to further disclosure. [ … ] 34. … Material supplied by the instructing party to the expert as the basis on which the expert is being asked to advise should in my view be considered as part of the instructions and thus subject to CPR 35.10(4).”

“31. … The point has been made that experts must be free to submit drafts to clients and their legal advisers, so that factual misconceptions can be corrected. A further that a great deal of time could be wasted if all these documents were disclosable, because the opposing party would have to comb through the various versions of a report to identify any changes… Another possibility is that lawyers and experts might begin to subvert the system by avoiding written communication in favour of off the record conversations. 32. I accept, in the light of these arguments, that it would not be realistic to make draft experts’ report disclosable. I do not, however, consider that privilege should apply to the instructions given to experts. … 33. Under the new system, transparency of instructions to experts will be particularly important. … I therefore recommend that expert evidence should not be admissible unless all written instructions (including letters subsequent upon the original instructions) and a note of any oral instructions are included as an annex to the expert’s report.”

“As it seems to me the key to the case, and to the sense to be attributed to the term ‘instructions’ in CPR 35.10(3) and (4), is the imperative of transparency, a general theme of the CPR but here specifically applied to the deployment of experts' reports. Thus the aim of CPR 35.10(3) and (4) is broadly to ensure that the factual basis on which the export has prepared his report is patent. That approach demands a wide reading of the term ‘instructions’ … ”

“Material supplied by the instructing party to the expert as the basis on which the expert is being asked to advise should in my view be considered as part of the instructions and thus subject to CPR 35.10(4).”

“35. There is however in this court an alternative string to the defendants' bow. They say that it must follow that the experts in this case have not stated ‘the substance of all material instructions…’. Thus they say there has been a failure to comply with CPR 35.10(3) and an order for disclosure of the statement and the report should be made under CPR 35.10(4). 36. This submission as it seems to me misunderstands the relationship between CPR 35.10(3) and CPR 35.10(4). The obligation under CPR 35.10(3) is to disclose the substance of all material instructions. The protection under CPR 35.10(4) relates to ‘any specific document’ and ‘questioning in court’ unless the statement of instructions given under paragraph (3) is inaccurate or incomplete. There is no requirement to set out all the information contained in the statement or all the material that has been supplied to an expert. The only obligation on the expert is to set out ‘material instructions’. But the protection applies to any particular document and any particular question over any area, and has to do so because disclosure of part of privileged material by implication when deployed may waive other privileged material.”

“43. There is a plain impact on the scope of legal professional privilege, and thus a degree of protection against the loss of privilege is given by the restrictions on disclosure provided for by 35.10(4). I think it a premise of the arrangements constituted by 35.10(3) and (4) that in the ordinary way the expert is to be trusted to comply with 35.10(3): the effect of the 35.10(4) restrictions is that the party on the other side may not as a matter of course call for disclosure of documents constituting the expert's instructions as a check to see that 35.10(3) has been fulfilled. There must be some concrete fact giving rise to ‘reasonable grounds’ within the closing words of 35.10(4). It is unsurprising that the expert is thus to be trusted; it is of a piece with his overriding duty to help the court (CPR 35.3). Overall, 35.10(4) in my view strikes an important balance between on the one hand the protection of the party whose privilege is lost, and on the other the vindication of 35.10(3) where there is a real question-mark as to its fulfilment.”

“Perhaps if the maker goes too far, he can be put to his election as to whether to leave in the reference and produce the document or take it out and retain privilege.”

“Every party to a cause or matter shall be entitled, at any time, by notice in writing, to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice. And any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such cause or matter, unless he shall satisfy the Court or a Judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the Court or Judge shall deem sufficient for not complying with such notice.”

“It is then said that the plaintiffs cannot avail themselves of a claim to protection because they have referred to the deeds in their pleadings, and R.S.C., Ord. 31, r. 15, is relied on. But that rule only says that if a party will not produce a document to which he has referred in his pleadings, he shall not afterwards be at liberty to put such document in evidence. That is the penalty. He may prefer to lose part of his claim rather than produce the document. In my opinion, that rule does not take away the privilege of the documents, but only prevents them from being put in evidence unless produced.”

“With respect to the second point, we are invited to say that Order XXXI., rule 15, has introduced a new practice, namely, that where a document is referred to in the pleadings, all privilege with regard to it is gone. The rule does not say any such thing.”

“First of all, the reference in this paragraph to those documents does not, in my judgment, amount in any sense to a waiver of the claim of privilege. It would, I think, have been competent to the defendants, when it was proposed to read that paragraph, to object to its being read unless the documents were produced. That course was not taken, and the mere fact that the paragraph was read and relied upon without objection does not, in my opinion, amount to a waiver of the privilege. It has been laid down that a reference to a document in a pleading does not amount to a waiver of a claim of privilege.”

“The learned Master of the Rolls, however, held that this did not amount to a waiver of privilege, but was simply what he called a reference to a document. He referred to the fact that if, for example, a document is referred to in a pleading, the other side could apply to the court for production of the relevant document. If so, the party who has referred to the document in his pleading may prefer to withdraw his pleading rather than produce the document. If he does so, then there is no waiver of privilege, because the waiver of privilege in those circumstances, if it does occur, will take place on the production of the document and not upon the reference to the document in the pleading.”

“Earlier authorities are no longer generally of any relevance once the CPR applies.”