Holyoake & Anor v Candy & Ors

MR JUSTICE NUGEE: I amcurrently hearing the trial of this action which started on 8 February 2017. This judgment concerns an application made on Day 13 (last Friday, 24 February) by Mr Lord QC on behalf of the defendants for further disclosure from the claimants on the grounds of collateral waiver, a principle which I had reason to describe recently in Glenn v Watson [2016] EWHC 3259 (Ch) at [15] as follows:

The question has come about in this way: the first claimant, Mr Mark Holyoake, has in this action made a number of allegations against the defendants, including allegations of certain threats made to him by them.

He started giving evidence on Day 2 (Thursday 9 February) and was cross-examined by Mr Lord over a number of days. In the course of his cross-examination, Mr Lord suggested to him on more than one occasion that he had made up certain specific allegations. I need not refer to them all, but one example will suffice.

In re-examination, Mr Stewart QC for Mr Holyoake put to him a number of emails which he wrote to his then lawyers, Collyer Bristow LLP, and counsel then instructed, in 2012, one email on 29 March 2012 and a series of four emails numbered 1 to 4, two on the evening of 15 April 2012 and two on the morning of 16 April 2012, and asked him to confirm certain passages in those emails which referred to threats said to have been made to him by the defendants.

Mr Stewart did so in reliance on section 6(2)(b) of the Civil Evidence Act 1995, which expressly permits a previous statement of a witness to be adduced in civil proceedings "for the purpose of rebutting a suggestion that his evidence has been fabricated."

Mr Lord, for his part, does not accept that the account Mr Holyoake gave in the emails is consistent with the account he gave in the witness box and has indicated a number of discrepancies which he will in due course rely on. But I am not, in this application, concerned with those matters, nor with any question of admissibility - Mr Lord does not challenge the admissibility of the emails - nor with a possible application that has been mooted, but not so far brought, for Mr Holyoake to be recalled for further cross-examination. I am simply concerned with whether Mr Stewart's reliance on the emails has had the effect of waiving privilege in other documents.

It is not disputed (i) that the emails were privileged; (ii) that, by putting the emails to Mr Holyoake, Mr Stewart has, on the claimants' behalf, waived privilege in them; (iii) that the emails are now in evidence; and (iv) that now that they are in evidence, they are in evidence for all purposes and either side can make use of them.

The emails do contain Mr Holyoake's instructions on other matters than those specifically put to Mr Holyoake in re-examination. Mr Stewart explained that, having decided to waive privilege in the emails so as to be able to rely on what Mr Holyoake said in them about the specific matters he wanted to ask him about, he took the view that he could not then seek to withhold any part of the emails in the light of the decision of the Court of Appeal in Great Atlantic Insurance Company v Home Insurance Company [1981] 1 WLR 529, to the effect that if you waive privilege as to part of a document, you waive privilege as to the whole of the document unless it is a clearly separable document dealing with completely different subject matters.

That seems to me to be right, although I do not think I need decide anything to that effect as Mr Stewart has clearly, in fact, now waived privilege on behalf of the claimants in the whole of the emails.

The claimants have also accepted that a further email numbered 5, sent on the morning of 16 April, formed part of the same series as the four sent on 15 and 16 April and should be disclosed as well. Again, I think that is plainly right, although again I do not formally have to decide that because privilege has now been waived in that email and a copy provided.

It is on the basis of the disclosure of the emails of 29 March and 15 and 16 April that Mr Lord based the application for further disclosure. He sought four classes of documents as follows:

No difficulty arises over the first class. In the email of 29 March Mr Holyoake says:

So much for class 1. of the defendants' four classes. The other three are much more contentious. I will take class 2. next.

It is common ground that the most recent detailed consideration of the principle of collateral waiver is that by Mann J in Fulham Leisure Holdings Limited v Nicholson Graham & Jones [2006] EWHC 158 (Ch). The principles derived by Mann J from the earlier cases are set out at [11] of his judgment as follows:

Then, after referring to some of the earlier authorities, he deals at [17] with the use of the words "transaction" and "issue", saying that they are apparently the same concept, and at [18] says this:

Then, at [19], he deals with a further principle, which is that:

Mr Lord therefore said one had to start with identifying the transaction or issue. In this context, he referred me to R v Seaton, [2010] EWCA Crim 1980, a decision of the Court of Appeal Criminal Division, where at [43] the Court of Appeal set out its conclusions, including these:

Mr Lord sought to draw from that the word "topic" as an alternative to "transaction" or "issue" so as to produce the trilogy "transaction or issue or topic", and then suggested that the transaction or issue or topic in the present case as to which waiver had been given was the claimants' or their representatives’ account to their lawyers of the defendants' allegedly threatening and unlawful behaviour towards the claimant and his family, together with the alleged effects.

However I do not find R v Seaton or its use of the word "topic" of any real assistance. It is true that the case was concerned with waiver of privilege, and in particular with waiver of privilege in what a party had told his lawyer in order to rebut a suggestion of recent fabrication, but it was not concerned, so far as I can see, with any question of collateral waiver.

The point the Court of Appeal was making is that by waiving privilege in that communication to his own lawyer, the defendant was not waiving privilege generally, but only on that particular matter. He could be cross-examined as to exactly what he told the solicitor on that topic, where "topic" meant in the particular case the topic of how he came to sustain injuries to his hands (see [8]). But nothing in what the Court of Appeal said addressed the question of whether, by waiving privilege in what he said to the solicitor on that topic on one occasion, the defendant thereby opened himself up to being cross-examined as to what he said to his solicitor or to other lawyers on the same topic or related topics on some other occasion. It was simply not in issue in that case. I therefore put R v Seaton and its use of the word "topic" on one side.

That means one goes back to the Fulham case and the reference to "transaction" or "issue". That at first blush seems a bit odd as one would not have thought that a "transaction", ie something that happened, was a similar concept to an "issue", ie something that is in dispute in a case. But the explanation is that Mann J took the word "transaction" from the judgment of Hobhouse J in General Accident Fire and Life Assurance Corporation Limited v Tanter [1984] 1 WLR 100, and the word "issue" from the judgment of Mustill J in Nea Karteria Maritime Company Limited v Atlantic and Great Lakes Steamship Corp [1981] Comm LR 138, both words being picked up by Auld LJ in R v Secretary of State for Transport ex parte Factortame (1997) 9 Admin Law Reports 519. It is therefore helpful to go back to the earlier cases to understand what "transaction" or "issue" refers to.

In Nea Karteria, to which I was not referred but which is adequately summarised in Tanter, privilege was waived in an interview between a witness, a seaman, and the plaintiff's Greek lawyer. The account given by the seaman in that interview was different from his evidence at trial.

Mustill J said that the issues in relation to which the material had been deployed were as follows:

On that basis Mustill J held that there had been a collateral waiver of a list of questions prepared by the plaintiff's solicitors for their Greek lawyer to use at the meeting on the basis that that formed the agenda, as it were, of the meeting.

Hobhouse J, in Tanter, said of this (at 113F):

And again he said this (at 113H):

In Tanter, privilege was waived in a memorandum between a firm of brokers and its solicitors, which reported on a number of matters, including, in particular, a conversation said to have taken place that day between a director of the brokers and an underwriter, Mr Posgate. Hobhouse J held that it had not in fact been put in evidence yet, although it had been put in cross-examination of Mr Posgate, but that if and when it was put in evidence, it would waive privilege in that communication, not in other communications. The way he put it is this -- this is at 114B:

Then, at the end of his judgment, he summarised the principles upon which he was relying and they included as follows (at 114F):

That is a reference to the judgment of Cotton LJ in Lyell v Kennedy which had been previously quoted by Mustill J and was quoted by Hobhouse J as follows:

Going back to Hobhouse J’s summary of his principles, he continued at "Sixth" as follows at 114H):

Then at "Eighth" he said this at (at 115D):

That review of those authorities explains how the same concept can be described as both "the relevant issue" by Mustill J and "the relevant transaction" by Hobhouse J. What Mustill J refers to as "the issue" is what was said at the meeting between the seaman and the Greek lawyer, and the atmosphere at the meeting. It is not the underlying facts about which the seaman was interviewed. What Hobhouse J refers to as "the transaction" is the same concept of what somebody said on a particular occasion. It is not the subject matter of those conversations.

With that digression, I can return to what Mann J meant in Fulham at [11], when he said that you first have to identify the transaction in respect of which disclosure has been made. Unless he is consciously taking a different view to Hobhouse J, he means the actual communication in which privilege is waived. I do not read him as taking any different view from Hobhouse J. When, therefore, at [18] he says, "First of all there is the actual transaction or act in respect of which disclosure is made", he means the same as Hobhouse J does when he says it is what somebody said on a particular occasion.

In the present case, that is the emails of 29 March and 15 to 16 April. It is not, as Mr Lord submitted, all communications between the claimants and their lawyers on the topics of alleged threats and their consequences.

It is true that Mann J goes on to say at [18] that, "... in order to ascertain whether that is in fact correct one is in my view entitled to look to see the purpose for which the material is disclosed, or the point in the action to which it is said to go", but on the facts of this case it does not make any difference. The purpose for which the material was disclosed is obvious. It is an attempt, whether successful or not, to rebut the suggestion of recent fabrication by establishing that Mr Holyoake said something similar to his lawyers as long ago as March and April 2012. That purpose does not seem to me to alter the transaction in question, which remains what Mr Holyoake said in these particular emails. It is nothing to the point either that the account he then gave may not in fact be consistent with what he now says -- that is a point which Mr Lord may seek to rely on in due course, but which does not affect the purpose for which it was adduced -- nor is it to the point that it may not be a total answer to the suggestion that Mr Holyoake has made up the allegations as he could have made them up in 2012. That again does not affect the purpose for which the evidence was adduced, which is to rebut at any rate the suggestion that he has made them up recently.

On Mann J’s first question, therefore, I hold that the transaction in question is the communication made in the emails of 29 March and 15 and 16 April, including email number 5 on 16 April, which is part of the same communication and hence part of the same transaction. It is not the threats or all communications made by Mr Holyoake to his lawyers about the threats.

So when Mann J says at [18] "The court will determine objectively what the real transaction is so that the scope of waiver can be determined. If only part of the material involved in that transaction has been disclosed, then further disclosure will be ordered", and I ask whether Mr Lord's class 2. is part of the material included in that transaction, the answer to my mind is clearly "no".

The next question is that of wider disclosure as referred to by Mann J in [19]. Mr Lord said that fairness required disclosure of other communications to his lawyers about the threats up to April 2012 so that the court had the full picture. In this respect he employed a number of beguiling metaphors: that it is all part of the same cherry tree or at least the same orchard; Mr Holyoake is letting the defendants look in the cupboard and see what is there; he has invited the court to look behind the curtain. These are appeals to a general principle of fairness and one can certainly see the attraction of the way in which he puts it.

However, I think it is necessary to adopt a structured approach. There are, I think, two principles in play: one is that a party can pick and choose what material to waive privilege in: see the passage of Cotton LJ in Lyell v Kennedy which I have already cited. The other is that if a party does choose to waive privilege, fairness may require further disclosure. These principles are obviously in tension and different minds may have very different views as to where the balance is to be struck. I think in those circumstances appeals to what is fair are apt to be an elusive test, as what strikes one judge as fair in one case may not strike another judge as fair in another case.

That sort of discrepancy between judges may be unavoidable in circumstances where a discretion is conferred on the court, as it is recognised that different judges may come to different conclusions in the exercise of a discretion, as there is usually a generous ambit within which most discretions can be exercised.

But as Mr Lord himself said, the determination of this issue, that is "What is the scope of collateral waiver?", is not a discretionary exercise, but in principle an objectively determinable matter. I accept that. It may well be true, as I suggested to Mr Lord in argument, that the court always retains a discretion whether to order disclosure and inspection under the powers in the CPR, but the answer to that point is given by Hobhouse J in Tanter at 116 E to H, namely that once it has been decided that fairness requires further disclosure, there is no separate issue arising under the rules as the criteria for the exercise of any discretion are the same.

In those circumstances, I consider that it is safer and more satisfactory not to rely on what I might consider fair, but on what has been done in previous cases so as to produce as great a degree of consistency, and hence predictability, of decisions in this area. In this respect, it is striking, as Mr Stewart pointed out, that Mr Lord's submissions reproduce almost exactly the submissions of Mr Mark Saville QC, as he then was, in Tanter. Those submissions can be found in the letter from his clients' solicitors quoted by Hobhouse J at 105H as follows:

“Our clients require specific discovery of all other documents previously privileged that are or have been in the possession, custody or care of your clients and in relation to which privilege has thereby been waived. We are now entitled to specific discovery of all documents that relate to or bear upon a number of topics."

Hobhouse J reverted to it at 107G where, after referring to the Doland case -- that is George Doland Limited v Blackburn, Robson Coates & Co [1972] 1 WLR 1338, a decision of Geoffrey Lane J -- he said:

Of that submission of Mr Saville's he said:

Interestingly, one of the examples he gives is as follows:

That is, of course, precisely the position here and incidentally tends to support my understanding that there was nothing very surprising or innovative in the course adopted by Mr Stewart in waiving privilege in the course of re-examination in an attempt to rebut a suggestion of fabrication.

It is quite plain from his judgment that Hobhouse J did not accept Mr Saville's submission. At 114B, as I have already referred to, he described the application as "misconceived and premature" and his submissions as "incorrect". At 114C, again, as already referred to, he held that if and when put in evidence, the documents would not open up the confidentiality of later privileged communications.

At 115B he said this:

It follows from that that Hobhouse J plainly did not regard fairness as requiring disclosure of later privileged communications on the same topic. I am, of course, not strictly bound by his decision, but I should follow it unless persuaded he was wrong. I am not so persuaded and, as I have already said, consistency in matters of practice such as this is an important principle because litigants ought to be able to predict, with a fair degree of confidence, what, if they choose to waive privilege in one document, the consequences are likely to be in terms of collateral waiver of other documents.

It seems to me, therefore, that I ought to and I will follow Hobhouse J and hold that fairness does not require the disclosure of later privileged communications between Mr Holyoake and his lawyers concerning the threats made up to April 2012 as sought in Mr Lord's class 2.

Mr Lord pointed to the fact that in Fulham Mann J did require disclosure of later advice which was an alteration, amplification or extension of advice already disclosed; see at [23]. It is apparent, however, that he included that on the basis that it could fairly be treated as being part of the same advice, see at [22], also referring to In Re Konigsberg (a bankrupt) [1989] 1 WLR 1257, where a later letter was “closely connected” with the disclosed letter. It was no doubt on that basis that email number 5 on 16 April 2012 was disclosed, being in reality all part of one extended communication.

If Mr Holyoake had sent an email on 17 April saying, "I have just looked at what I wrote yesterday and its not quite right, here is a correction", that would no doubt also fall within this principle, as indeed Mr Stewart accepted. But I do not think Mann J’s principle is sufficient to justify requiring disclosure of all later communications on the same topic, that of threats, as Mr Lord sought. In one sense, no doubt, any later statement by Mr Holyoake to his lawyers on the same topic, unless a mere word-for-word repetition, could be characterised as either an amplification or extension or alternatively as a qualification or alteration of what he had already said. But I do not think this is what Mann J had in mind and to read it that way would completely undermine the principles laid down by Hobhouse J that waiver of privilege in one communication waives privilege in that transaction but not in the underlying topics, and does not entail the waiver of later privileged communications on the same topic.

For these reasons I reject the submissions of Mr Lord in relation to class 2. It follows that I also reject his submissions in relation to classes 3. and 4., which are a fortiori, and save for the limited extent which I have indicated in relation to class 1., I dismiss the application.