In Alexander Gorbachev v Andrey Grigoryevich Guriev [2024] EWHC 622,[1] the Commercial Court held that the claimant’s voluntary disclosure of a privileged chronology originally produced by its barrister gave rise to a collateral waiver of: (i) an updated draft of that chronology; as well as (ii) all documents containing, recording or otherwise evidencing the claimant’s instructions in respect of the chronology.
Background
The underlying proceedings concern a long-running £1 billion dispute between Mr Gorbachev (the Claimant) and Mr Guriev (the Defendant) concerning their interests in a Russia-based fertiliser company, PJSC PhosAgro.
Back in October 2012, the Claimant instructed a barrister (Mr Fitzgerald), who prepared a chronology of events (the Original Chronology) based on information given to him by the Claimant at meetings and over the telephone. Later, on 21 January 2013, the Claimant instructed solicitors, around which time Mr Fitzgerald provided the solicitors with the Original Chronology, which he then subsequently revised on 5 February 2013 (the Revised Chronology). It appears not to have been disputed in the present application that both the Original Chronology and the Revised Chronology attracted legal professional privilege.
Some almost 10 years later, the Claimant voluntarily disclosed the Original Chronology to the Defendant in order to demonstrate that his pleaded case “materially aligned” with instructions he had given back in 2012, for the purposes of rebutting the Defendant’s allegation that the Claimant’s account of events had changed since the outset of his case. In disclosing the document, the Claimant elected to waive the privilege subsisting therein. The Claimant’s solicitors subsequently disclosed the existence of the Revised Chronology (but not the document itself).
The Defendant applied for declarations that the Claimant, in waiving privilege over the Original Chronology, had collaterally waived privilege in all “factual instructions provided by the claimant to Mr Fitzgerald in relation to [the claimant’s] case against the defendant”, which would necessarily include the Revised Chronology, as well as other documents (the Application).
Discussion
In determining the application, HHJ Pelling summarised the principles governing collateral waiver of privilege, being that whilst any party has the right to waive privilege, that waiver may give an “incomplete and unfair picture” of the issue (or transaction) against which voluntary disclosure was given, such that the whole of the material relevant to that issue must also be disclosed. It is well accepted in the relevant case law that the application of the collateral waiver principle will be very fact sensitive.
HHJ Pelling identified the issue (or transaction) against which the Original Chronology was disclosed; this being, whether the Claimant’s account of relevant facts had changed since the outset of the case (the Factual Issue). As noted above, the purpose of the disclosure by the Claimant was to demonstrate consistency between his case when the Original Chronology was produced in late 2012 and his pleaded case now.
The Defendant contended that absent the disclosure sought by the Application, there was an obvious risk of a misleading picture emerging in relation to the Factual Issue.
The Claimant maintained that the Revised Chronology: (i) related to a “separate process” to Mr Fitzgerald’s instructions; and (ii) was not relied on by the Claimant in respect of determining the Factual Issue. In both regards, HHJ Pelling determined that the Claimant was “entirely mistaken”: as to (i) the chronology was clearly, at the time, a developing draft created by Mr Fitzgerald that reflected his instructions; and (ii) that the Claimant was not relying on the Revised Chronology was not the relevant consideration, but rather whether the content of the Original Chronology was part of a bigger picture that could not be understood completely without further relevant disclosure.
The Court recognised that the purpose of disclosing the Original Chronology was to prove consistency in the pleaded facts underlying the Claimant’s case, and therefore to not disclose further drafts risked the creation of a misleading picture in respect of the Factual Issue. If the Revised Chronology demonstrated material alterations, this would significantly undermine the Original Chronology as being probative of consistency in the Claimant’s case.
Decision
Accordingly, the Court gave directions (as opposed to declarations) that the Claimant must produce the Revised Chronology, together with documents containing, recording or otherwise evidencing the instructions given to Mr Fitzgerald in respect of the production of both chronologies. As to whether there should be a time limit on the period subject of the disclosure, the Court held that, in circumstances where the collateral waiver test had been satisfied, the law required “the whole of the material” relevant to the Factual Issue to be disclosed, and therefore an inevitably arbitrary deadline would not be appropriate, unless the parties could agree one.
Finally, the Court agreed that any privileged material that was not relevant to the Factual Issue (and therefore had not been subject to the collateral waiver) could and should be redacted.
Comment
The judgment provides a brief but useful refresher on the law concerning collateral waiver, which is now relatively well-established (as the Court noted). It is an important reminder of the risks associated with deploying privileged material in support of a case. The decision to do so should not be taken lightly and parties must be conscious of a likely challenge from the other side that there has been a wider waiver of privileged material relevant to the issue against which voluntary disclosure was given.
Of course, anxious scrutiny must be applied when considering such a waiver, including as to whether appropriate redactions should be made in order to contain the inevitable collateral waiver arguments, but always with an eye on not “cherry-picking” because this will not be permitted.
[1] Please access the judgment here.
