Background

This long-running dispute between the parties concerns their respective interests in a fertiliser plant in Russia.  The claimant first instructed a barrister in late 2012.  The barrister prepared a chronology of facts relating to the case on the instructions of the claimant. On 30 January 2013, the barrister provided the chronology to the claimant’s solicitors.  Following a meeting between the claimant, his solicitors and barrister on 1 February 2013, the chronology was updated by the barrister and recirculated to the claimant and solicitors on 5 February 2013.  

It would appear that at some later point in time the claimant initiated proceedings against the defendant in the English courts.  On 9 October 2023, the claimant waived privilege in the original version of the chronology by providing it to the defendant.  The purpose of the wavier was to rebut the defendant’s contention that the claimant’s account of events had changed since the start of the case.  By disclosing the chronology, the claimant wanted to prove that the key facts of his pleaded case “materially aligned” with the instructions he had provided to his barrister at the outset. The claimant disclosed the existence of the updated chronology to the defendant, but without providing a copy.

The defendant argued that waiver of privilege in the original version of the chronology resulted in collateral waiver in all “…factual instructions provided by the claimant to [his barrister] in relation to his case against the defendant…” and applied for an order seeking a declaration in those terms.  His Honour Judge Pelling KC considered the dispute to be largely a matter of case management and decided to resolve the dispute by directions rather than by declaration.

He started by laying out the principles that apply to an application of this sort:

• It was first necessary to identify the issue to which the originally disclosed material is relevant – described as the “transaction in respect of which disclosure is made” (R (on the application of Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35).

• Once the issue – or transaction - has been identified, the whole of the material relevant to it must be disclosed. 

• Finally, if it is apparent, from what is disclosed as a result of carrying out this exercise, that what is disclosed is part of a bigger picture, then fairness may require further disclosure to be given. That said, as Mann J noted in Fulham Leisure Holdings Ltd v Nicholson Graham & Jones [2006] 2 All ER 599 ,”…(t)he application of this principle will be very fact sensitive, and will therefore vary very much from case to case...”.

Applying the above principles, the judge identified the issue in this case as being whether the version of events pleaded in the claim was consistent with the instructions provided by the claimant at the outset of his case, specifically in relation to the preparation of the chronology.

In terms of further material relevant to this issue, the defendant contended that, at the very least, the updated chronology was disclosable since otherwise there was an obvious risk of a misleading picture being given in relation to the issue.  The claimant counter-argued that the updated chronology was not relevant to the issue as it had not been prepared for the purpose of giving initial instructions to his barrister – but, rather, that the updating of the document was a separate process and because the claimant was not relying on the later version of the chronology.  

The judge disagreed with the claimant and in an instructive paragraph in his judgment (at [13]) said:

“In my judgment, the claimant’s approach is entirely mistaken once it is accepted that the purpose of the original disclosure of the chronology was to demonstrate consistency with the claimant’s currently pleaded case.  It is close to obvious, in my judgment, that if instructions were given shortly after the chronology was created for the purpose of its material alteration, then the chronology cannot be considered as anything more than a developing draft. To disclose an earlier draft without disclosing the later version is, in my judgment, redolent with the risk that a misleading impression will be created as a result. To release one without the other plainly deprives the defendant of the opportunity of satisfying himself that what the claimant has chosen to release represents the whole of the material relevant to the issue to which the disclosure was relevant. To say, as does the claimant, that the updated chronology does not relate to the process of the claimant giving instructions to [his barrister] for the purpose of preparing the chronology entirely misses the point because the transaction, i.e. the issue in question, is not whether the chronology reflected instructions given down to the date it was prepared, but whether the chronology is consistent with the claimant's currently pleaded case. If the chronology was materially altered only a few days later on instructions from the claimant, the availability of an argument based on consistency may be significantly undermined. The defendant has no means of testing that point without access to the revised document and there is an obvious risk of unfairness therefore if a submission based on consistency is permitted without an examination of the amended version created only a few days later”.

The judge ordered the claimant to disclose the updated chronology plus all documents that contained, recorded or otherwise evidenced his instructions concerning the contents of the chronology and its updated iteration. That included any documents that corrected the updated variant, if any. (Although it was not suggested that the updated chronology had been amended again thereafter). It also included any notes which might evidence instructions from the claimant to his barrister given in the period prior to the production of the chronology, and also documents relevant to the instructions given at the meeting between the claimant, his barrister and solicitors in February 2013.  Redactions for privileged content not relevant to the issue at hand were permitted.  The judge also agreed to hear submissions from counsel as to an end date to be imposed on the process “for purely practical reasons”, if the parties were able to agree on one.

Commentary

The decision is a stark example of the risk of intentionally waiving privilege over specific, limited material.  Parties should think twice before doing this – and should weigh up whether the purpose for, and any benefit to be gained by, intentional waiver is worth the possible risk of unintentional collateral waiver over other connected material.  Parties should explore whether there is another way they can achieve what they intend to achieve by the waiver. Here, the purpose for which the chronology was disclosed was to rebut a contention by the defendant that the claimant’s case was not consistent.  Did this warrant waiving privilege in the chronology?  Was there another way this could have been achieved? Without knowing further detail about the case it is hard to say, but these are questions that should be asked. 

On a more practical level, the decision highlights that it is difficult to conceive of a situation where a particular version of a privileged document could be disclosed without triggering collateral waiver in (at the very least) all other versions of the document, as well as potentially also relevant connected material – in particular if they are created not long after the original version. All versions ultimately constitute different iterations of the same document and are part of, as the judge put it, a “developing draft”.   Hence, they are likely to fall within the transaction test, and fairness is likely to dictate they should be disclosed as, if not, the other party is likely to be left with only part of the bigger picture, which may be misleading.  As stated above, each case will turn on its own facts – so this should not be taken as an absolute rule – but it should certainly be borne in mind.

If you would like to discuss any of the issues raised in this article, please get in touch with one of the contacts listed, who would be happy to help.

Case: Gorbachev v Guriev [2024] EWHC 622 (Comm)

Authored by Daniela Vella and Alex Sciannaca.