Commercial Litigation: ACD (Landscape Architects) Limited v (1) Robert Overall (2) Cookham Construction Limited [2011]

Ian Carruthers of Liverpool Solicitors Carruthers Law writes as to a recent Commercial Litigation case as to waiver of privilege. ACD (Landscape Architects) Limited v (1) Robert Overall (2) Cookham Construction Limited [2011] EWHC 3362 (TCC)

The case involved an interesting point as to whether privilege in a draft expert report had been waived. The claim arose out of proceedings issued by the claimant a landscape architects business. The issue in this claim arose out of an application made by the claimant seeking to strike out those aspects of the defence and counterclaim which related to the breach of contract and negligence claim on the grounds that they had

  •  “no reasonable grounds for being brought.” It was said that the counterclaim “presents allegations of professional negligence unsupported by expert evidence and should be struck out …”

A witness statement from the defendant’s solicitor refered to being in a position to call on expert evidence and being in possession of a draft report from a Chartered Architect,

  • “which is a privileged document and I am not allowed to wave privilege.”

He then went on to make reference in his statement to what the judge felt were clearly excerpts from the report in particular

  • “A competent (experienced) LA would undertake an informal preliminary assessment of the site and formulate the view of the likelihood of the success of the proposal. They should not then have a completely different opinion following a formal assessment of said site as set out in ALVIA.”

The claimants made an application at the hearing for the expert report to be disclosed.. The Civil Procedure Rules (CPR) Part 31.14(1) states

  • “A party may inspect a document mentioned in … (b) A witness statement.” It is up to the other party to object and one of the grounds would be to raise privilege.

The judge found that from the various authorities:

  • Unless there is good reason, documents referred to in a witness statement to be used in interlocutory or final court hearings must be disclosed by the party submitting the statement;
  • One good reason is if the documents are privileged;
  • Privilege is waived when the otherwise privileged document is actually or effectively referred to in a witness statement or the contents are deployed for use in the proceedings or final trial;
  • A party which deploys part of a privileged document will then be required to disclose the whole of the document, the party is not allowed to cherry pick to rely on only that part;
  • The test as to whether a document or part of it has been deployed is whether the contents of that document are being relied upon rather than the effect or impact of that document;
  • Once referred to in a witness statement the court will presume that it is relevant because it has in fact been referred to in the statement and that therefore demonstrates its relevance.

The judge therefore found that documents with privilege had been raised and the defendant must therefore disclose the expert evidence.

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