Tactical waiver of privilege may result in collateral waiver of privilege in other connected documents

In Gorbachev v Guriev [2024] EWHC 622 (Comm), the High Court held that a voluntary waiver of privilege may inadvertently result in a wider waiver of other privileged material. This serves as a warning to parties looking to tactically disclose privileged documents, whilst not disclosing others.

Background

During a dispute between the two parties, the Claimant, Alexander Gorbachev, chose to waive privilege over the first of two chronologies prepared by his counsel. The second chronology was an amended version of the first and had been provided to the Claimant six days after the first. The purpose of the disclosure was to demonstrate consistency between the Claimant’s instructions in 2012/2013 and his case as currently pleaded. The Defendant, Andrey Grigoryevich Guriev, sought a declaration that the Claimant had waived privilege in relation to all instructions from the Claimant to his counsel that were relevant to his case against the Defendant.

The decision

The High Court followed the established principle that waiver of privilege over a particular document may subsequently lead to the collateral waiver of privilege in other connected documents, as the disclosure of certain privileged material may give an incomplete and unfair picture of the issue in question.

The approach taken by the court in such cases is:

1. to identify the issue to which the disclosed material is relevant. This is the specific transaction in respect of which material is being disclosed; and
2. to disclose all material relevant to that transaction.

Additionally, if it is clear that the disclosed material forms part of a larger picture, further disclosure may be required in the interest of fairness. However, this is highly dependent upon the facts of each case.

Applying this approach to the case, Pelling J established:

1. the issue in question was whether the Claimant’s account of the facts pleaded in his claim aligned with instructions provided by the Claimant at the outset of his case; and
2. the purpose of the disclosure was to demonstrate consistency between the Claimant’s case as of now and instructions given between late 2012 and early 2013 when the two chronologies were prepared.

In his judgment, Pelling J stated that disclosure of the earlier first draft of the chronology and not the later second version risked creating a misleading impression of the issue in question. The argument of consistency would be undermined if the revised second chronology had been materially altered on instructions from the Claimant.

Pelling J held that to allow a submission based on consistency without any examination of the second chronology risked unfairness to the Defendant. Therefore, all material relevant to the issue in question was required to be disclosed, including the second chronology and any documents which evidenced the Claimant’s instructions in relation to the second chronology.

Pelling J sympathised with the Claimant’s position that it would be disproportionate to disclose all material since the preparation of the second chronology in February 2013. However, he held that if any documents containing or evidencing the Claimant’s instructions to his counsel came into existence after the preparation of the second chronology, these would have to be disclosed. If the disclosed documents contained privileged information not relevant to the issue in question, this material should be redacted.

Key takeaways

This decision highlights the risks of a party’s attempt to disclose specific privileged information whilst withholding other relevant material. The judgment makes clear that, in order to avoid unfairness, parties will not be able to tactically reveal privileged material without providing everything relevant to the issue at hand. It serves as an effective warning to parties looking to make use of a tactical waiver that the court will not accept half of the picture.

With thanks to Harry Dooner for his assistance in preparing this post.