Court of Appeal

Published March 10, 2008

Expandable Ltd and Others v Rubin

Before Lord Justice Rix, Lord Justice Jacob and Lord Justice Forbes

Judgment February 11, 2008

The mention of a document in a witness statement did not constitute an automatic waiver of legal professional privilege so as entitle the other party to inspection of it.

The Court of Appeal so held in a reserved judgment, dismissing an appeal by Expandable Ltd and Prime Trust Corporation Ltd, from the decision of Mr Justice Patten ([2007] EWHC 2463 (Ch)), on appeal from Mr Registrar Simmonds’ decision of June 21, 2007, that they were not entitled to inspect a covering letter written by a solicitor to his client, David Anthony Rubin, as supervisor of the individual voluntary arrangement of Martin Christopher Clarke, to which the defendant had referred in his witness statement.

Mr Daniel Lightman for the claimants; Mr Herman Boeddinghaus for Mr Rubin.

LORD JUSTICE RIX said that he adopted the direct allusion test in Dubai Bank Ltd v Galadari (No 2)([1990] 1 WLR 731), which concerned the words “reference is made to” in Order 24, rule 10 of the old Rules of the Supreme Court. Any reference to a document had to be direct or specific. The expression “mentioned” in rule 31.14(1) of the new Civil Procedure Rules was as general as could be. The document did not have to be relied on, or referred to in any particular way or for any particular purpose, in order to be mentioned.

The expression “he wrote” was a direct allusion to the act of making the document itself. Accordingly, subject to the question of privilege, the covering letter was mentioned in the witness statement.

Under the former regime, mere reference to documents in the pleadings did not constitute an automatic waiver of any legal professional privilege: see Buttes Gas and Oil Co v Hammer (No 3) ([1981] 1 QB 223). The new rules had not effected any fundamental change.

Rule 31.19 was of general application, whether or not a previous rule within Part 31 referred, or cross-referred expressly to a right to object to inspection. Rule 31.19(4)(b) appeared to be well designed for the situation where disclosure was made by mentioning a document under rule 31.14.

Accordingly, privilege for the covering letter was not automatically and absolutely lost.

Lord Justice Jacob and Lord Justice Forbes agreed.

Solicitors: Goldkorn Mathias Gentle; Edwin Coe.

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