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12 March 2019
In a recent case before the High Court,(1) a novel issue arose as to whether a party's deployment of privileged documents for the purposes of the trial of a preliminary issue concerning limitation would result in privilege in the documents being waived (lost) for the purposes of the main trial, in the event that the court held that the claim was not time barred. Applying English common law principles, the court held that the doctrine of partial waiver of privilege (which was well recognised by local common law) did not apply to the trial of a preliminary issue, so that privilege over documents disclosed for the purposes of the preliminary issue trial was lost for the subsequent main trial. The concept of a partial waiver of privilege is fundamentally important; but, as this case illustrates, it has limitations. The legal principles involved suggest that courts are reluctant to 'undo what has been done' or to allow parties to selectively deploy privileged documents during the course of the same court proceedings.
During the second day of the trial of a preliminary issue (in a personal injuries claim), an issue arose as to whether the court should (among other things) exercise its discretion to extend the time within which the plaintiff had to commence her claim against the defendant.(2)
With the permission of the court, the plaintiff took the opportunity to adduce evidence (in the form of an affidavit sworn by her solicitor) to explain, among other things, the passage of time (approximately three years) between a refusal of legal aid and the subsequent grant of legal aid. The plaintiff's solicitor's affidavit referred to and exhibited certain documents and, insofar as they were privileged, made it clear that privilege was not being waived. It appears that some of the documents may have contained information that was not helpful to the merits of the plaintiff's case at trial, but they may have gone some way to assist her argument on the issue of limitation.
The defendant argued that the plaintiff could not selectively disclose relevant privileged documents for the purposes of the trial of the preliminary issue but be allowed to assert the privilege in the same documents at the main trial, in the event that the court exercised its discretion to extend the limitation period.
Following further written submissions on whether the deployment of the documents amounted to a waiver of the privilege, the court requested the plaintiff to file a list of documents clarifying her claim to privilege in the documents in question. The purpose of the list of documents was to assist the court in determining the issue of whether the plaintiff had waived her claim to privilege in the documents referred to in her solicitor's affidavit. The plaintiff's list of documents and supporting correspondence were equally forthright in asserting that privilege had been waived only for the purpose of the trial of the preliminary issue but not generally – in effect, a partial waiver.
Whether the plaintiff could claim a partial waiver of privilege in these circumstances became a discrete issue of law for the court's determination. There appears to have been no prior legal authority on this point. However, it appears to have been accepted that the common law of Hong Kong recognised the concept of partial waiver generally and that, in particular, a party was generally free to waive privilege for one set of proceedings (one purpose) but retain it for another distinct set of proceedings (another purpose).(3) In this case, the issue of whether a claim to partial waiver was legitimate arose in the context of two stages of the same proceedings – the trial of a preliminary issue and the main trial.
The court held as a matter of law that "the doctrine of partial waiver of privilege cannot apply to the trial of a preliminary issue so as to preserve, at the subsequent main trial, the privilege over the documents that were disclosed at the trial of the preliminary issue".(4)
In an interesting review of the common law principles supporting a claim to partial waiver, the court noted that they generally arose in the context of different investigations or different proceedings. However, in civil proceedings, the court considered that the weight of authority that supported a claim to partial waiver did not extend to preserve privilege for the purposes of trial where the privileged documents had been deployed for use during an interlocutory hearing in the same case. Various reasons are put forward for this and these can be summed up by certain soundbites – for example, such as the court cannot 'turn back the clock' and a party should not be allowed to 'cherry pick' as regards a claim to privilege in the same case.
Another justification for the court's conclusion is one of fairness between the parties. It appears that some of the documents, in respect of which the claim to partial waiver of privilege was made, were helpful to the plaintiff's argument in seeking to override the limitation period in her favour but, to some extent, they would also assist the defendant on the issue of liability at trial (in the event that the case went to trial).
Therefore, on the discrete point of law, the court found for the defendant and against the plaintiff. However, matters did not end there. Concerned that the plaintiff may not have fully appreciated the implications of her solicitor's affidavit seeking to deploy privileged material at the trial of the preliminary issue, the court gave the plaintiff permission to withdraw the affidavit.
The case is a useful reminder of the potential danger of trying to deploy privileged material for the purposes of only part of court proceedings (or, perhaps, seeking to 'have your cake and eat it'). While a claim to partial waiver is well recognised as part of the common law of Hong Kong (and nothing in the case detracts from this), it is a matter that requires careful deliberation and legal advice.(5) In a commercial case, between parties with separate legal representation, it is doubtful whether a court would afford a party the opportunity to withdraw their affidavit deploying privileged material in similar circumstances.
The specific point decided by the court, regarding the inability to preserve privilege in the circumstances argued by the plaintiff, raises some interesting issues of competing policies – for example, the protection of a party's claim to privilege and the fairness to the other party at trial. A claim to privilege, once made good, is not (as a matter of principle) subject to a competing policy, but that is probably a point for a higher court in another case.
For further information on this topic please contact David Smyth or Warren Ganesh at RPC by telephone (+852 2216 7000) or email (email@example.com or firstname.lastname@example.org). The RPC website can be accessed at www.rpc.co.uk.
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