Waiver of privilege in interlocutory proceedings

18/05/11

On Friday 06 May 2011 Gloster J held that the Claimant, Boris Berezovsky, had waived privilege by referring to the contents of witness interviews conducted by his solicitors with his former business associate, Mr Patarkatsishvili, prior to Mr Patarkatsishvili's death.

Applying the decision of the Court of Appeal in Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd [2003] EWCA Civ 901, Gloster J found that the principle of collateral waiver was engaged in circumstances where the Claimant had deliberately chosen, in resisting the summary judgment application brought by the Defendant, Mr Abramovich, to refer extensively to the contents of the interviews that had been conducted with Mr Patarkatsishvili.

The Claimant had argued that legal professional privilege was a fundamental human right, which could not be overridden by the Court simply having regard to competing interests of public policy. Furthermore, exceptions to it (such as the doctrine of collateral waiver) should be narrowly construed. Mr Abramovich had had an opportunity, in the course of the summary judgment application, to apply for full disclosure of the interviews with Mr Patarkatsishvili - so as to ensure that the Claimant was not guilty of "cherry-picking" for the purposes of that application. However, Mr Abramovich had not availed himself of that opportunity, and the summary judgment application was now spent. The Claimant had not yet decided whether or not to deploy the content of the interviews with Mr Patarkatsishvili at trial: and in those circumstances, in the event that the Claimant ultimately decided not to deploy those materials at trial, the doctrine of collateral waiver would not be engaged. Dunlop Slazenger was distinguishable because in that case it was clear that the privileged material was going to be deployed at trial.

The Court rejected that argument. Gloster J held that it would have been "cherry-picking of the worst kind" to permit the Claimant, on the pretext of saying that he had not made up his mind whether to refer to such evidence at trial, to withhold disclosure of the underlying material relating the interviews once these had been deployed for a "merits purpose" in the context of an interlocutory application.

On this basis Mr Abramovich's application for disclosure of all documents recording or reflecting the content of any interviews between Mr Patarkatsishvili and the Claimant's former solicitors was granted.

The judgment is here.