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Privilege and the cherry-picking rule: when it does (and doesn’t) apply

If you choose to waive privilege over a selection of documents, it is well known that the waiver may extend further than you intended. This is the principle of “collateral waiver” or, more colloquially (and descriptively), the cherry-picking rule.

It is only fair that a party cannot rely on favourable aspects of their privileged material whilst keeping less helpful aspects under wraps.

Not every waiver of privilege, however, results in wider disclosure. For the cherry-picking principle to be engaged, there has to be deliberate deployment, not merely disclosure of privileged material. Even where this is the case, waiver applies only in respect of further privileged material that forms part of the same “transaction” or “issue”, where fairness requires disclosure so that the court has the full picture.

Some recent decisions are interesting illustrations of these principles in practice.

Inadvertent disclosure

In Belhaj v Director of Public Prosecutions, the defendant had inadvertently left unredacted passages of privileged material in documents it produced. Belhaj contended that not only had privilege been lost over that material, but that the cherry-picking rule required a wider waiver over related privileged material.

The court held that privilege had not been lost as it should have been obvious to a lawyer inspecting the documents that the disclosure had been by mistake. However, it went on to note that, even if privilege in the passages had been lost, there could be no question of collateral waiver over a wider scope of material because the passages had not been deliberately deployed by the defendant:

“‘Cherry picking’ is concerned with knowing, deliberate, deployment resulting in partial disclosure. Absent such an intention, the issue of cherry picking does not arise.”

Reliance on absence of legal advice

In contrast, in ‘D’ Cash & Carry Limited v HMRC, the court held that privileged material had been deployed, even though, in this case, it was the absence of advice on a particular issue that was relied on. The appellant company applied to lodge an appeal out of time against an HMRC decision. The notice of appeal stated that its previous solicitors were not acting on its behalf at the time it was notified of HMRC’s decision and it did not appreciate the deadline or its implication. It relied on a witness statement to that effect from one of its directors. The company later applied to amend its notice of appeal and served a further witness statement from a director to “clarify” that the company had contacted the solicitors following receipt of HMRC’s decision, and was not advised in relation to appealing the decision or any time frames for doing so.

It was held that privilege had been waived. The company had described the nature of their discussion with the solicitors and the absence of advice. Their whole case for an out of time appeal was predicated on that lack of advice, so as to excuse their failure to launch an appeal within the statutory time limits. The true reasons for the delay had to be established. That could be achieved only through information and documentation held by the solicitors.

“Transaction” or “issue”: not all legal advice received

Going back a little further in time, in Holyoake v Candy, the High Court concluded that, where a claimant waived privilege in certain emails to rebut a suggestion of recent fabrication, only a small number of other privileged documents had to be disclosed.

The claimant alleged that the defendants had made threats to him and his family. In the course of cross-examination, it was suggested that he had made this up. To rebut the suggestion of recent fabrication, the claimant’s counsel put to him a series of four emails written to his lawyers at the time of the alleged threats.

It was not disputed that these emails were privileged and that they had been deployed. They were therefore disclosed along with another email in the same series. However, the defendant sought further disclosure of all other documents referred to in the previously privileged documents and, in broad summary, of all other privileged communications on the topic of threats.

The High Court ordered disclosure of the first category but refused to order any wider disclosure. The “transaction” was the series of emails, not all communications on this topic, and fairness did not require further disclosure.

Lessons for litigators

These cases illustrate that if you deploy privileged material (relying either on advice given on an issue or the absence of such advice), then the cherry-picking rule opens up the possibility of further disclosure being ordered. However, that will not mean, in most circumstances, that all privileged material will be available to the other party.

As ever though, a decision to rely on privileged material should never be taken lightly, given the precise impact will often be difficult to predict in practice.

Herbert Smith Freehills Anna Pertoldi

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