Waiving privilege and ‘cherry picking’

Two recent judicial review judgments in related cases have offered new insight into the rules of professional privilege. The court considered two key points. First, whether expressly limiting a waiver of privilege could be used to prevent use of the information by the other side. Second, whether the doctrine of ‘cherry picking’ applies to the inadvertent disclosure of privileged documents. 

The background is a challenge to the decision of the director of public prosecutions (DPP) not to prosecute anyone for misconduct in public office for alleged involvement in the unlawful rendition of the claimants in the proceedings (Abdel Hakim Belhaj and others) to Libya. Owing to the sensitivity of the information involved, the proceedings were closed and special advocates were used.

In what is thought to be the first English consideration of the issue, the first judgment (Belhaj and another v Director of Public Prosecutions and others [2018] EWHC 513 (Admin)) looked at the effectiveness of a limited waiver of privilege. Privileged information had been shared by the Foreign & Commonwealth Office (FCO) with the police, Crown Prosecution Service and the DPP for the purpose of assisting with the investigation into misconduct in public office. The information was given subject to a limited waiver, specifying the purpose of sharing the information and that the FCO did ‘not consider [itself] to have waived legal privilege for any other purpose, including any future prosecution or civil claim’.

The claimants argued that the limited waiver the FCO was seeking to enforce was ineffective as a matter of policy. Relying on the Scottish case of Scottish Lion Insurance Co Ltd v Goodrich Corp [2011] CSIH 18, it was argued that the decision-making process and internal review were individual parts of a composite ‘whole’, along with the judicial review challenge itself. The privileged legal advice was likely to have influenced the DPP’s decision not to prosecute and consequently there was a nexus between the information and the decision in question. Sight of the documents, they said, was necessary for the claimants to mount an effective challenge and for the court to properly review the decision.   

The court rejected these arguments, distinguishing the facts from Scottish Lion. It was held that the existence and extent of a waiver was to be judged objectively. There was no inherent connection between the decision-making process and the generic remedy of judicial review for executive decision-making. If judicial review and the decision to prosecute were found to have a sufficiently close connection so as to require an extension of the waiver it would have profound ramifications for investigations and this would be against the public interest. It would mean that in almost any case in which one government department assists another by waiving privilege, that waiver may be inferred to extend to any subsequent judicial reviews.  

The second judgment (Belhaj and another v Director of Public Prosecutions and others [2018] EWHC 514 (Admin)) considered whether the government was able to reassert privilege over information that had inadvertently been disclosed. In reaching its decision, the court looked at the provisions of CPR 31.20 and the relevant principles from Al Fayed v Commissioner of Police for the Metropolis [2002] EWCA Civ 780. The principles of the Al Fayed judgment include the following:  

• In circumstances where a party has given inspection of documents, including privileged documents which he has allowed the other party to inspect by mistake, it will in general be too late for him to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief.
• However, the court has jurisdiction to intervene to prevent, by injunction, the use of documents made available for inspection by obvious mistake where justice requires.  
• A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and:

     a) the solicitor appreciates that a mistake has been made before making some use of the documents; or

     b) it would be obvious to a reasonable solicitor in his position that a mistake has been made; and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief.  

Most importantly, the court had to decide whether it would have been obvious to the receiving solicitor that the disclosure was a mistake. It was held that a reasonable advocate in all the circumstances of the case, considering the sensitivity and specialised nature of the closed process and the law relating to inadvertent disclosure, would know or believe that the information had been provided inadvertently. Furthermore, it would have been counterintuitive for the secretary of state to intentionally disclose some but not all of his legal advice, and there was no indication that this was done for any kind of tactical advantage. The legal concept of ‘cherry-picking’ information, the court clarified, is concerned with the knowing and deliberate disclosure of limited information for forensic advantage. As it was established that the disclosure in this context was inadvertent, ‘cherry picking’ clearly did not apply and the government was allowed to reassert privilege over the documents, preventing the claimant from using the information in proceedings.

These decisions give a strong indication of the approach courts will take to particular issues of legal privilege.

The first decision suggests that in future, courts will be reluctant to extend a waiver of privilege where it is argued the extension should be inferred. Scottish Lions identified the outer limits of an inferred waiver and the facts of Belhaj fell well outside that perimeter.

The second decision lends support to the principle that ‘cherry-picking’ information is only relevant to deliberately disclosed material; accidental disclosure cannot be said to have been disclosed for tactical advantage and therefore does not negate an assertion of privilege.  

Melanie Carter is partner and head of public & regulatory at Bates Wells Braithwaite. Claire Whittle is senior associate