Matthews: Legitimate concern about breach of TCC Guide
The High Court has refused a leading law firm an injunction to stop an opposing party making a use of a document it disclosed by mistake that cast doubt on an expert’s independence.
His Honour Judge Matthews in Bristol, sitting as a High Court judge, ruled that Womble Bond Dickinson (WBD) had waived privilege in the letter from one of its experts, Gerry Cutting.
Pickett v Balkind is a tree root subsidence claim for £356,000. WBD acts for the claimant and applied in May to adjourn the trial set for July because Mr Cutting could not attend for medical reasons.
In his witness statement, Womble legal director Christian Charlesworth exhibited an unredacted letter from Mr Cutting which, before detailing his medical issue, said: “I have been through [counsel’s] comments on the joint statement and have made just a couple of minor changes where I was unable to be as definite as his wording.”
In response, the defendant’s solicitor, Charles Brine of DAC Beachcroft, said they were concerned that counsel was involved in drafting the experts’ joint statement in breach of the TCC Guide.
WBD then asserted that the material was privileged. In applying for an injunction to restrain use of the letter, Mr Charlesworth said he had made “an inadvertent and obvious error” and not intended to waive privilege.
He said Mr Cutting’s comments related to “an aide memoire my firm had sent him in connection with the preparation of the expert’s joint statement”.
Mr Brine told the court that he did not consider that the letter had been sent inadvertently and the judge rejected the claimant’s argument that this was “incredible”.
He said: “The solicitor might have thought, for example, that it did not matter whether privilege was waived or not, or that the letter would have more weight unredacted, and that privilege ought to be waived…
“Moreover, in my judgment, the error was not ‘obvious’ such that a reasonable solicitor would have realised that there had been an error.
“In addition, Mr Brine then relied on the unredacted letter in order to pursue a concern, which I consider to have been entirely legitimate and proper, that a breach of the TCC Guide had taken place.”
Mr Charlesworth added “fuel to the fire” by referring to the aide memoire, he continued.
HHJ Matthews said he was “doubtful” that the first four paragraphs of Mr Cutting’s letter, which referenced the statement, could qualify as a privileged communication. Even if they did, he went on, privilege had been waived.
He said: “It would promote a sense of injustice in the defendant to leave that concern [about breach of the TCC Guide] hanging, unanswered.
“Even without that reliance by the defendant on the letter to raise his concerns, I do not consider that it would be right to grant an injunction restraining the use of the information in the letter… But that concern and reliance, and the risk of the sense of injustice, go to strengthen my conclusion.”
The defendant applied for production of the aide memoire, as well as permission to cross-examine the claimant’s experts at trial and deploy the letter in evidence.
The judge refused the first – not having seen it, he could not be sure whether the aide memoire was part of the expert’s instructions and so not privileged – but acceded to the other two.
HHJ Matthews said that, given “the unresolved concerns which the defendant expressed about the independence of the expert, it seems to me that there is a proper basis for the cross-examination of Mr Cutting on these matters” – subject to “any contrary direction by the trial judge”.
But there was no basis for reaching the same conclusion in relation to the claimant’s other expert.
“The fact that there is a proper basis for cross-examining one expert on his independence does not by itself raise any presumption of such a basis in relation to another expert, and there is no material before me in relation to Mr Pryce to raise any suggestion of compromised independence.”
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