New case on disclosure & privilege

In the recent case of Expandable Ltd. v. Rubin, the Court of Appeal has held that mere mention of a letter does not automatically waive legal professional privilege.

The judgment, given by Rix LJ, went to two points. First, had the letter been “mentioned” for the purposes of CPR 31.14; second, if it was so mentioned, did that amount to a waiver of privilege.

Their Lordships found that the letter was ‘mentioned’, noting that the test was not intended to be an onerous one, the word ‘mention’ being as general as could be (see paras 18ff of the judgment).

However, the Court was not satisfied that the mere mention of a document provided for the automatic and absolute waiver of its privilege; this would be a significant departure from previous jurisprudence with no good explanation. Privilege is a fundamental right that cannot be overridden by general words, and Rix LJ quotes Lord Justice Hoffman (in R v. Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115) on the point:

>”Fundamental rights cannot be overridden by general or ambiguous words…In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”