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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Holyoake & Anor v Candy & Ors [2017] EWHC 387 (Ch) (27 February 2017) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2017/387.html Cite as: [2017] EWHC 387 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice, 7 Rolls Building Fetter Lane, London EC4A 1NL
		Monday, 27 February 2017

Monday, 27 February 2017

(10.00 am)

APPROVED JUDGMENT
1. MR JUSTICE NUGEE: I am currently hearing the trial of this action which started on 8 February 2017. This judgment concerns an application made on Day 13 (last Friday, 24 February) by Mr Lord QC on behalf of the defendants for further disclosure from the claimants on the grounds of collateral waiver, a principle which I had reason to describe recently in Glenn v Watson [2016] EWHC 3259 (Ch) at [15] as follows:

"Where there has been express waiver [viz of privileged material],

there may also be a collateral waiver, that is waiver of other privileged material that is part of the same 'transaction'."

2. The question has come about in this way: the first claimant, Mr Mark Holyoake, has in this action made a number of allegations against the defendants, including allegations of certain threats made to him by them.
3. He started giving evidence on Day 2 (Thursday 9 February) and was cross-examined by Mr Lord over a number of days. In the course of his cross-examination, Mr Lord suggested to him on more than one occasion that he had made up certain specific allegations. I need not refer to them all, but one example will suffice.
4. On Day 7 (Thursday 16 February) Mr Lord was asking Mr Holyoake about threats said to have been made to him in the period 6 to 10 February 2012, which were dealt with in his witness statement at paragraph 116, and said this:

"There is no record, is there, in any email of any calls of this sort between

6 February and 10 February 2012, for example? No reference in an email from you to one of your associates saying that you have had these threats made. That is right, isn't it? ... I'm suggesting to you that what you are saying at 116, you are making up those calls, aren't you?"

5. In re-examination, Mr Stewart QC for Mr Holyoake put to him a number of emails which he wrote to his then lawyers, Collyer Bristow LLP, and counsel then instructed, in 2012, one email on 29 March 2012 and a series of four emails numbered 1 to 4, two on the evening of 15 April 2012 and two on the morning of 16 April 2012, and asked him to confirm certain passages in those emails which referred to threats said to have been made to him by the defendants.
6. Mr Stewart did so in reliance on section 6(2)(b) of the Civil Evidence Act 1995, which expressly permits a previous statement of a witness to be adduced in civil proceedings "for the purpose of rebutting a suggestion that his evidence has been fabricated."
7. Mr Lord, for his part, does not accept that the account Mr Holyoake gave in the emails is consistent with the account he gave in the witness box and has indicated a number of discrepancies which he will in due course rely on. But I am not, in this application, concerned with those matters, nor with any question of admissibility - Mr Lord does not challenge the admissibility of the emails - nor with a possible application that has been mooted, but not so far brought, for Mr Holyoake to be recalled for further cross-examination. I am simply concerned with whether Mr Stewart's reliance on the emails has had the effect of waiving privilege in other documents.
8. It is not disputed (i) that the emails were privileged; (ii) that, by putting the emails to Mr Holyoake, Mr Stewart has, on the claimants' behalf, waived privilege in them; (iii) that the emails are now in evidence; and (iv) that now that they are in evidence, they are in evidence for all purposes and either side can make use of them.
9. The emails do contain Mr Holyoake's instructions on other matters than those specifically put to Mr Holyoake in re-examination. Mr Stewart explained that, having decided to waive privilege in the emails so as to be able to rely on what Mr Holyoake said in them about the specific matters he wanted to ask him about, he took the view that he could not then seek to withhold any part of the emails in the light of the decision of the Court of Appeal in Great Atlantic Insurance Company v Home Insurance Company [1981] 1 WLR 529, to the effect that if you waive privilege as to part of a document, you waive privilege as to the whole of the document unless it is a clearly separable document dealing with completely different subject matters.
10. That seems to me to be right, although I do not think I need decide anything to that effect as Mr Stewart has clearly, in fact, now waived privilege on behalf of the claimants in the whole of the emails.
11. The claimants have also accepted that a further email numbered 5, sent on the morning of 16 April, formed part of the same series as the four sent on 15 and 16 April and should be disclosed as well. Again, I think that is plainly right, although again I do not formally have to decide that because privilege has now been waived in that email and a copy provided.
12. It is on the basis of the disclosure of the emails of 29 March and 15 and 16 April that Mr Lord based the application for further disclosure. He sought four classes of documents as follows:

1. All other documents referred to in the documents disclosed by the Claimants on Day 9 of the trial (20 February 2017) and subsequently on 21 February 2017 ("the Previously Privileged Documents") containing factual instructions from the Claimants (or representatives of either of them) to Collyer Bristow LLP and/or counsel.

2. All other documents containing factual instructions from the Claimants (or representatives of either of them) concerning the same events as the Previously Privileged Documents (being those events relevant to the Claimants' claims prior to 16 April 2012).

3. All other documents containing factual instructions from the Claimants (or representatives of either of them) to Collyer Bristow LLP and/or counsel concerning events relevant to the Claimants' claims subsequent to 16 April 2012.

4. All other documents containing factual instructions from the Claimants (or representatives of either of them) to other firms of solicitors other than those concerning this claim (including Jones Day and Reed Smith) concerning events relevant to the Claimants' claims subsequent to 16 April 2012.

13. No difficulty arises over the first class. In the email of 29 March Mr Holyoake says:

"On or around February 12, I asked our lawyers Collyer Bristow to

make an internal file note."

And subsequently says:

"I think it's important CB provide a copy of their file note together

with my email to them detailing the threats."

That seems to me to amount to an incorporation by reference of both the file note and the email there referred to and those documents should be disclosed.

14. In email number 4 of 16 April, Mr Holyoake says under the heading "Duress":

"We have written on the above already in a previously email.

We will firm this up with exact dates, et cetera, as needed and

revert ASAP."

As to the reference to a previous email, that again seems to me to amount to an incorporation by reference and should be disclosed if it has not already been. I say "if it has not already been" because it may very well be a reference to the email of 29 March, but if it is a reference to some other email, that should be disclosed. As to the reference to "we will firm this up and revert ASAP", that is something that is, as it were, incorporated in advance and if there is any such email, it should be disclosed as part of the same conversation. I say "if" because Mr Stewart indicated that he thought Mr Holyoake never in fact did revert, in which case, of course, there is nothing to disclose.

15. So much for class 1. of the defendants' four classes. The other three are much more contentious. I will take class 2. next.
16. It is common ground that the most recent detailed consideration of the principle of collateral waiver is that by Mann J in Fulham Leisure Holdings Limited v Nicholson Graham & Jones [2006] EWHC 158 (Ch). The principles derived by Mann J from the earlier cases are set out at [11] of his judgment as follows:

"(i) One should first identify the 'transaction' in respect of which the disclosure has been made.

(ii) That transaction may be identifiable simply from the nature of the disclosure made - for example, advice given by counsel on a single occasion.

(iii) However, it may be apparent from that material, or from other available material, that the transaction is wider than that which is immediately apparent. If it does, then the whole of that wider

transaction must be disclosed.

(iv) When that has been done, further disclosure will be necessary

if that is necessary in order to avoid unfairness or misunderstanding

of what has been disclosed."

17. Then, after referring to some of the earlier authorities, he deals at [17] with the use of the words "transaction" and "issue", saying that they are apparently the same concept, and at [18] says this:

"What those citations show is that it is necessary to bear in mind two concepts. First of all, there is the actual transaction or act in respect

of which disclosure is made. In order to identify the transaction, one

has to look first at what it is in essence that the waiving party is seeking

to disclose. It may be apparent from that alone that what is to be disclosed is obviously a single and complete "transaction" -- for example, the advice given by a lawyer on a given occasion. In respect of disclosure before a trial that may be all that the non-disclosing party has to go on, because a wider context may not yet be apparent (or at least not until the exchange of witness statements). This may explain the contrast that Hobhouse J drew between disclosure before a trial and deployment at trial. However, in order to ascertain whether that is in fact correct one is in my view entitled to look to see the purpose for which the material is disclosed, or the point in the action to which it is said to go. That explains at least some of the references to the "issue" or "issues" in the judgments of Auld LJ and Mustill J. Mr Croxford submitted that the purpose of the disclosure played no part in a determination of how far the waiver went. I do not agree with that; in some cases it may provide a realistic objectively determinable definition of the "transaction" in question. Once the transaction has been identified, then those cases show that the whole of the material relevant to that transaction must be disclosed. In my view it is not open to a waiving party to say that the transaction is simply what that party has chosen to disclose (again contrary to the substance of a submission made by Mr Croxford). The court will determine objectively what the real transaction is so that the scope of the waiver can be determined. If only part of the material involved in that transaction has been disclosed then further disclosure will be ordered and it can no longer be resisted on the basis of privilege."

18. Then, at [19], he deals with a further principle, which is that:

"Once the transaction has been identified and proper disclosure made of that, then the additional principles of fairness may come into play if it is apparent from the disclosure that has been made that it is in fact part of some bigger picture ... and fairness, and the need not to mislead, requires further disclosure."

19. Mr Lord therefore said one had to start with identifying the transaction or issue. In this context, he referred me to R v Seaton, [2010] EWCA Crim 1980, a decision of the Court of Appeal Criminal Division, where at [43] the Court of Appeal set out its conclusions, including these:

"(c) However, the defendant is perfectly entitled to open up his communication with his lawyer, and it may sometimes be in his interest to do so. One example of when he may wish to do so is to rebut a suggestion of recent fabrication. Another may be to adduce in evidence the reasons he was advised not to answer questions. If he does so, there is no question of breach of privilege because he cannot be in breach of his own privilege. What is happening is that he is waiving privilege. (d) If the defendant does give evidence of what passed between him and his solicitor, he is not thereby waiving privilege entirely and generally, that is to say he does not automatically make available to all other parties everything that he said to his solicitor, or his solicitor to him, on every occasion. He may well not even be opening up everything said on the occasion of which he gives evidence, and not on topics unrelated to that of which he gives evidence. The test is fairness and/or the avoidance of a misleading impression. It is that the defendant should not, as it has been put in some of the cases, be able to both "have his cake and eat it". (e) If a defendant says that he gave his solicitor the account now offered at trial, that will ordinarily mean that he can be cross-examined about exactly what he told the solicitor on that topic ..."

20. Mr Lord sought to draw from that the word "topic" as an alternative to "transaction" or "issue" so as to produce the trilogy "transaction or issue or topic", and then suggested that the transaction or issue or topic in the present case as to which waiver had been given was the claimants' or their representatives' account to their lawyers of the defendants' allegedly threatening and unlawful behaviour towards the claimant and his family, together with the alleged effects.
21. However I do not find R v Seaton or its use of the word "topic" of any real assistance. It is true that the case was concerned with waiver of privilege, and in particular with waiver of privilege in what a party had told his lawyer in order to rebut a suggestion of recent fabrication, but it was not concerned, so far as I can see, with any question of collateral waiver.
22. The point the Court of Appeal was making is that by waiving privilege in that communication to his own lawyer, the defendant was not waiving privilege generally, but only on that particular matter. He could be cross-examined as to exactly what he told the solicitor on that topic, where "topic" meant in the particular case the topic of how he came to sustain injuries to his hands (see [8]). But nothing in what the Court of Appeal said addressed the question of whether, by waiving privilege in what he said to the solicitor on that topic on one occasion, the defendant thereby opened himself up to being cross-examined as to what he said to his solicitor or to other lawyers on the same topic or related topics on some other occasion. It was simply not in issue in that case. I therefore put R v Seaton and its use of the word "topic" on one side.
23. That means one goes back to the Fulham case and the reference to "transaction" or "issue". That at first blush seems a bit odd as one would not have thought that a "transaction", ie something that happened, was a similar concept to an "issue", ie something that is in dispute in a case. But the explanation is that Mann J took the word "transaction" from the judgment of Hobhouse J in General Accident Fire and Life Assurance Corporation Limited v Tanter [1984] 1 WLR 100, and the word "issue" from the judgment of Mustill J in Nea Karteria Maritime Company Limited v Atlantic and Great Lakes Steamship Corp [1981] Comm LR 138, both words being picked up by Auld LJ in R v Secretary of State for Transport ex parte Factortame (1997) 9 Admin Law Reports 519. It is therefore helpful to go back to the earlier cases to understand what "transaction" or "issue" refers to.
24. In Nea Karteria, to which I was not referred but which is adequately summarised in Tanter, privilege was waived in an interview between a witness, a seaman, and the plaintiff's Greek lawyer. The account given by the seaman in that interview was different from his evidence at trial.
25. Mustill J said that the issues in relation to which the material had been deployed were as follows:

"... the prime issue is whether and, if so in what circumstances, the seaman accepted the truth of an account of events different from one which on two other occasions he has put forward. This involves the question whether he did give the answers recorded in document P35, whether that document represents a complete record of what happened and of what might be termed the general atmosphere of the meeting, having regard to the seaman's evidence that he signed the statement to get rid of the lawyers."

26. On that basis Mustill J held that there had been a collateral waiver of a list of questions prepared by the plaintiff's solicitors for their Greek lawyer to use at the meeting on the basis that that formed the agenda, as it were, of the meeting.
27. Hobhouse J, in Tanter, said of this (at 113F):

"He [that is Mustill J] held that the issue was what was said

at the meeting between the lawyer and the Greek seaman, and the

correct evaluation of that meeting. But he did not accept that it

extended to other matters which did not form part of that transaction.

He did not treat the transaction as being the facts of the subject matter

of the conversation at the meeting."

28. And again he said this (at 113H):

"Furthermore, it is central to Mustill J's judgment that you must define what is the subject matter with which you are concerned. He did not

treat the subject matter as all the things about which the seaman spoke,

but he merely treated as the subject matter what had been said on that occasion."

29. In Tanter, privilege was waived in a memorandum between a firm of brokers and its solicitors, which reported on a number of matters, including, in particular, a conversation said to have taken place that day between a director of the brokers and an underwriter, Mr Posgate. Hobhouse J held that it had not in fact been put in evidence yet, although it had been put in cross-examination of Mr Posgate, but that if and when it was put in evidence, it would waive privilege in that communication, not in other communications. The way he put it is this -- this is at 114B:

"... I have come to the conclusion that Mr Saville's application is misconceived and premature and that his submissions are incorrect ... when and if the document is put in evidence the consequences for the waiver of privilege will be solely with regard to what Mr Baxter did or did not say on 6 October 1981. What will have happened is that the putting into evidence of that document will have opened up the confidentiality of that transaction. It has not opened up the confidentiality of later privileged communications -- for example, what Mr Baxter has said subsequently and separately to the solicitors and, for example, later statements that he has made to his solicitors remain privileged. The confidentiality of them has not been waived and they have not ceased to be privileged."

30. Then, at the end of his judgment, he summarised the principles upon which he was relying and they included as follows (at 114F):

"Third, a party is at liberty to decide whether or not to waive privilege and, if so, to the extent to which he does so. That is expressly stated in Lyell v Kennedy, 27 (Ch.D.) 1, in the passage to which I referred."

31. That is a reference to the judgment of Cotton LJ in Lyell v Kennedy which had been previously quoted by Mustill J and was quoted by Hobhouse J as follows:

"There was this contention raised, which I have not forgotten: that the defendant had waived his privilege and therefore could not claim it at all. That, in my opinion, was entirely fallacious. He had done this, he had said, 'Whether I am entitled to protect them or not, I will produce certain of the documents for which I had previously claimed privilege -- I will waive that, and I will produce them', but that did not prevent him relying on such protection with regard to others which he did not like to produce. It is not like the case of a man who gives part of a conversation and then claims protection for the remainder, and we think there is no ground for the contention that there has been here a waiver of privilege."

32. Going back to Hobhouse J's summary of his principles, he continued at "Sixth" as follows at 114H):

"Sixth, by adducing evidence at a trial, one does get involved in potential further waiver. The underlying principle is one of fairness in the conduct of the trial and does not go further than that. The fact that this principle does not arise unless you adduce the evidence at the trial is clearly stated in the judgment of Mustill J and it was clearly raised in the facts of the Doland case and it was likewise raised by the facts in the Great Atlantic and Burnell cases. Further, if the evidence is adduced, then the extent of the waiver relates to the transaction to which that evidence goes. The extent of the transaction has to be examined and where it is what somebody said on a particular occasion, then that is the transaction. It is not the subject matter of those conversations. It does not extend to all matters relating to the subject matter of those conversations."

33. Then at "Eighth" he said this at (at 115D):

"Eighth, with regard to the consequences, once evidence is adduced it gives rise to a right to cross-examine freely and fairly with regard to the transaction in respect of which the document is adduced or the evidence is called. The principle applies to the introduction of both documentary and oral evidence. Fairness requires that the opposite party shall be entitled to investigate by cross-examination the transaction and therefore be entitled to ask for and see documents that are relevant to that transaction. But the requirements of fairness do not go beyond that; no conclusion is to be drawn from the use by Mustill J, or indeed by the Court of Appeal, of language such as "the whole of the material" or "the whole of the material and not merely a fragment" to extend the principle beyond the actual transaction so as to include the matters which are merely referred to in the relevant communication. That is the essence of the decision of Mustill J and any other conclusion would be a departure from his decision."

34. That review of those authorities explains how the same concept can be described as both "the relevant issue" by Mustill J and "the relevant transaction" by Hobhouse J. What Mustill J refers to as "the issue" is what was said at the meeting between the seaman and the Greek lawyer, and the atmosphere at the meeting. It is not the underlying facts about which the seaman was interviewed. What Hobhouse J refers to as "the transaction" is the same concept of what somebody said on a particular occasion. It is not the subject matter of those conversations.
35. With that digression, I can return to what Mann J meant in Fulham at [11], when he said that you first have to identify the transaction in respect of which disclosure has been made. Unless he is consciously taking a different view to Hobhouse J, he means the actual communication in which privilege is waived. I do not read him as taking any different view from Hobhouse J. When, therefore, at [18] he says, "First of all there is the actual transaction or act in respect of which disclosure is made", he means the same as Hobhouse J does when he says it is what somebody said on a particular occasion.
36. In the present case, that is the emails of 29 March and 15 to 16 April. It is not, as Mr Lord submitted, all communications between the claimants and their lawyers on the topics of alleged threats and their consequences.
37. It is true that Mann J goes on to say at [18] that, "... in order to ascertain whether that is in fact correct one is in my view entitled to look to see the purpose for which the material is disclosed, or the point in the action to which it is said to go", but on the facts of this case it does not make any difference. The purpose for which the material was disclosed is obvious. It is an attempt, whether successful or not, to rebut the suggestion of recent fabrication by establishing that Mr Holyoake said something similar to his lawyers as long ago as March and April 2012. That purpose does not seem to me to alter the transaction in question, which remains what Mr Holyoake said in these particular emails. It is nothing to the point either that the account he then gave may not in fact be consistent with what he now says -- that is a point which Mr Lord may seek to rely on in due course, but which does not affect the purpose for which it was adduced -- nor is it to the point that it may not be a total answer to the suggestion that Mr Holyoake has made up the allegations as he could have made them up in 2012. That again does not affect the purpose for which the evidence was adduced, which is to rebut at any rate the suggestion that he has made them up recently.
38. On Mann J's first question, therefore, I hold that the transaction in question is the communication made in the emails of 29 March and 15 and 16 April, including email number 5 on 16 April, which is part of the same communication and hence part of the same transaction. It is not the threats or all communications made by Mr Holyoake to his lawyers about the threats.
39. So when Mann J says at [18] "The court will determine objectively what the real transaction is so that the scope of waiver can be determined. If only part of the material involved in that transaction has been disclosed, then further disclosure will be ordered", and I ask whether Mr Lord's class 2. is part of the material included in that transaction, the answer to my mind is clearly "no".
40. The next question is that of wider disclosure as referred to by Mann J in [19]. Mr Lord said that fairness required disclosure of other communications to his lawyers about the threats up to April 2012 so that the court had the full picture. In this respect he employed a number of beguiling metaphors: that it is all part of the same cherry tree or at least the same orchard; Mr Holyoake is letting the defendants look in the cupboard and see what is there; he has invited the court to look behind the curtain. These are appeals to a general principle of fairness and one can certainly see the attraction of the way in which he puts it.
41. However, I think it is necessary to adopt a structured approach. There are, I think, two principles in play: one is that a party can pick and choose what material to waive privilege in: see the passage of Cotton LJ in Lyell v Kennedy which I have already cited. The other is that if a party does choose to waive privilege, fairness may require further disclosure. These principles are obviously in tension and different minds may have very different views as to where the balance is to be struck. I think in those circumstances appeals to what is fair are apt to be an elusive test, as what strikes one judge as fair in one case may not strike another judge as fair in another case.
42. That sort of discrepancy between judges may be unavoidable in circumstances where a discretion is conferred on the court, as it is recognised that different judges may come to different conclusions in the exercise of a discretion, as there is usually a generous ambit within which most discretions can be exercised.
43. But as Mr Lord himself said, the determination of this issue, that is "What is the scope of collateral waiver?", is not a discretionary exercise, but in principle an objectively determinable matter. I accept that. It may well be true, as I suggested to Mr Lord in argument, that the court always retains a discretion whether to order disclosure and inspection under the powers in the CPR, but the answer to that point is given by Hobhouse J in Tanter at 116 E to H, namely that once it has been decided that fairness requires further disclosure, there is no separate issue arising under the rules as the criteria for the exercise of any discretion are the same.
44. In those circumstances, I consider that it is safer and more satisfactory not to rely on what I might consider fair, but on what has been done in previous cases so as to produce as great a degree of consistency, and hence predictability, of decisions in this area. In this respect, it is striking, as Mr Stewart pointed out, that Mr Lord's submissions reproduce almost exactly the submissions of Mr Mark Saville QC, as he then was, in Tanter. Those submissions can be found in the letter from his clients' solicitors quoted by Hobhouse J at 105H as follows:

"Our clients require specific discovery of all other documents previously privileged that are or have been in the possession, custody or care of your clients and in relation to which privilege has thereby been waived. We are now entitled to specific discovery of all documents that relate to or bear upon a number of topics."

And Hobhouse J interposes:

"... Those topics have been redefined by Mr Saville, so I will use his redefinition -- Then it reads: 'In particular without prejudice to the generality of this request, our clients seek discovery of the proofs of evidence of Mr Baxter and Mr Mocatta, all communications between your clients and yourselves and all instructions to counsel and memoranda prepared by you in so far as these documents relate to the above matters'."

45. Hobhouse J reverted to it at 107G where, after referring to the Doland case -- that is George Doland Limited v Blackburn, Robson Coates & Co [1972] 1 WLR 1338, a decision of Geoffrey Lane J -- he said:

"Mr Saville's submission in the present case follows precisely the logic of that case and that decision. He says that the equivalent of the two points to which Geoffrey Lane J referred were the five topics which he himself formulated."

And then he referred to Mr Saville's submission as follows:

"... it is proper to have discovery of proofs of evidence, instructions to counsel and memoranda prepared by the solicitors for the purposes of trial or, indeed, any other purpose."

46. Of that submission of Mr Saville's he said:

"This is a submission of astonishing breadth. If it is to be acceded to, it has very serious implications, not only for the disclosure of confidential documents that are created or obtained for the purpose of a trial and its preparation, but also for a whole number of situations that arise almost every day in litigation."

47. Interestingly, one of the examples he gives is as follows:

"Again, in re-examination statements may be used to contradict a suggestion by opposing counsel in cross-examination of a recent invention by a witness. That use in re-examination obviously waives the privilege that previously existed in that statement. It would be submitted -- and indeed Mr Saville does not shrink from that submission -- that the waiver of the privilege of that statement also waived the privilege for all other statements or comparable documents."

48. That is, of course, precisely the position here and incidentally tends to support my understanding that there was nothing very surprising or innovative in the course adopted by Mr Stewart in waiving privilege in the course of re-examination in an attempt to rebut a suggestion of fabrication.
49. It is quite plain from his judgment that Hobhouse J did not accept Mr Saville's submission. At 114B, as I have already referred to, he described the application as "misconceived and premature" and his submissions as "incorrect". At 114C, again, as already referred to, he held that if and when put in evidence, the documents would not open up the confidentiality of later privileged communications.
50. At 115B he said this:

"... I would observe that if Mr Saville's submissions were to be accepted in full at face value they would be tantamount to a disruption of legal professional privilege. Any waiver of privilege at all would be liable to have the most wide ranging consequences and indeed to give rise to a reductio ad absurdum. If one follows the approach of looking at the transaction concerned rather than at the subject matter of the communications, that problem does not arise."

51. It follows from that that Hobhouse J plainly did not regard fairness as requiring disclosure of later privileged communications on the same topic. I am, of course, not strictly bound by his decision, but I should follow it unless persuaded he was wrong. I am not so persuaded and, as I have already said, consistency in matters of practice such as this is an important principle because litigants ought to be able to predict, with a fair degree of confidence, what, if they choose to waive privilege in one document, the consequences are likely to be in terms of collateral waiver of other documents.
52. It seems to me, therefore, that I ought to and I will follow Hobhouse J and hold that fairness does not require the disclosure of later privileged communications between Mr Holyoake and his lawyers concerning the threats made up to April 2012 as sought in Mr Lord's class 2.
53. Mr Lord pointed to the fact that in Fulham Mann J did require disclosure of later advice which was an alteration, amplification or extension of advice already disclosed; see at [23]. It is apparent, however, that he included that on the basis that it could fairly be treated as being part of the same advice, see at [22], also referring to In Re Konigsberg (a bankrupt) [1989] 1 WLR 1257, where a later letter was "closely connected" with the disclosed letter. It was no doubt on that basis that email number 5 on 16 April 2012 was disclosed, being in reality all part of one extended communication.
54. If Mr Holyoake had sent an email on 17 April saying, "I have just looked at what I wrote yesterday and its not quite right, here is a correction", that would no doubt also fall within this principle, as indeed Mr Stewart accepted. But I do not think Mann J's principle is sufficient to justify requiring disclosure of all later communications on the same topic, that of threats, as Mr Lord sought. In one sense, no doubt, any later statement by Mr Holyoake to his lawyers on the same topic, unless a mere word-for-word repetition, could be characterised as either an amplification or extension or alternatively as a qualification or alteration of what he had already said. But I do not think this is what Mann J had in mind and to read it that way would completely undermine the principles laid down by Hobhouse J that waiver of privilege in one communication waives privilege in that transaction but not in the underlying topics, and does not entail the waiver of later privileged communications on the same topic.
55. For these reasons I reject the submissions of Mr Lord in relation to class 2. It follows that I also reject his submissions in relation to classes 3. and 4., which are a fortiori, and save for the limited extent which I have indicated in relation to class 1., I dismiss the application.

MR STEWART: My Lord, I should tell your Lordship that, following your Lordship's indication on Friday afternoon, we have written to my learned friend's solicitors and we have included the February memorandum and the emails which surround them.

MR JUSTICE NUGEE: Thank you.

Yes. Is there anything else?

MR LORD: No, my Lord.

MR JUSTICE NUGEE: Shall we proceed with the evidence?

MR LORD: My Lord, thank you for that. We will obviously draft the order appropriately and record the documents on point one, but not the others. And thank you, my Lord, for dealing with it at such short notice. We are grateful for that.

MR JUSTICE NUGEE: Not at all.

(10.41 am)