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Privilege: A Review of Recent Decisions of the English Courts

October 13, 2008

By Donna E. Goldsworthy, Jing Li and Miranda X. Thomas

The English Court of Appeal has ended a debate surrounding the English Civil Procedure Rules (CPR) and legal professional privilege by confirming that the mention of a document in the disclosure process is not necessarily an automatic waiver of privilege. However, care should be taken when references to privileged documents are made.

In Expandable Limited & Another v Rubin [2008] EWCA Civ 59 (the Expandable Limited case), the Court of Appeal had to consider whether a covering letter from a solicitor had been mentioned in the respondents witness statement for the purposes of CPR 31.14 and, if so, whether legal professional privilege for the letter was automatically and absolutely lost.