Simpkin v The Berkeley Group Holdings Plc, England and Wales High Court (Queen's Bench Division), Judgment, Law, casemine.com

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Attorney(S)

Martin Griffiths QC and Iain Quirk and Rachel Barrett (instructed by Slater & Gordon) for the Claimant
Andrew Clarke QC and Hodge Malek QC and David Lascelles and James Potts (instructed by Gibson Dunn & Crutcher LLP) for the Defendant

Judges

MR JUSTICE GARNHAM

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Simpkin v. The Berkeley Group Holdings Plc

Smart Summary

Factual and Procedural Background

On 1 September 2014, the Plaintiff was asked to resign from his position as Group Finance Director and statutory director of Company A. Subsequently, on 22 and 24 September 2014, the remuneration committee and the board of the Defendant company decided that, upon termination, the Plaintiff would not be considered a "good leaver" for the purposes of two Long Term Incentive Plans ("LTIPs") and a bonus scheme operated by the Defendant. The Plaintiff was removed as director on 8 September 2014 and given notice of termination on 24 September 2014.

A prior judgment by Judge Foskett on 24 June 2016 outlined the background to the case and directed a trial of a preliminary issue focusing on specific matters identified by the court. On 22 and 24 May 2017, applications relevant to the preliminary issue trial were heard. The court struck out significant passages in the Defendant's witness statements inconsistent with Judge Foskett’s order and made an order regarding disclosure of documents from the Plaintiff's divorce proceedings.

Three remaining applications were pending: (1) the Plaintiff sought to restrain the Defendant from referring to a document known as the Plaintiff's "Synopsis"; (2) the Defendant sought inspection of two emails dated 6 and 11 August 2014 related to privilege claims; and (3) the Plaintiff sought inspection of redacted passages in the minutes of the 22 and 24 September 2014 meetings. Additionally, a sub-issue arose regarding the strike-out application concerning parts of the Defendant's witness statements.

Legal Issues Presented

Whether references to the Plaintiff's whistleblowing allegations should be excluded from the current proceedings given exclusive jurisdiction of the Employment Tribunal over such claims.
Whether the Defendant should be restrained from referring to the Plaintiff's "Synopsis" document on grounds of legal professional privilege and confidentiality.
Whether the Defendant is entitled to inspect two emails relevant to claims of privilege over the Synopsis document.
Whether the Defendant's redactions of minutes and notes from the 22 and 24 September 2014 committee meetings are justified by claims of litigation privilege and without prejudice privilege.
The scope and effect of partial waiver of privilege in relation to disclosed and redacted documents.

Arguments of the Parties

Plaintiff's Arguments

The Plaintiff asserts a whistleblowing claim under the Employment Tribunal’s exclusive jurisdiction and objects to its consideration in the current proceedings.
The Plaintiff proposes to remove some but not all references to whistleblowing allegations from his witness statement, arguing that certain references are necessary for fairness and context.
The Plaintiff contends that the Synopsis document and related emails are protected by legal advice privilege and litigation privilege, as they were prepared and communicated for the dominant purpose of obtaining legal advice in ongoing divorce proceedings.
The Plaintiff argues a reasonable expectation of privacy existed concerning the Synopsis despite its creation on Defendant’s IT systems, emphasizing the confidential nature and limited distribution of the document.
The Plaintiff challenges the Defendant’s claim of litigation privilege over redacted minutes, arguing the "sole or dominant purpose" test is not met and that privilege has been waived.
The Plaintiff asserts that the Defendant’s partial disclosure of legal advice waives privilege over the entire transaction and that the Defendant’s redactions constitute impermissible "cherry picking".

Defendant's Arguments

The Defendant contends that references to whistleblowing allegations are relevant and justified as a response to the Plaintiff's witness statements.
The Defendant argues the Synopsis document was not confidential as against it, given it was created, stored, and transmitted via its IT system, and that the Plaintiff had no reasonable expectation of privacy.
The Defendant submits that privilege cannot be claimed to exclude secondary evidence of a privileged document once it has come into their possession.
The Defendant claims that the Plaintiff’s evidential basis for privilege over the Synopsis is unsatisfactory and that the court should exercise its equitable discretion not to restrain use of the document.
The Defendant seeks inspection of two emails to test the Plaintiff’s claim of privilege over the Synopsis, arguing that privilege may have been waived by the Plaintiff’s deployment of the documents.
The Defendant defends the redactions of meeting minutes on grounds of litigation privilege and without prejudice privilege, asserting that the advice relates to anticipated litigation and is distinct from advice on the exercise of discretion.
The Defendant argues that privilege can be maintained in parts of documents dealing with separate subject matters and denies any waiver of litigation privilege.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Derby Magistrates Court Ex Parte B [1996] AC 487	Legal professional privilege is protected by essential public policy; privilege is lost upon disclosure; equitable jurisdiction to restrain breach of confidence.	Supported the high protection of privilege and the court’s equitable discretion in restraining breaches of confidence involving privileged documents.
R (Morgan Grenfell) The Special Commissioner of Income Tax [2003] 1 AC 567	Scope of legal advice privilege, including communications not containing legal advice themselves.	Used to explain the extent of legal advice privilege relevant to communications in the case.
West London Pipeline v Total UK [2008] 2 CLC 258	Relevance is not the test for legal professional privilege; sole or dominant purpose test for litigation privilege.	Relied upon in arguments concerning the purpose of documents and privilege claims.
Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610	Legal professional privilege extends to communications through intermediaries; confidentiality and privilege requirements.	Applied to assess privilege claims over communications and documents.
Pennwell Publishing v Ornstein [2008] 2 BCLC 246	Company’s possession of documents on its server does not entitle it to retain or use them if privileged.	Supported the Plaintiff’s argument regarding privilege despite company server storage.
Shepherd v Fox Williams LLP [2014] EWHC 1224 (QB)	Confidentiality required to maintain privilege is not easily lost; employee’s expectation of privacy in privileged documents.	Considered but distinguished on facts; did not assist Plaintiff due to different circumstances.
Calcraft v Guest [1898] 1 QB 759	Once privileged document is disclosed, secondary evidence may be admissible; privilege does not bar evidence admission.	Used to explain limits of privilege once a document is in opposing party’s hands.
Lord Ashburton v Pape [1913] 2 Ch 469	Equitable jurisdiction to restrain breaches of confidence involving privileged documents; public interest exceptions.	Guided court’s equitable discretion analysis on restraining use of the Synopsis document.
ISTIL Group Inc v Zahoor [2003] EWHC 165 (Ch)	Principles governing court’s discretion to restrain breach of confidence involving privileged documents already disclosed.	Applied to analyze whether to grant injunction restraining use of the Synopsis.
Dunlop Slazenger International v Joe Bloggs Sports Ltd [2003] EWCA Civ 901	Definition of "deploying" privileged material and waiver of privilege through reliance on contents.	Used to determine whether Plaintiff waived privilege by reliance on contents of emails.
Fulham Leisure Holdings Ltd v Nicholson Graham & Jones [2006] EWHC 158	Partial waiver of privilege extends to whole transaction; identification of transaction critical.	Applied to conclude that Defendant’s partial disclosure waived privilege over entire transaction.
Waugh v The British Railways Board [1980] AC 251	Sole or dominant purpose test for litigation privilege; denial of privilege if litigation is only one of several purposes.	Applied to reject Defendant’s claim to litigation privilege over redacted minutes.

Court's Reasoning and Analysis

The court first addressed the issue of whistleblowing references, concluding that most references to whistleblowing allegations in the Plaintiff’s witness statements were outside the scope of the preliminary issue and should be struck out except for the first sentence of paragraph 135, which was necessary for fairness and context. The court also restricted the Defendant from relying on witness statements from individuals not party to the relevant conversation, thereby confining the scope of evidence on whistleblowing in line with Judge Foskett’s order.

Regarding the Synopsis document, the court found that the Plaintiff did not have a reasonable expectation of privacy or confidentiality vis-à-vis the Defendant. This was because the document was created, stored, and transmitted using the Defendant’s IT systems, which the Plaintiff acknowledged were subject to monitoring and access by the Defendant. The court rejected the Plaintiff’s privilege claim over the Synopsis, emphasizing that the document was not confidential against the Defendant and that the Plaintiff’s equitable claim for restraining use was undermined by his lack of "clean hands" related to inconsistencies between the Synopsis and his witness statements.

On the Defendant’s application for inspection of two emails, the court held that the Plaintiff had waived privilege over the email of 6 August 2014 by deploying its contents to support his case, but had not waived privilege over the email of 11 August 2014, which was only referenced narratively.

In relation to the redacted minutes of the Defendant’s committee meetings, the court rejected the Defendant’s claim to litigation privilege. It held that partial waiver of privilege extended to the entire "transaction" of legal advice relating to the exercise of discretion and anticipated litigation. The court found that the Defendant had improperly "cherry-picked" parts of documents to withhold and that the disclosed advice intertwined with the withheld advice, necessitating full disclosure to avoid unfairness and misleading the court.

Holding and Implications

The court’s final decisions were as follows:

The Plaintiff’s application to strike out references to whistleblowing allegations was granted, except for limited contextual references.
The Plaintiff’s application for an injunction restraining reference to the Synopsis document was REFUSED, as the document was not confidential or privileged against the Defendant.
The Defendant was entitled to inspect the email of 6 August 2014 due to waiver of privilege, but not the email of 11 August 2014.
The Defendant’s claim to litigation privilege over redacted parts of the committee meeting minutes was REJECTED, and full disclosure was required due to partial waiver and the interconnected nature of the advice.

The court’s rulings directly affect the evidential scope and privilege claims in the ongoing litigation between the parties. No new legal precedents were established; rather, the court applied established principles of legal professional privilege, equitable discretion, and waiver to the facts before it.