HIGH COURT DECISION ILLUSTRATES LIMITS OF THE CHERRY-PICKING RULE

The High Court has concluded that, where a claimant waived privilege in certain emails to rebut a suggestion of recent fabrication, only a small number of other privileged documents had to be disclosed as a result of the cherry-picking rule: Holyoake v Candy [2017] EWHC 387 (Ch). (The decision dates from February, but a transcript has only recently become available.)

Whenever a party to litigation deploys privileged material to support its case on the merits, the principle of collateral waiver, also known as the “cherry picking” rule, may come into play to result in a wider waiver than intended. In general terms, the court will require disclosure of any further privileged material that forms part of the same “transaction” or “issue”, and any further material required to avoid unfairness or misunderstanding of the material disclosed.

On the facts of the present case, the court found that the relevant “transaction” was relatively narrow; in effect, it was limited to the particular series of emails that had been relied on. It did not extend to later privileged communications on the same topic, and fairness did not require their disclosure.

In practice, however, parties who are considering deploying privileged material to support their case should take a cautious approach. Although the judge in this case indicated that his decision was based on a wish for a consistency and predictability, the courts’ approach to this question is anything but predictable – in particular, because it is highly fact-dependent. Accordingly, a decision to waive privilege should never be taken lightly.

Background

The claimant alleged that the defendants had made certain threats to him and his family. In the course of cross-examination, the defendant’s counsel suggested to the claimant that he had made up the allegations. In re-examination, in order to rebut the suggestion of recent fabrication, the claimant’s counsel put to him a series of four emails which he had written to his lawyers around the time of the alleged threats and which referred to threats said to have been made by the defendants.

It was not disputed that the emails were privileged or that, by putting the emails in evidence, privilege had been waived. The claimant therefore disclosed the four emails, and one other which it was accepted formed part of the same series. The question to be determined by the court was whether the claimant had thereby waived privilege in certain other documents under the principle of collateral waiver or the “cherry picking rule”.

In particular, the defendant sought an order that the claimant disclose: (i) all other documents referred to in the previously privileged documents; and (ii) (in broad summary) all other privileged communications on the topic of threats.

Decision

The court (Mr Justice Nugee) granted the order in respect of the documents referred to in the previously privileged documents (the first class of documents referred to above) but refused the order in respect of any other documents.

In relation to the first class, ie the documents referred to, the judge said there appeared to be “an incorporation by reference”, and so the documents should be disclosed as part of the same conversation.