J Sainsbury Plc & Anor v WSP Consulting Engineers Plc [2004] EWHC 2610 (TCC) (10 November 2004)

J Sainsbury Plc & Anor v WSP Consulting Engineers Plc [2004] EWHC 2610 (TCC) (10 November 2004)

Privilege in documents was waived where the claimants deployed or included redacted documents in the trial bundle, and fairness required disclosure of the full documents. The expert report (Mr Pepper) was not protected by common interest privilege because the interests of the claimants and their insurer were adverse at the time the report was created.

Citation
[2004] EWHC 2610 (TCC)
Parties
Claimant: J Sainsbury plc; Claimant: Sainsbury's Supermarkets Limited; Defendant/part 20 Claimant: WSP Consulting Engineers plc (formerly WSP Kenchington Ford plc); Part 20 Defendant: Keller Limited
Jurisdiction
England and Wales
Judgment Date
10 November 2004
Procedural Posture
Disclosure Application in Ongoing Civil Litigation (tcc) / Interlocutory Application During Trial
Outcome
Application granted in part
Legal Topics
Legal Professional Privilege, Waiver of Privilege, Disclosure of Documents, Common Interest Privilege, Mitigation of Loss, Damages for Breach of Contract
Civil Procedure Construction Law Contract Law Evidence Legal Professional Privilege Waiver of Privilege Disclosure of Documents Common Interest Privilege +2 more

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Parties

J Sainsbury plc

Claimant

Sainsbury's Supermarkets Limited

Claimant

WSP Consulting Engineers plc (formerly WSP Kenchington Ford plc)

Defendant/part 20 Claimant

Keller Limited

Part 20 Defendant

Procedural Posture

Disclosure Application in Ongoing Civil Litigation (tcc) / Interlocutory Application During Trial

Legal Issues

  1. 1 Whether redacted documents containing legal advice must be disclosed due to waiver of privilege
  2. 2 Whether expert reports (Mr Pepper) are protected by common interest privilege
  3. 3 Whether fairness requires full disclosure of partially disclosed documents

Ratio Decidendi

Privilege in documents was waived where the claimants deployed or included redacted documents in the trial bundle, and fairness required disclosure of the full documents. The expert report (Mr Pepper) was not protected by common interest privilege because the interests of the claimants and their insurer were adverse at the time the report was created.

Court Disposition

Application granted in part

Orders

  • Claimants to disclose unredacted copies of specified internal documents and emails to the defendant and Part 20 defendant
  • Claimants to disclose the report of Mr Pepper to the defendant and Part 20 defendant