Hellard & Anor v Mitchell (Rev 1) [2012] EWHC 2656 (Ch) (21 August 2012)

Hellard & Anor v Mitchell (Rev 1) [2012] EWHC 2656 (Ch) (21 August 2012)

By bringing proceedings against the solicitors and referring to counsel's advice in pleadings, the claimants have impliedly waived privilege in relation to all communications and evidence concerning counsel's advice, including working papers, notes, and recollections. Waiver extends to all parties privy to the communication, not just the solicitors, to prevent unfairness and cherry-picking.

Citation
[2012] EWHC 2656 (Ch)
Parties
Claimant: Kevin Hellard; Defendant: Irwin Mitchell
Jurisdiction
England and Wales
Judgment Date
21 August 2012
Procedural Posture
Professional Negligence / Application for Declaration Regarding Waiver of Privilege
Outcome
Declaration granted
Legal Topics
Waiver of Privilege, Confidentiality, Solicitor Client Relationship, Evidence Admissibility
Professional Negligence Legal Professional Privilege Waiver of Privilege Confidentiality Solicitor Client Relationship Evidence Admissibility

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Parties

Kevin Hellard

Claimant

Irwin Mitchell

Defendant

Procedural Posture

Professional Negligence / Application for Declaration Regarding Waiver of Privilege

Legal Issues

  1. 1 Whether bringing proceedings against solicitors constitutes implied waiver of legal professional privilege in respect of counsel's advice and related communications
  2. 2 Whether waiver extends to counsel's working papers, notes, and recollections

Ratio Decidendi

By bringing proceedings against the solicitors and referring to counsel's advice in pleadings, the claimants have impliedly waived privilege in relation to all communications and evidence concerning counsel's advice, including working papers, notes, and recollections. Waiver extends to all parties privy to the communication, not just the solicitors, to prevent unfairness and cherry-picking.

Court Disposition

Declaration granted

Orders

  • Declaration that privilege and confidentiality in relation to counsel's advice and related communications have been waived by bringing proceedings; counsel may be approached for witness statements.