Fulham Leisure Holdings Ltd v Nicholson Graham & Jones (A Firm)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann,MR JUSTICE MANN |
| Judgment Date | 05 October 2006 |
| Neutral Citation | [2006] EWHC 2428 (Ch),[2006] EWHC 158 (Ch),[2006] EWHC 2017 (Ch) |
| Docket Number | Case No: HC03C01407 |
| Court | Chancery Division |
| Date | 05 October 2006 |
[2006] EWHC 158 (Ch)
Mr Justice Mann
Case No: HC03C01407
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR. I. CROXFORD Q.C. and MR. M. CANNON (instructed by Messrs. Kendall Freeman) for the Claimant
MR. R. STEWART Q.C. and MR. H. EVANS (instructed by Mayer, Brown, Rowe & Maw LLP) for the Defendant.
Hearing dates: 20 th, 23 rd, 26 th, 27 th, 30 th and 31 st January 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic
This judgment gives reasons for the decision that I made on 31 st January 2006 when I declined an application made by the defendants in this case with one relatively minor qualification. The disclosure sought covered legal advice given by counsel and solicitors to the claimant across a period of some four months at the end of 2001 and at the beginning of 2002. It arises in the following circumstances.
This action is a claim for professional negligence, brought by the claimant against solicitors who were acting for it when it purchased an interest in Fulham Football Club in 1997. The negligence is said to have arisen because the defendants allowed the transaction to complete on a footing which gave minority shareholders greater rights than it is said they should have had. It is said that that was neither agreed nor pointed out to the claimant. The details of all that do not matter for present purposes. In the period in question, the claimant was taking advice in relation to its position vis-à-vis the club and the minority shareholders. On 11 th October 2001, Mr Benson, a solicitor and consultant who was advising the claimant in relation to those matters, instructed Mr Michael Briggs QC to give some advice on the construction and effect of the documents in question. He gave that advice in consultation on 11 th October 2001. The attendance note of that consultation, and the instructions which gave rise to it, have been voluntarily disclosed by the claimant, and indeed the advice is referred to in its particulars of claim and in various witness statements. The claimant has also disclosed the "slides" of an electronic slide show prepared and presented by Messrs DJ Freeman, who were solicitors acting for the claimant at that time, that show having been made on an occasion on which a presentation was made to Mr Mohammed Al Fayed (who for these purposes can be taken as controlling the claimant) on 4 th December 2001.
One element of the claim made by the claimant in this case is the amount of legal professional fees spent in trying to sort out the position with the minority shareholders. In that context, and late in the day, the claimant has disclosed invoices from DJ Freeman and fee notes from counsel, from which it is now apparent that there was greater involvement of solicitors and counsel than merely their involvement in giving advice on the two occasions just referred to. For example, it is apparent that Mr Briggs was involved on a date after the date on which he gave advice, and junior counsel was acting as well (as indeed was anticipated by the attendance note of the consultation with him). The nature of the involvement of the lawyers, other than that referred to above, is not apparent from any of the material disclosed because it has been redacted. All that one can see is that the lawyers were acting in relation to the claimant, and it is said that they were so acting in matters relevant to this action. It has therefore been made apparent to the defendants that other legal advice was taken, and other legal services rendered, in connection with the matters on which Mr Briggs and DJ Freeman can be seen to have advised. A short witness statement has been provided by the claimant in this context, from a Ms Robson (a partner in the claimant's current solicitors), who confirms that counsel were instructed to draft and advise in relation to the preparation of legal proceedings which were not issued and to which the defendant was not an intended party, and that neither Mr Briggs nor junior counsel instructed with him in due course were instructed to revisit the advice given by Mr Briggs on 11 th October 2001.
As a result of the disclosure of that material, the defendants advanced the contention, several days into the trial, that the claimant has waived privilege in a category of documents, thus opening them up to disclosure and inspection. The category is described in Mr Stewart's skeleton argument as follows:
"The documents setting out or recording the instructions received and/or work done and/or advice given by Mr Briggs, Mr Marshall and DJ Freeman in relation to the claimant's dispute with the Muddymans in the period 2 nd October 2001 to 31 st January 2002 as set out on the invoices and fee-notes disclosed for the first time on the evening of 19 th January 2006."
The invoices are then more specifically identified.
It should be noted that disclosure is not sought on the footing that the cost of obtaining that legal advice forms part of the damages claimed in this action. Mr Croxford QC, who appears for the claimant, has relied on Paragon Finance plc v Freshfields [1999] 1WLR 1883 as authority for the proposition that he has not waived privilege in such documents merely by making a claim for the cost of the legal advice. Mr Roger Stewart QC, who appears for the defendants, does not advance his claim on that basis. Instead, Mr Stewart advances his claim on the basis that there has been a waiver of privilege because of the disclosure of documents that has taken place, and because of the reliance on those documents. I have already indicated what documents have been disclosed. The reliance placed on them is as follows:
(i) In paragraph 46 of the particulars of claim, the advice given by Mr Briggs in consultation is summarised in a number of sub-paragraphs. Paragraphs 47 and 48 go on to plead the consequences of that in terms of the position in which the claimant claims to have found itself.
(ii) One of the witnesses in this case is Mr Benson himself. He gave evidence in general terms which confirmed that the references in fee notes which we see to Mr Briggs acting further, and his junior acting further, related to the present matter. That of itself cannot amount to a waiver, not least because Mr Benson, in giving that evidence, is not acting on behalf of the claimant, and Mr Stewart does not rely on that act as being part of the waiver. However, in his witness statement he refers to going to Mr Briggs for advice, and in one sentence summarises Mr Briggs' view.
(iii) In his second witness statement he refers again in general terms to going to see Mr Briggs to take his advice "in the circumstances I mentioned in paragraph 38 of my first witness statement. Thereafter DJ Freeman (as they then were) prepared a presentation to [Mr Al Fayed]….on the ways forward regarding the dilution issue, which took place in December 2001."
(iv) Mr Byrne, another witness, refers in his witness statement to advice in general and historical terms. He merely recites that Mr Benson went to get advice from DJ Freeman. There are later references to advice taken the next year from another leader, but that does not matter for present purposes.
(v) Mr Fallowfield, financial controller for the Harrods Group, has provided a witness statement in which he refers to the fact that Mr Benson sought advice from Mr Briggs and that further discussions with Mr al Fayed culminated in a meeting with a partner at DJ Freeman on 4 th December 2001.
Of those witnesses, Mr Benson was part way through his oral evidence when this issue arose. The other two gentlemen had not yet given evidence.
In addition to that material, Mr Stewart also sought to rely on the way the case was put in Mr Croxford's opening written argument. At paragraph 123 of that document, Mr Croxford drew attention to the fact that Mr Benson decided to seek advice from Mr Briggs and summarised parts of it. It contains the sentence:
"Mr Benson's Instructions are at E17/51—53 and contain a helpful and important summary of Mr Benson's understanding and recollection in 2001 of the negotiations in 1997." (his emphasis)
Paragraph 124 lists various points that came out of the consultation and paragraph 125 summarises the situation as at that date, with Mr Briggs having advised. Paragraph 126 says very shortly that in the following months the claimant and Mr al Fayed considered what to do, and draws attention to the DJ Freeman slide show as being a "relevant document".
The arguments on privilege
Put shortly, the arguments of the respective parties on this point are as follows. Mr Stewart says that what has been disclosed in relation to the legal advice sought in the four months in question is a partial disclosure, or a partial selection of otherwise privileged material. He points out that the claimant seeks to rely upon it to support its assertions that its conduct was reasonable, to support what was Mr Benson's understanding and recollection in 2001 and to support what it says was the commercial position in negotiations which took place in 2002 when the minority shareholders were bought out. Since it was only partial disclosure, the doctrine of fairness comes into play, and fairness required that they and the court should see all the relevant material relating to advice so that it can be seen that the selection of material represents the whole of the material relevant to the issue just referred to. In support of this entitlement, he relies on R v Secretary of State for Transport Ex parte Factortame (CA unreported 7 th May 1997). In that case Auld LJ...
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