Disclosure and Privilege: What happens when you mention a document in litigation?

When a document is referred to in a statement of case or a witness statement, its status for disclosure and privilege purposes becomes critically important.

In this article, we will explain:

• How CPR 31.14 operates when a document is mentioned in pleadings or evidence.
• How this interacts with legal professional privilege and implied waiver.
• The collateral waiver or cherry-picking rule.
• These rules apply across all litigation.

1. Documents mentioned in pleadings or witness statements – the right of inspection

CPR 31.14 gives a party the right to inspect a document mentioned in another party’s statement of case or witness statement, provided it is (or has been) within that party’s control.

Inspection can be required even if the document would not otherwise have been disclosable.

Key case: SciPharm Sarl v Moorfields Eye Hospital NHS FT [2021] EWHC 2079 (Comm)

The Court held that referencing a conversation that must have been recorded in an attendance note was enough to engage CPR 31.14, even though the note was not specifically named. The reference made it unreal to suppose the information came from anywhere else.

A party may still withhold inspection on a valid ground such as privilege, but they must expressly state that ground.

2. Privilege, waiver and the effect of referencing

Legal professional privilege protects confidential communications between lawyers and their clients (advice privilege) and documents created for litigation (litigation privilege). But referencing privileged material in pleadings or witness evidence can result in waiver.

Key principles:

– Privilege is the client’s, and only they can waive it.

– Waiver may be express or implied.

– Implied waiver arises where a party deploys the content of a privileged document.

– Mention of a document in a statement of case or witness statement or affidavit is not an automatic waiver of privilege, but the court looks at what is being done in substance.

Limited waiver: Belhaj v DPP [2018] EWHC 513 (Admin)

The Court confirmed that a party can waive privilege for a limited purpose, though the court will still intervene where fairness demands broader disclosure.

SciPharm again:

If a party appears to rely on the content of a privileged document (not merely its existence), waiver is much more likely.

3. The cherry-picking rule: collateral waiver

Collateral waiver stops a litigant from revealing only favourable parts of privileged material while withholding unfavourable parts.

Key case: Gorbachev v Guriev [2024] EWHC 622 (Comm)

– A chronology prepared by counsel was voluntarily disclosed.

– The defendant sought the later version and related attendance notes.

– The Court found that by disclosing the first chronology, the party had waived privilege over the entire “transaction”, including later iterations and connected documents.

4. How CPR 31.14, privilege and collateral waiver fit together

If a party mentions a document:

– CPR 31.14 may give the opponent a right to inspect it.

– Privilege may be waived if the content is deployed.

– Collateral waiver may extend the waiver to all related documents.

The result can be far broader disclosure than intended.

5. The general obligation to disclose

Parties must disclose all documents relevant to the dispute, whether they assist or harm their case, unless there is a justified reason to withhold them (such as privilege). This duty is ongoing throughout proceedings.

Referencing documents in evidence may change their status and may require reviewing the disclosure and privilege position.

Practical guidance for litigators

1. Audit references.
2. Identify privilege early.
3. Distinguish reliance vs mention.
4. Anticipate the transaction.
5. Draft carefully.
6. Monitor the disclosure duty.

Conclusion

Mentioning a document in a statement of case or witness statement can trigger the right of inspection under CPR 31.14 and may waive privilege, sometimes far more widely than intended. Understanding disclosure obligations, waiver principles and the cherry-picking rule is essential to managing litigation risk.

DISCLAIMER: The information provided on this blog is for general guidance only and does not constitute legal advice. If you require tailored legal advice, please contact us to discuss your specific circumstances.

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