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  • William Kanaan

Privilege may be waived if material is shown to an opponent in litigation

During a trial of a possession claim, the claimant wanted to cross-examine the first defendant on their draft witness statement (Statement). The defendant asserted that the document was privileged but the claimant argued that privilege had been waived because the defendants' counsel (DC) had shown the document to the claimant's counsel (CC) at a previous hearing, indicating that it was to be shown to the court, and CC had taken a copy on his phone. CC made a witness statement stating this. DC indicated in emails that she had no such recollection.

The court found that the act of deliberately showing the Statement to opposing counsel was enough to waive privilege and it did not matter whether the photographing was authorised. The Statement had not itself been deployed in court although the nature of the defence was deployed. Accordingly, if this was a privileged document, then privilege was waived by the deliberate showing of the Statement by DC to CC. The Statement was in the trial bundle and so admissible in evidence under paragraph 27.2 of PD 32, but in any event, there would be nothing to prevent the claimant from cross-examining on the Statement since privilege in it had been waived.


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