Alstom Power v Yokogawa Australia Pty Ltd (No 5) - [2010] SASC 267

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ALSTOM POWER v YOKOGAWA AUSTRALIA PTY LTD (NO 5)
[2010] SASC 267
Reasons for Ruling of The Honourable Justice Bleby
26 August 2010
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - LEGAL PROFESSIONAL PRIVILEGE
Defendants sought production of the whole of partially redacted documents originally provided by plaintiff pursuant to r 38.01A of the Supreme Court Civil Rules 1987 - plaintiff claimed redacted part of documents subject to legal professional privilege - previous assertion of legal professional privilege in respect of the whole of the documents - whether having supplied unredacted portion of documents plaintiff waived privilege in respect of whole document.
Held: documents sought by defendants privileged at common law - plaintiff had claimed privilege in respect of documents - no express waiver of privilege in respect of redacted material - no inconsistency or unfairness in maintaining claim to privilege - no implied waiver of privilege in respect of redacted part of documents - redacted part of documents still subject to legal professional privilege.
Supreme Court Rules 1987 (SA) r 38.01A, referred to.
Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475; Mann v Carnell (1999) 201 CLR 1, applied.
Great Atlantic Insurance Co v Home Insuranace Co [1981] 1 WLR 529, distinguished.
Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333; Osland v Secretary, Department of Justice (2008) 234 CLR 275, discussed.
Yokogawa Australia Pty Ltd v Alstom Power Ltd [2009] SASC 377; Goldberg v Ng (1995) 185 CLR 83; GE Capital Corporate Finance Group Ltd v Anchors Trust Co [1995] 1 WLR 172; MAM Mortgages Ltd (In Liquidation) v Cameron Bros (No 2) [2001] 1 Qd R 46, considered.

ALSTOM POWER v YOKOGAWA AUSTRALIA PTY LTD (NO 5)
[2010] SASC 267
Civil
Reasons for ruling
BLEBY J
Introduction

One of the less desirable side effects of ordering that the witnesses’ evidence in chief in this case be reduced to writing is that it has led to a series of tactical posturing and costly, unnecessary and time wasting manoeuvrings by lawyers.
This was evident first by the generation of pages of objections to particular passages in the statements. By the defendants alone, there were some 1200 – 1300 objections, many of which, on analysis, were the result of poor drafting of their statements or were objections of little or no substance. Most could have been resolved by sensible discussions between counsel. They took days to resolve in respect of one witness alone, resulting in that witness giving several days of evidence-in-chief in addition to his written statement.
It was evident again in the defendants apparently poring over the statements of the plaintiff’s witnesses to try to find a waiver of without prejudice privilege claimed by the plaintiff and upheld by the Full Court[1] in respect of documents concerning the settlement of a previous action between the plaintiff and a third party. The Full Court left the door open for the defendants to apply to the trial Judge for a fresh application for disclosure of documents if the plaintiff departed from its existing pleading relating to the settlement.[2] No relevant amendment to the pleading had been made. The defendants nevertheless brought such an application based on the written statement of one of the plaintiff’s witnesses. I dismissed the application as having no substance at all
[1] Yokogawa Australia Pty Ltd v Alstom Power Ltd [2009] SASC 377.
[2] Ibid [108]-[109].
The third manifestation of undesirable side effects has been a series of manoeuvrings designed to elicit information from each others’ briefs in the hope, not necessarily the expectation, of finding something which may be of use in the cross-examination of the witnesses concerned.
It began with a proper application in respect of the witness Mr Hodge, the first witness called for the plaintiff. His statement had been supplied relatively late but he is obviously a key witness for the plaintiff. Mr Hodge was a combustion engineer in the employment of the plaintiff at the material time. Although a witness of fact, he is clearly also put forward by the plaintiff as an expert qualified to express certain opinions as to the reasons for certain alleged shortcomings in the performance of the power station the refurbishment of which gives rise to this action. Mr Hodge has also expressed opinions as to the causes of delay in the refurbishment by the plaintiff of the power station. The defendants justifiably complained that the requirements of r 38.01 and r 38.01A of the Supreme Court Rules 1987 (SA) relating to expert reports had not been complied with in the case of Mr Hodge. Detailed requests were made for the production by the plaintiff of a substantial amount of information referred to in r 38.01A(4) in connection with the preparation of Mr Hodge’s statement. R 38.01A(4) provides:
(4) Upon a request to that effect by another party a party must in relation to an expert's report delivered under Rule 38.01:
(a)    provide to the other party a list of all documents which have been referred to, or prepared by or at the direction of, the expert in the course of preparing the report;
(b)    provide to the other party copies of any of the documents referred to in a list supplied under (a);
(c)    disclose to the other party details of any fee, disbursement or benefit received, or receivable, by the expert, or any one on his or her behalf, for the preparation of the report and for services provided, or to be provided, by the expert, or by anyone on his or her behalf, in connection with the expert giving expert evidence for the party in the action;
(d)    provide a list of all conversations in which the expert has taken part with any party, any legal representative of a party or any other expert consulted in relation to the matter relevant to the opinions expressed in the report stating when and with whom each such conversation occurred and the topics discussed;
(e)     provide copies of all notes made by or on behalf of the party, or by or on behalf of the expert, concerning any of the conversations referred to in a list provided under (d).
With the aid of some intimation from me as to what I considered was required in particular situations, common sense prevailed and relevant information was provided by the plaintiff in respect of the statements of Mr Hodge. However, there are ongoing issues as to whether that disclosure is complete. I am not suggesting that the application in respect of Mr Hodge was made other than properly in the circumstances.
However, by a series of correspondence over a period of four days the plaintiff then sought a similar range of information in respect of seven of the defendants’ intended witnesses, alleging that their statements were expert reports for the purposes of r 38. The defendants responded over an overlapping period of five days with similar requests in respect of another 13 of the plaintiff’s intended witnesses, all now said to be expert witnesses.
From the nature of the evidence heard so far it would appear that at least one of the defendants’ witnesses previously employed by the defendants, Mr Ironside, might fall into the category of an expert, in which case such a request might be justified, although I have not heard argument in relation to Mr Ironside and may not have to. Other than the two witnesses the subject of the call for documents on which I am now required to rule, I have formed no opinion as to whether their statements are expert reports. However, I would be most surprised if 13 of the plaintiff’s intended 17 witnesses whose statements have been provided (excluding Mr Hodge) and six of the defendants’ intended nine witnesses whose statements have been provided (excluding Mr Ironside) have suddenly become experts for the purposes of r 38.
The statements of evidence of two witnesses for the plaintiff were the subject of a notice by the defendant to produce documents said to be required for production under r 38.01(4). However, at the hearing of the plaintiff’s objection to produce the documents Mr Rushton, senior counsel for the defendants, properly conceded that the written statements were not expert reports for the purposes of r 38.
Nevertheless, some of the tactical manoeuvrings which have taken place since this trial began have assumed an air of unreality which does no credit to either party or to their legal advisers. Modern commercial litigation is not a tactical game to be played at the expense of reluctant clients. It requires sensible and concerted application to the identification and resolution of the real issues in the case where genuine disagreement exists and where compromise cannot reasonably be achieved. Truth will seldom be revealed by pointless tactical battles. It will often be revealed by careful examination of the objective evidence rather than by its interpretation by those who might seek to justify their own position, whether witnesses or not.
The objection to be ruled on
What is before me are two notices to produce documents, served by the defendants on the plaintiff, being documents mentioned in r 38.01A(4) relating to the witness statements of two of the plaintiff’s intended witnesses, Mr Christie and Mr Orr. As mentioned above, it was properly conceded that the statements were not expert reports for the purposes of r 38.01A.
Neither witness has yet given evidence. The defendants’ request to supply the r 38.01A documents had been made by letters dated 16 April 2010 (in respect of Mr Christie) and 19 April 2010 (in respect of Mr Orr). Each letter referred to and relied on particular numbered paragraphs of the respective statements where it was said that the witnesses had expressed an opinion.
By their responses by letter dated 21 June 2010 (in respect of Mr Christie) and 29 June 2010 (in respect of Mr Orr) the plaintiff denied that the statements were expert reports and that the identified paragraphs constituted expert opinion. Nevertheless, they identified one paragraph in respect of Mr Christie and two paragraphs in respect of Mr Orr where they acknowledged, that the relevant paragraph “may be said to contain expert opinion. Accordingly, to avoid dispute, we enclose the following in answer to your specific request in relation to that paragraph”. The documents were then described, and redacted copies of the relevant documents were attached revealing only the material relevant to the identified paragraphs of the statements.
There can be no doubt that the plaintiff had previously asserted legal professional privilege in respect of the whole of the documents identified in the plaintiff’s letters. Although not specifically identified in the lists of documents filed by the plaintiff, privilege had been claimed in respect of “statements, notes, drafts, reports, other documents and parts of documents prepared by or for the plaintiff and its legal advisers for the purpose of obtaining, giving and recording legal advice for the purpose of these proceedings and prior proceedings between the plaintiff and other parties on the grounds of legal professional privilege”. By its solicitors’ letters the plaintiff unconditionally waived privilege in respect of the unredacted portions of the documents produced while purporting to maintain privilege in respect of the balance.
The defendants now argue that, having supplied the unredacted portion of the documents, the plaintiff has waived legal professional privilege in respect of the whole of each document concerned, and that the complete documents should now be produced. The plaintiff objects to their production.
The relevant principles
The starting point for the identification of the relevant principles relating to waiver of legal professional privilege is the decision of the High Court in Attorney-General for the Northern Territory v Maurice.[3] In that case it was argued that by lodging and distributing a claims book with the Aboriginal Land Commissioner in which particulars of their claim as traditional owners of certain land were set out, a group of Aboriginal people claiming to be traditional owners of land had waived their legal professional privilege in relation to source materials used in preparing the book. Incidental reference was made in the proceedings to the contents of the book. The Court unanimously held that the privilege had not been waived. In the case before me there has been no express waiver of the privilege in respect of the redacted material. There was such waiver in respect of the unredacted material. At best, it can only be asserted that there was an implied waiver in respect of the redacted material by the production of the unredacted material.
[3] (1986) 161 CLR 475.
In Maurice’s Case Gibbs CJ expressed the relevant principle in the following terms:[4]
The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production. Thus it has been held that the privilege in respect of a document is not waived by the mere reference to that document in pleadings (Roberts v. Oppenheim; Buttes Oil Co. v Hammer [No. 3]) or in an affidavit (Lyell v. Kennedy; Infields, Ltd. v. P. Rosen & Son; Tate & Lyle “International Co. Ltd. v. Government Trading Corporation”, The Times, 24 October 1984), although the position will be different if the document is reproduced in full in the pleading or affidavit: Buttes Oil Co. v. Hammer [No. 3]. These cases may be explained by saying that it is not unfair or misleading to refer to a document in a pleading or affidavit which is not put into evidence but that if the document is set out in full the privilege is waived. A fortiori, of course, privilege in respect of materials used in drawing a pleading or an affidavit and not referred to therein, would not lose their privilege because they had been used in that way.
[Footnotes omitted]
[4] Ibid 481.
The Chief Justice referred to Great Atlantic Insurance Co v Home Insurance Co,[5] a case where a party disclosed a document which contained part only of a memorandum which dealt with a single subject matter, and whose counsel then read the document to the Judge in the course of opening the case. It was held by the Court of Appeal that privilege was thereby waived as to the whole memorandum. I will return to a consideration of that case. Gibbs CJ held that the same test used in that case must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. The result in both cases depended on the use that the party claiming the privilege had made of the material disclosed. Gibbs CJ continued:[6]
[T]he question is whether the disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material, and although the question whether the material that has been disclosed has been used in evidence is relevant, it is not decisive.
[Emphasis added]
[5] [1981] 1 WLR 529, 538-539; [1981] 2 All ER 485, 492.
[6] (1986) 161 CLR 475, 483.
In their joint judgment Mason and Brennan JJ said:[7]
[T]he implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver. On this principle, an American court refused to imply a waiver when the person entitled to the privilege, who had been subjected by court order to an exceptional accelerated discovery process, accidentally disclosed some protected communications: Transamerica Computer Co. Inc. v I.B.M. Corp. Likewise, a waiver was not implied beyond actually disclosed material when the person entitled to the privilege, in a spirit of co-operation, disclosed some confidential communications to opposing counsel, not to the court, and the partial disclosure did not prejudice the opposing litigant: Weil v. Investment/Indicators, Research & Management. As the court in Champion International Corp. v. International Paper Co. asked rhetorically, “Can the disclosure of a very slight amount of privileged material, produced in a spirit of openness in discovery, be the basis for a waiver of a large amount of other privileged material?”
[Footnotes omitted]
[7] Ibid 488.
Deane J noted[8] that if the claim book had actually been used as evidence on a prior hearing, a real question would have arisen about whether, by so using it, the aboriginal claimants had waived their right to assert legal professional privilege in the source materials. He said:[9]
Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege.
It is to be noted that the emphasis placed by Deane J, and indeed by the other Judges, was on the use that is made of the material and whether that use gives rise to unfairness.
[8] Ibid 492.
[9] Ibid 492-493.
Finally, Dawson J noted:[10]
This is a difficult area of the law, but it is clear enough that an implied waiver may be required by fairness notwithstanding that it was not intended. It would not be fair to allow privilege to be waived with respect to a portion of a document or a conversation without requiring disclosure of the rest of it, at least if the document or conversation dealt with the one subject-matter: see Burnell v. British Transport Commission and Great Atlantic Insurance Co. v. Home Insurance Co. So much may be obvious, but legal professional privilege is concerned with protecting the confidentiality of a relationship and if that confidentiality is abandoned by a particular disclosure it may be necessary in fairness, whether further disclosure was intended or not, to require disclosure extending beyond the particular communication: see Wigmore on Evidence (McNaughton rev. 1961), vol. VIII, par. 2327. The cases are not entirely consistent and perhaps what is fair by way of disclosure must ultimately depend upon the relevant circumstances.
[Footnotes omitted]
[10] Ibid 497-498.
In Mann v Carnell[11] the ACT government had compromised an action brought by a member of the public. The litigant complained to a member of the Legislative Assembly of the ACT about the conduct of the government in the litigation. The Chief Minister sent to the member, in confidence, copies of documents containing legal advice about the litigation that the government had received. Those documents were privileged. The member returned the copies to the Chief Minister but retained the covering letter, a copy of which he sent to the litigant. The litigant sought discovery of the legal advice. The Court held, based on the earlier decision of Goldberg v Ng,[12] that voluntary disclosure to a third party of a privileged document does not necessarily waive privilege.[13] In their joint judgment Gleeson CJ, Gaudron, Gummow and Callinan JJ said:[14]
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”.
[Footnote omitted]
Of the principles to be applied their Honours said:[15]
It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. ….
What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
[Footnote omitted]
Their honours later reiterated[16] that depending on the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is inconsistency in maintaining the privilege.
[11] [1999] HCA 66; (1999) 201 CLR 1.
[12] (1995) 185 CLR 83.
[13] [1999] HCA 66, [30]; (1999) 201 CLR 1, 14.
[14] Ibid [29]; 13.
[15] Ibid [28]-[29]; 13.
[16] Ibid [34]; 15.

Finally, in Osland v Secretary, Department of Justice[17] the appellant had been convicted and sentenced to imprisonment for murder. Following unsuccessful appeals, she petitioned the Governor of Victoria for mercy. The State Attorney-General issued a press release stating that he had obtained a joint advice from three Queen’s Counsel which recommended that the petition be denied. The appellant sought access to the advice on the ground that the Attorney-General, by his press release, had waived privilege in the advice. The court unanimously held that privilege in the advice had not been waived. The plurality[18] accepted that the principles to be applied were those stated in the joint reasons of the court in Mann v Carnell.[19] Their Honours said:[20]
Waiver of the kind presently in question is sometimes described as implied waiver, and sometimes as waiver "imputed by operation of law". It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances.
[Footnote omitted]
Later in their judgment[21] their Honours said that whether limited disclosure of a document was inconsistent with maintaining confidentiality of the document would depend on the circumstances of the case, and that questions of waiver were matters of fact and degree.
[17] [2008] HCA 37; (2008) 234 CLR 275.
[18] Gleeson CJ, Gummow, Heydon and Kiefel JJ.
[19] [1999] HCA 66; (1999) 201 CLR 1.
[20] [2008] HCA 37, [45]; (2008) 234 CLR 275, 296-297.
[21] Ibid [49]; 298 – 299.
In that case the appellant had claimed that the insistence on the privilege was unwarranted and unfair in the circumstances. In his judgment, Kirby J said:[22]
Each of these words is important. "Unwarranted" signifies a legal conclusion, namely that enough has been disclosed of the subject communication to evince conduct "inconsistent with the maintenance of the confidentiality which the privilege is intended to protect". Effectively, the client cannot have it both ways. It cannot provide part of the confidential information (inferentially that part which favours its position) to others, whilst demanding that everything else (which may reveal that position in a different light) be treated as confidential. The use of the word "unfair" does not mean that all that the decision-maker has to do is to weigh up the respective "fairness" of the positions of the client and its opponent and decide the question of waiver according to such generalised considerations. But considerations of "fairness" may be relevant to whether there is an inconsistency between the conduct said to amount to waiver and the maintenance of the privilege.
[Footnotes omitted]
[22] Ibid [92]; 310.
Mr Rushton relied on the decision on the Court of Appeal in Great Atlantic Insurance Co v Home Insurance Co,[23] to which reference has already been made. In that case the whole of the document was held to be privileged, but the plaintiff’s solicitors had not claimed privilege or, in disclosing the passages subsequently read in open court and relied on by the plaintiff’s counsel, had failed to make clear that it was claiming privilege in respect of the additional matter contained in the document. The disclosed part of the document was read by and relied on at the trial by the plaintiff’s counsel. It was in those circumstances that Templeman LJ said:[24]
In my judgment, severance would be possible if the memorandum dealt with entirely different subject matters or different incidents and could in effect be divided into two separate memoranda each dealing with a separate subject matter. ….
[O]nce it is decided that the memorandum deals with only one subject matter, it seems to me that it might be or appear dangerous or misleading to allow the plaintiffs to disclose part of the memorandum and to assert privilege over the remainder. ….
In my judgment, the simplest, safest and most straightforward rule is that if a document is privileged then privilege must be asserted, if at all, to the whole document unless the document deals with separate subject matters so that the document can in effect be divided into two separate and distinct documents each of which is complete.
There was no reference by the Court of Appeal to principles of inconsistency in the plaintiff’s conduct based on fairness.
[23] [1981] 1 WLR 529; [1981] 2 All ER 485.
[24] Ibid 536; 490.
Great Atlantic Insurance Co v Home Insurance Co has not received universal approbation. It was distinguished by the Court of Appeal in GE Capital Corporate Finance Group Ltd v Anchors Trust Co,[25] the Court of Appeal pointing out that it related not to discovery but to the fact that counsel had read from and relied on the document in the course of his opening. Hoffmann LJ (as he then was), speaking on behalf of the Court of Appeal said:[26]
The test for whether part can be withheld on grounds of privilege is simply whether that part is privileged. There is no additional requirement that the part must deal with an entirely different subject matter from the rest.
[25] [1995] 1 WLR 172; [1995] 2 All ER 993.
[26] Ibid 175; 997.
The rule stated by Templeman LJ in Great Atlantic Insurance Co was considered to be “too inflexible” by Wilson J in MAM Mortgages Ltd (In liquidation) v Cameron Bros (No 2)[27]. The Court, with respect correctly, relied on the fairness test enunciated by the High Court.
[27] [2001] 1 Qd R 46, 49.
Mr Rushton also relied on the following paragraph in the judgment of Tobias JA, with whom Allsop P and Hodgson JA agreed, in Bailey v Director-General, Department of Land and Water Conservation:[28]
In my opinion Great Atlantic Co stands only for the proposition that where the whole of a document is a privileged communication between legal adviser and client, the party entitled to claim that privilege cannot waive the privilege as to part of the communication but claim it with respect to the remainder if to do so would result in unfairness. Either privilege is claimed with respect to the whole or waived as to the whole. The only exception to this would be where the communication dealt with two entirely different subject matters in respect of which privilege was claimed for the one that was relevant to the issues at hand and waived for the other which was not.
[28] [2009] NSWCA 100 [132]; (2009) 74 NSWLR 333, 362.
The statement that either privilege is claimed with respect to the whole or waived as to the whole document cannot be read in isolation. In my opinion it can only apply where there is inconsistency or unfairness in the sense discussed by the High Court in waiving privilege as to only part of the document. It is not merely a matter of ascertaining whether the document concerned deals with separate subject matters.
The application of the principles
The documents sought by the defendants to be produced were privileged at common law. The plaintiff had claimed privilege in respect of those documents.

R 38.01A qualifies the common law by removing that privilege in respect of documents relating to the preparation of expert reports. The witness statements concerned were not expert reports. There was no obligation on the part of the plaintiff to produce the material. The plaintiff chose to produce certain material relevant to particular portions of the witness statements with the balance of the material in the documents concerned being redacted. There was no express waiver of privilege in respect of that balance.
The unredacted material was produced unconditionally. As the letters accompanying the redacted material suggest, this was done in the hope that it would resolve any further dispute as to the plaintiff’s obligations under r 38.01A(4) in respect of each of those witnesses, and in order to avoid an unprofitable and possibly expensive argument as to whether the witness statements concerned constituted expert reports for the purposes of r 38.01A. The plaintiff has neither sought nor derived any advantage by the partial waiver. The disclosure has not prejudiced the defendants in the presentation or prosecution of their case. There has been no unfairness to the defendants in the partial waiver by the plaintiff. The plaintiff took a pragmatic course in an attempt to resolve an interlocutory dispute based on a demand by the defendants which they now concede had no substance or justification. There is no inconsistency or unfairness on the part of the plaintiff in making the disclosure in the circumstances I have described and in maintaining its claim to privilege in respect of the redacted parts.
Had the plaintiff sought to introduce the unredacted parts of the documents in the proceedings in order to derive some form of forensic advantage in respect of those particular witnesses, the position might have been quite different. However, there is no evidence of any such use or attempted use by the plaintiff.
There can be no implied waiver of privilege in respect of the redacted portions of the documents in present circumstances.
The defendants also sought to rely on what was alleged to be an inconsistency on the part of the plaintiff in asserting that, if the defendants were to make available r 38.01A(4) material concerning certain identified paragraphs of some of the defendants’ witness statements, the defendants would waive privilege in respect of the balance of the material not made available. However, a proper analysis of the correspondence reveals that that is not the case.
It will be remembered that the plaintiff’s solicitors had requested the production of r 38.01A(4) documents in respect of seven of the defendants’ intended witnesses. In respect of six of them the defendants took the view that the statements did not constitute expert reports. In their letter of 30 June 2010 to the plaintiff’s solicitors their solicitors said:
Nevertheless, to avoid any unnecessary dispute as to this issue and, strictly upon the understanding that no waiver of privilege arises, we are prepared to provide material in relation to certain identified paragraphs.
In the response of the plaintiff’s solicitors by letter dated 5 July 2010 the plaintiff’s solicitors disagreed with the view that none of the identified witnesses gave expert opinion within the meaning of r 38. The defendants were asked to identify the paragraphs or issues which the defendants said might contain expert opinion. The letter concluded:
We also do not agree with your proposal that no privilege is to be waived. On our view, the only way to avoid a dispute is for any un-redacted portions to be provided unconditionally.
In responding in that manner it seems to me that the plaintiff was not asserting that, if certain un-redacted material were provided by the defendants, there would be a waiver of privilege in respect of the redacted material. The plaintiff’s solicitors had interpreted the defendant’s offer to provide the material as being upon the understanding that there would be no waiver of privilege in respect of the un-redacted material provided. It was not an unreasonable response to assert that privilege would be waived in respect of that material. There is no substance in the defendants’ supplementary argument.
Conclusion
The plaintiff’s objection to the production of the material sought by the defendants’ notices to produce filed on 13 August 2010 in respect of the witness statements of Mr Christie and Mr Orr is upheld.