Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd (Subject to a Deed of Company Arrangement) [No 3]

[2017] WASC 51

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   LANCO RESOURCES AUSTRALIA PTY LTD -v- GRIFFIN ENERGY GROUP PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) [No 3] [2017] WASC 51

CORAM:   KENNETH MARTIN J

HEARD:   10 FEBRUARY 2017 & ON THE PAPERS BY WRITTEN SUBMISSIONS OF 15 & 16 FEBRUARY 2017

DELIVERED          :   28 FEBRUARY 2017

FILE NO/S:   CIV 1298 of 2015

BETWEEN:   LANCO RESOURCES AUSTRALIA PTY LTD

First Plaintiff

LANCO INTERNATIONAL PTE LTD
Second Plaintiff

LANCO INFRATECH LTD
Third Plaintiff

AND

GRIFFIN ENERGY GROUP PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
First Defendant

CARPENTER MINE MANAGEMENT HOLDINGS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
Second Defendant

BRIAN McMASTER
Third Defendant

CLIFFORD ROCKE
Fourth Defendant

SCOTT KERSHAW
Fifth Defendant

MARK MENTHA
Sixth Defendant

KORDAMENTHA PTY LTD
Seventh Defendant

(BY ORIGINAL ACTION)

GRIFFIN ENERGY GROUP PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
First Plaintiff by counterclaim

CARPENTER MINE MANAGEMENT HOLDINGS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
Second Plaintiff by counterclaim

BRIAN McMASTER
Third Plaintiff by counterclaim

CLIFFORD ROCKE
Fourth Plaintiff by counterclaim

SCOTT KERSHAW
Fifth Plaintiff by counterclaim

MARK MENTHA
Sixth Plaintiff by counterclaim

KORDAMENTHA PTY LTD
Seventh Plaintiff by counterclaim

AND

LANCO RESOURCES AUSTRALIA PTY LTD
First Defendant by counterclaim

LANCO INFRATECH LTD
Second Defendant by counterclaim

(BY COUNTERCLAIM)
 

Catchwords:

Practice and procedure - Pre-trial document subpoena to lawyers - Legal professional privilege asserted by clients - Assertion of implied waiver - Joint privilege - Conduct of former administrator/defendant by passages in witness statement in this action

Legislation:

Nil

Result:

Inspection of documents produced is refused

Category:    B

Representation:

Original Action

Original Action

Counsel:

First Plaintiff                :     Dr A S Bell SC & Mr M Izzo

Second Plaintiff            :     Dr A S Bell SC & Mr M Izzo

Third Plaintiff              :     Dr A S Bell SC & Mr M Izzo

First Defendant            :     Dr R C A Higgins

Second Defendant        :     Dr R C A Higgins

Third Defendant           :     Mr M Elliott

Fourth Defendant         :     Dr R C A Higgins

Fifth Defendant            :     Dr R C A Higgins

Sixth Defendant           :     Mr M Elliott

Seventh Defendant       :     Mr M Elliott

Solicitors:

First Plaintiff                :     Allen & Overy

Second Plaintiff            :     Allen & Overy

Third Plaintiff              :     Allen & Overy

First Defendant            :     Ashurst Australia

Second Defendant        :     Ashurst Australia

Third Defendant           :     Colin Biggers & Paisley (Sydney)

Fourth Defendant         :     Ashurst Australia

Fifth Defendant            :     Ashurst Australia

Sixth Defendant           :     Colin Biggers & Paisley (Sydney)

Seventh Defendant       :     Colin Biggers & Paisley (Sydney)

Counterclaim

Counsel:

First Plaintiff by counterclaim          :    Dr R C A Higgins

Second Plaintiff by counterclaim      :    Dr R C A Higgins

Third Plaintiff by counterclaim         :    Mr M Elliott

Fourth Plaintiff by counterclaim       :    Dr R C A Higgins

Fifth Plaintiff by counterclaim          :    Dr R C A Higgins

Sixth Plaintiff by counterclaim         :    Mr M Elliott

Seventh Plaintiff by counterclaim     :    Mr M Elliott

First Defendant by counterclaim       :    Dr A S Bell SC & Mr M Izzo

Second Defendant by counterclaim    :    Dr A S Bell SC & Mr M Izzo

Solicitors:

First Plaintiff by counterclaim          :    Ashurst Australia

Second Plaintiff by counterclaim      :    Ashurst Australia

Third Plaintiff by counterclaim         :    Colin Biggers & Paisley (Sydney)

Fourth Plaintiff by counterclaim       :    Ashurst Australia

Fifth Plaintiff by counterclaim          :    Ashurst Australia

Sixth Plaintiff by counterclaim         :    Colin Biggers & Paisley (Sydney)

Seventh Plaintiff by counterclaim     :    Colin Biggers & Paisley (Sydney)

First Defendant by counterclaim       :    Allen & Overy

Second Defendant by counterclaim    :    Allen & Overy

Counterclaim

Counsel:

First Plaintiff by counterclaim     :        Dr R C A Higgins

Second Plaintiff by counterclaim   :        Dr R C A Higgins

Third Plaintiff by counterclaim     :        Mr M Elliott

Fourth Plaintiff by counterclaim         :        Dr R C A Higgins

Fifth Plaintiff by counterclaim     :        Dr R C A Higgins

Sixth Plaintiff by counterclaim     :        Mr M Elliott

Seventh Plaintiff by counterclaim :        Mr M Elliott

First Defendant by counterclaim         :        Dr A S Bell SC & Mr M Izzo

Second Defendant by counterclaim        :        Dr A S Bell SC & Mr M Izzo

Solicitors:

First Plaintiff by counterclaim     :        Ashurst Australia

Second Plaintiff by counterclaim   :        Ashurst Australia

Third Plaintiff by counterclaim     :        Colin Biggers & Paisley (Sydney)

Fourth Plaintiff by counterclaim         :        Ashurst Australia

Fifth Plaintiff by counterclaim     :        Ashurst Australia

Sixth Plaintiff by counterclaim     :        Colin Biggers & Paisley (Sydney)

Seventh Plaintiff by counterclaim :        Colin Biggers & Paisley (Sydney)

First Defendant by counterclaim         :        Allen & Overy

Second Defendant by counterclaim        :        Allen & Overy

Case(s) referred to in judgment(s):

DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 4] [2012] WASC 157

KENNETH MARTIN J: 

Introduction:  Baker McKenzie document subpoena ‑ objections to inspection by defendants on grounds of legal professional privilege

1. This is the residual issue number 1, deferred by reason of the parties' filing of further written submissions on late emerging issues.  Essentially, I am asked to determine whether a series of documents in the nature of either requests for, or the provision of, advice by Baker McKenzie Lawyers (the subject of a list provided in answer to the subpoena as a matter of compromise pending determination of the following arguments) may be inspected, or whether, as the defendants assert, all these documents are the subject of their legal professional privilege and so are not open for inspection.

2. The parties had conferred about this disputed inspection of Baker McKenzie subpoenaed documents issue.  Essentially, only a list of documents has been provided so far by Baker McKenzie in answer to the plaintiffs' subpoena - by agreement of the parties. 

3. There is agreement between the parties that I, as case manager and putative trial judge, should determine the disputed inspection and privilege issues arising on the plaintiffs' application to inspect which essentially raises two main questions:

   (a)whether the legal advice provided by Baker McKenzie as lawyers had been solely provided to the entity 'The Griffin Coal Mining Company Pty Ltd' (GCMC).  If so, a consequence was argued by the plaintiffs to be that GCMC's parent corporations (ie, Griffin Energy Group Pty Ltd (GEG) and Carpenter Mine Management Holdings Pty Ltd (CMMH)), corporations who had essentially sold their shares in GCMC and CMM to the Lanco entities, fall (as non‑clients) outside the scope of the legal professional privilege attaching to legal advice related documents to be produced in answer to this subpoena by Baker McKenzie; and

   (b)issues of expressed, imputed or implied waiver of privilege, arising out of the conduct in this litigation by the third defendant, Mr Brian McMaster, who had formerly been one of the administrators of the first defendant corporation, GEG (that corporation becoming the subject of a deed of company arrangement of 28 February 2011) and also an administrator of the second defendant, CMMH. 

   In relation to the Baker McKenzie documents sought on this subpoena, the plaintiffs' submissions towards showing an act of implied waiver, binding all those entitled to privilege, was directed at the exchanged witness statement of Mr McMaster of 17 August 2016 (filed in accordance with trial directions I issued earlier in this action, concerning the exchange of witness statements in preparation for trial). 

   In particular, attention as regards waiver is given to par 110 of Mr McMaster's witness statement (not yet read at the trial, but exchanged and foreshadowed as his evidence‑in‑chief), where Mr McMaster relates the following:

   On 2 October 2010, Ms Cowan (who, I interpolate, is Mr McMaster's subordinate employee at KordaMentha) sent me a memorandum providing an overview of the data room for the final bid stage [GEG.001.001.0984].  I decided to seek legal advice and asked Ms Cowan to send the two JBC reports referred to in paragraph 76 above to Hal Lloyd, a partner in Baker & McKenzie.

4. But a second issue arising concerns whether such foreshadowed evidence, as exchanged before trial, in context by Mr McMaster as third defendant is capable of constituting an implied, inferred or imputed waiver by all parties of legal professional privilege attaching to the Baker McKenzie legal advice, asked for or given in or around October 2010. 

Background

1. I should say by way of clarification that the document subpoena issued to Baker McKenzie was issued by the solicitors for the plaintiffs, Allen & Overy, on 30 November 2016.  The documents which were sought at the early return of that subpoena before trial were:

   Any document that discusses, evidences or directly concerns any:

   (a)request for legal advice;

   (b)provision of legal advice; or

   (c)legal advice,

   in relation to whether or not any reports, material or conclusions generated by JBC should be disclosed to potential bidders for Griffin Coal.

2. I point out as well that the document subpoena as issued by the plaintiffs to Baker McKenzie defined Griffin Coal as referring to each of GCMC and to CMMH jointly and separately.  Further, the term 'JBC' is defined as referring to each of Jon Barber Consulting Pty Ltd, Jon Barber Mining Consultants Pty Ltd, and any employees or agents thereof, jointly and separately. 

Materials

1. Extensive written submissions were exchanged in the lead-up to the initial hearing of the application on 10 February 2017, with affidavit evidence relied upon on each side, as well as Mr McMaster's exchanged witness statement. 

2. I hold the plaintiffs' (the Lanco parties) written submissions of 1 February 2017 opposing the defendants' claim of legal professional privilege asserted over documents listed to be produced in answer by Baker McKenzie in response to the plaintiffs' subpoena. 

3. Those submissions of the plaintiffs were responded to by the written outline of submissions of the first, second, fourth and fifth defendants (the Griffin parties) of 8 February 2017.  In the first place, the Griffin defendants assert legal professional privilege as a bar to the production and inspection of any Baker McKenzie advice related documents ‑ essentially contending that all relevant Griffin defendants were within, held and were protected by the ambit of what was a joint interest legal professional privilege immunity ‑ against permitting any inspection of the Baker McKenzie advice documents produced by that firm in answer to the subpoena.  Secondly, they refute all suggestions of a possible implied waiver of the privilege arising from the conduct of Mr McMaster from the content of his exchanged witness statement.

Arguments:  waiver of privilege

1. At the hearing on 10 February 2017, the first main issue to be addressed presented as the participant range of legal professional privilege between defendants.  But this issue swiftly evaporated via a late arriving affidavit of Timothy Oliver West (Mr West's third affidavit) of 9 February 2017 and its attachments as I explain.

2. Attached as TOW10 was Baker McKenzie's initial communication of 4 January 2010 to Messrs McMaster, Clifford Rocke, Mark Mentha and Scott Kershaw.  In that communication under a heading Scope of Work (at page 6 of Mr West's affidavit) it had been noted at that time:

   In this assignment Baker & McKenzie will provide legal services relating to the voluntary administration of The Griffin Coal Mining Company Pty Limited (administrators appointed).

3. But matters did not rest there.  Mr West's next attachment, TOW11, revealed a subsequent Baker McKenzie retainer communication of 30 April 2010.  This took matters further. 

4. The later communication referred to the 4 January 2010 retainer communication and augmented it, adding that Baker McKenzie were also retained to provide advice to all the administrators of the Griffin corporations.

5. The relatively late emergence of that subsequent TOW11 Baker McKenzie communication essentially resolved any doubt over the participant client scope of that firm's legal retainer.  Hence all arguments on 10 February proceeded on the basis that the only residual issue to be determined was an implied or inferred waiver of privilege, essentially tied to the exchanged witness statement (particularly under paragraph 110) by Mr McMaster - who is, of course, the third defendant in his own right in this litigation - in which he is separately represented (with the sixth defendant, Mr Mentha and the seventh defendant, KordaMentha Pty Ltd). 

6. Aside from Mr West's third affidavit, the other material relied upon (aside from the full content of Mr McMaster's proposed witness statement) was the affidavit of a solicitor for the plaintiff, Mr David Jenaway, of 1 February 2017.

7. The written submissions of the Griffin Corporation parties (first, second, fourth and fifth defendants) under pars 54 - 62 address a discrete issue concerning other documents sought from the Lanco parties' financial advisors in the acquisition transactions.  That was the subject of the discrete application dealt with as issue 2 in the order of proceedings on Friday, 10 February, and under my earlier reasons in Lanco [No 2]. 

8. Opposing inspection and rejecting that there was any relevant act of waiver binding them, there was a written outline of submissions provided on behalf of the third (Mr McMaster), sixth and seventh defendants of 8 February 2017 for the application under which the submissions of the Griffin defendant parties were effectively 'adopted and relied upon by the other defendants' (par 1). 

9. Counsel at the application (Mr Elliott) for the third, sixth and seventh defendants also spoke in elaboration of those submissions.  The third, sixth and seventh defendants relied upon an affidavit of Jonathan Patrick Newby, sworn 8 February 2017, responding to and opposing that application, as well as against the application for access to the documents provided in answer to subpoena by the financial advisor, namely, UBS AG (ABN 47 088 129 613) and to Macquarie Capital (Australia) Ltd (ACN 123 199 548).

10. A late emerging issue took on greater focus than perhaps initially anticipated towards the end of the hearing on the application concerning the Baker McKenzie subpoenaed documents.  This concerned whether or not in circumstances of what had now crystallized as a joint interest privilege held as between all relevant corporate defendants, Mr McMaster's conduct within this litigation, as under his witness statement filed by lawyers Messrs Colin Biggers & Paisley on 22 August 2016, was capable of constituting in its own right a waiver that could bind all the joint holders of a joint legal professional privilege.  That late submission invoked well settled principles of law, explicated in the Griffin defendants' written submissions at pars 29 and 30 by reference to footnoted authority.  The principle is there explained uncontroversially in terms:

    29.As concerns waiver of joint interest privilege, all those to whom it belongs must concur in waiving it (fn 34, referring to Australand Corporation Qld Pty Ltd v Johnson [2006] QSC 418 (PD McMurdo J); R v Financial Services Authority [2012] 1 All ER 1238.

11. [And as regards that established principle, see as well in this State to like effect Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 4] [2012] WASC 157 [16], [24] (Martin CJ).]

12. The submission is, in effect, as to the inability of Mr McMaster by his as yet unread (but exchanged) witness statement, to effectively waive for all holders what is the more widely held joint privilege - so as to bind all other defendants, as joint holders of a joint interest privilege in the Baker McKenzie legal advice documents.  Since this issue only fell into sharp focus at the end of verbal arguments, I allowed at the end of the hearing all parties to provide further written submissions within a brief extended time frame to clarify their positions. 

Surrounding factual content to waiver arguments

1. The parties' written submissions contained extensive authority citation which was comprehensive and helpful.  On analysis, however, the position appeared to be that there was no essential disagreement of principle about the law as between the parties, concerning the principles of legal professional privilege, joint interest privilege or common interest privilege held by extended parties, or about the legal principles underlying circumstances where that privilege could be lost either by express or implied or inferred acts of waiver. 

2. In augmentation of the waiver arguments, by reference to a passage from Mr McMaster's witness statement (which, of course, has not yet been read at trial, but has been openly exchanged), Mr Jenaway's affidavit provided some key surrounding documents.  Particularly relevant is that referred to as GEG001.001.0984, at DJA4 at page 18 of Mr Jenaway's affidavit.  This was a memo to Mr McMaster from his subordinate, Ms Cowan, of 2 October 2010 under a subject heading:

   The Griffin Coal Mining Company Pty Ltd (Administrators Appointed) Stage 2 Data Room

   Overview of the Stage 2 Data Room and outstanding questions

3. Notably, under s 5 'Mining', see the following details. 

Section		Information Source	Comments/Queries
5.  Mining    -    -   -	Feasibility Studies Geology Mine Planning	Minarco/Company	JBC Reports-Not in the data room but IB's recommend inclusion or legal advice as to whether it is not misleading or deceptive to not include it (See Annexure 3).

(I interpret 'IBs' to mean 'Investment Bankers'.)

1. DAJ5 to Mr Jenaway's affidavit at page 27 is an email from David Raftis, director of UBS Investment Bank, of Monday, 4 October 2010, to Ms Cowan.  Item 1 reads:

   1.John [sic] Barber reports: 

   Whilst these have been prepared for the sole purposes of the Perdaman contract, in a number of areas John [sic] Barber has adopted a different methodology in arriving at the Resource and Reserve numbers in the existing JORC Reports and in some cases uses more up to date drilling information than the reserve reports in the data‑room which are from 2007.  As you are aware, the John [sic] Barber methodology results in a lower Resources and Reserves total.

   Our primary concern in not disclosing this information is in relation to any potential legal liabilities that may arise.  In the event that we did elect not to provide this information, we should obtain confirmation from Corrs/BM that we are not unnecessarily exposing ourselves to the potential for future legal claims.

   In the event that we did seek to disclose these reports, we would propose to attach the covering letter provided by Minarco which, at a high level, seeks to explain the key differences in approach.

2. I have already referred to par 110 of Mr McMaster's statement.  His whole statement needs to be considered up to that point, of course, including documents that he references to see the whole picture before par 110.  Beyond that, however, there is no further reference in Mr McMaster's statement to his either receiving or reviewing any legal advice as received from Baker McKenzie as an aftermath to what he said to Ms Cowan at par 110, in relation to what he decided to do and what he says he asked Ms Cowan to do as regards sending documents to Baker McKenzie. 

1. It is open to infer, however, that Ms Cowan, as a KordaMentha subordinate to Mr McMaster, would likely have acted on an instruction of this kind and, further, that the two JBC reports (as mentioned in par 110) - and about which there may be some issue in terms of what was referred to - would in due course have been sent to Baker McKenzie for legal advice. 

2. Further, I would also infer that in due course legal advice was likely to have been received from Baker McKenzie on the issue.  I would infer even further that Mr McMaster, having decided to seek and presumably pay for legal advice and having instructed Ms Cowan to send the reports, would have, in due course, seen any advice that had emanated from his instructions and would have considered it.  Nothing, however, is said about such issues in Mr McMaster's witness statement.

3. During the course of argument Dr Bell SC for the plaintiffs handed up, without objection, an email chain of exchanges as between Mr McMaster, a Ms Binns of Baker McKenzie and Mr Hal Lloyd of Baker McKenzie of Monday, 25 October 2010.  Shortly after 8.00 am Ms Binns had sent an email on 25 October to Mr McMaster and to others in terms:

   Brian,

   How are you placed for a call this afternoon? 

   I can do mid‑morning if that is your only opening, and apologise in advance if the call becomes noisy. 

   I do recall talking to Simon about this, so have some background.  We did draft a letter to the union from memory.  Do you know if that letter was sent?

4. Around five minutes after that, Mr Lloyd sent an email to Mr McMaster:

   Brian, if you want to come into our offices I can join and we can hook up Bryony from Melbourne.  I can be flexible on timing.  I also wanted to discuss the JORC Report work we have done before giving you the advice.

5. That exchange serves to further indicate (with privilege being expressly waived over this email document above by the defendants) that Mr McMaster did eventually receive some legal advice from Baker McKenzie concerning the two Reports in the aftermath of his instruction to Ms Cowan.

6. Subsequent to arguments across 10 February 2017, the further written submissions and some extra documents were provided.  These were the plaintiffs' written submissions of 15 February 2017 (and some extra documents which I allowed in) and the first, second and fourth defendants' (Griffin parties) written submissions of 15 then 16 February 2017. 

7. Having considered all that extra material, I have reached the view, as I explain below, that privilege in the Baker McKenzie legal advice documents has not been waived.

Decision:  implied waiver

1. There appears to be no issue in the present circumstances that the nature of the documents, the subject of the subpoena to Baker McKenzie, would ordinarily be the subject of the clients' legal professional privilege against inspection.  That is a jointly held privilege enjoyed by the joint client parties for whom the legal advice was obtained and provided (ie, all clients).  In dealing with waiver arguments about the argued loss of such protected rights, there is a need for some caution, lest fundamental rights of freedom be trampled over in the process.

2. The real question is whether the conduct of Mr McMaster, particularly as it culminates and manifests at par 110 of his foreshadowed witness statement in this looming trial (in which he is third defendant), is an act sufficient to constitute an imputed or implied waiver, sufficient to bind all the holders of that joint interest privilege.

3. On my assessment, a waiver has not been established by reference to the documents which relate to or concern the legal advice as provided by Baker McKenzie to the administrators whilst acting for the agents of the Griffin Corporate defendants, even assuming Mr McMaster was acting as the lead administrator back in 2010.

4. The onus of establishing an implied or inferred waiver lies upon parties seeking to displace the existence of the legal professional privilege - in this case, the plaintiffs.  The legal standard to be applied for an implied waiver is the existence of conduct, which by its nature is evaluated as being inconsistent with the maintenance of the privilege.  It is the existence of an act of inconsistency with the privilege which is assessed around considerations of overall fairness, as that principle has been explained by the High Court in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 and then by Allsop J (as his Honour then was) in the Intertan decision:  see DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499.

5. Dealing first with the question of an implied waiver by some relevantly inconsistent conduct in the witness statement of Mr McMaster, it has already been seen that at par 110 of the witness statement Mr McMaster refers to his instruction to Ms Cowan to provide two JBC reports to a partner in Baker McKenzie (Mr Hal Lloyd).  That was after Mr McMaster (in a context of the document GEG001.001.0984 to which he refers, and, indeed, the preceding documents referred to by his witness statement before par 110) that Mr McMaster had 'decided to seek legal advice'.  As already noted, the balance of Mr McMaster's statement then says nothing at all about the nature or content of any legal advice received from Baker McKenzie or his consideration of it.  Is there, in such circumstances, a waiver? 

6. During the course of arguments from counsel, I was at one point struggling to see a utility, purpose or relevance of Mr McMaster making the statement he had in par 110 - unless his purpose was to, perhaps implicitly, seek to validate his overall conduct by an imprimatur of credibility concerning a decision to seek legal advice and his instruction to Ms Cowan.  Putting to one side whether such conduct, in a context of Mr McMaster as a former administrator, could be enough to bind the other joint holders of a joint privilege in legal advice related documents sent to or emanating from Baker McKenzie concerning the two JBC reports provided to Mr Lloyd by Ms Cowan (acting on that instruction) ‑ my assessment is that, even so, the conduct of Mr McMaster concerned is not enough to constitute a waiver of his privilege over the advice.

7. At the hearing on 10 February, Mr Elliott, counsel for the third, sixth and seventh defendants, put this clarifying submission at ts 135:

   The third point I wish to make, which again touches on your Honour's question as to why the sentence is there - it's there for a particular reason that my learned friend Dr Higgins identified.  It bears on a very limited question - namely, whether Mr McMaster had knowledge of the Muja South report.  That is, the fact he decided - and all he says, he has decided to take advice about a particular matter - namely the Ewington.

   The mere fact of that might arguably bear on the question of whether [Mr McMaster] had knowledge of the Muja South report, because he doesn't say that he sought any advice in respect of that other report.  So the sentence might serve some limited purpose, but it certainly is not advanced by Mr McMaster or those representing him as being material to his state of mind as to the materiality or otherwise of the JBC Ewington report.

8. With the benefit of the receipt of the subsequent written submissions of the parties following verbal arguments on 10 February 2017, I am, in the end, now persuaded that the points advanced by Mr Elliott above do provide an alternate and credible explanation of purpose concerning what is found in Mr McMaster's statement, particularly at par 110.  There is, in fact, on my analysis, going back to pars 75 and 76 of Mr McMaster's proposed witness statement, something of a key distinction to be made as between the Muja South and the JBC Ewington reports of Mr Barber.  Both were not disclosed in the data room.  But it would appear, and this is no doubt a matter to be more fully resolved at the trial, that Mr McMaster's state of knowledge concerning those two reports, whose non-disclosure is complained about by the plaintiffs, may well have been different - with this being a live issue at the trial.

9. Given all that, I am not left sufficiently persuaded that par 110 (assessed in context) as it currently stands is enough to constitute an act of waiver by Mr McMaster.  I would also observe, as regards a pre‑trial evaluation from parts of a witness statement which have not yet been read into evidence, that a degree of caution also needs to be exhibited by a court in reaching a conclusion about an implied, inferred or imputed act of waiver from a witness statement - particularly in a complex commercial case redolent with multiple documents which, in aggregate, will ultimately need to be assessed with the statement.  There may be occasions where a safe and firm conclusion can be drawn concerning an act of waiver from an exchanged statement but, on my assessment, with the benefit of deliberation, the present is not such a case.

10. In addition to that conclusion, there is the other problematic issue, concerning the joint privilege held by the Griffin party defendants and whether, in the circumstances, the witness statement provided by Mr McMaster, in the terms now seen, during the lead-up to trial might be assessed as sufficient enough conduct to be an inconsistent act binding all joint privilege holders - in circumstances where it is accepted for a joint privilege to be waived that all parties need to be participants in the act of waiver.  That is a difficult standard where the waiver is to be implied from only one party's conduct.

11. The plaintiffs' written submissions make something of the high levels of co-operation as between all defendants for trial, in terms of the exchange of Mr McMaster's witness statement.  They suggest that it is essentially unthinkable that all relevant defendants would not have sanctioned what emerged as his proposed witness statement (not yet read).  Again, however, I am not prepared to accept that broad submission concerning the wider implied impacts of Mr McMaster's witness statement, as regards all joint holders of legal professional privilege in present circumstances.  Each waiver case is different and a circumstance of express waiver ought, of course, to be more clear to assess.  For present circumstances, however, given the arguments about the proper inference or implication to draw concerning par 110, I am not left satisfied that there has been demonstrated the level of clearly inconsistent conduct that can be made attributable to all holders of the joint privilege in the Baker McKenzie legal advice. 

12. On that basis, the plaintiffs' application for access to the Baker McKenzie privileged documents is rejected on the basis of my conclusion that there is no waiver of legal professional privilege, or at least that I have not been left satisfied to the requisite standard about such a waiver as having been shown at this time.