Partial waiver

Fulham Leisure Holdings Ltd v Nicholson Graham and Jones (a firm) ChD TLR 23 February

The claimant claimed damages for professional negligence by the defendant when acting as its solicitors in its purchase of an interest in Fulham Football Club in 1997. For some months at the beginning of 2002, the claimant had taken advice from counsel and other solicitors in relation to its position and during these proceedings had voluntarily disclosed the attendance note of a consultation with counsel and the instructions which gave rise to it. The advice was referred to in the claimant’s particulars of claim and in various witness statements. One element of the claim was the amount of legal professional fees spent in trying to sort out the position with minority shareholders. It was in that context that the disclosure was made. It was apparent from the disclosure that there was a greater involvement of solicitors and counsel than on the disclosed occasions. Nevertheless, where a party waived legal professional privilege by disclosing advice given in relation to one transaction, fairness did not require that the court should see all advice relating to the disputes within the relevant period. Accordingly, the waiver did not entitle the defendant to disclosure of other documents setting out or recording instructions received and advice given by counsel and solicitors during that period. However, it was known that the counsel and solicitors concerned had some involvement after the occasions disclosed, and therefore the transaction in question should extend to any later qualifications, extensions, or amplification of that advice in the relevant period, which could fairly be treated as being part of the advice already disclosed.