Barclays ‘waived’ goodbye to their privilege: an insight into the cherry-picking rule
Privilege entitles a party to withhold evidence from production to a third party or the court. The loss of this privilege through a waiver is developed in PCP Capital Partners LLP and another v Barclays Bank plc  EWHC 1393 (Comm), where the High Court allowed an application for further disclosure of privileged documents on the basis that legal professional privilege had been waived.
The claimant, PCP Capital Partners LLP’s (PCP), brought a claim against the defendant, Barclays Bank plc (Barclays) in relation to Barclays’ fundraising during the 2008 financial crisis. Barclays sought to raise a minimum of £6.5 billion through private investors. A group of Qatari investors, who were their largest shareholders, offered to invest £2 billion and PCP agreed to invest £3.25 billion. PCP subsequently brought an action against Barclays for substantial losses of up to £1.6 billion alleging that, during the negotiations, Barclays fraudulently misrepresented that PCP would receive the same consideration for its investment as the Qatari investors. It is alleged that the Qatari investors received additional funds disguised as consideration payable for advisory services under advisory services agreements (ASAs). The allegations are denied by Barclays.
Separately, the Serious Fraud Office (SFO) brought criminal charges against Barclays and four of its senior executives prior to the commercial court proceedings related to the above case being commenced. The charges against Barclays were dismissed and its executives were acquitted. During the SFO litigation, the SFO received documents from Barclays protected by legal professional privilege under a waiver. Some of these documents were then referred to in open court and lost their privileged status.
Application for further disclosure
PCP made an application for further disclosure of documents related to the ASAs which so far had been withheld by Barclays on grounds of privilege. PCP’s application was made on the basis that:
- there was a waiver of privilege over legal advice concerning the ASAs due to the references to legal advice in several of Barclays’ witness statements and in Barclays’ opening submissions
- as a result of these references in open court (the alleged waiver in (i)), privilege had been waived over all of the documents relating to the ASAs previously not disclosed due to privilege.
Barclays submitted that all documents referred to in open court by Barclays were references to documents that PCP already had. Since the documents had been referred to in the criminal proceedings they were no longer privileged and referring to these did not amount to a waiver.
Although it was determined that Barclays only referred to the effect, rather than the actual content of the legal advice in open court, the reliance on this advice in open court meant that legal privilege was waived. Barclays’ reliance on the documents protected by legal privilege was key in proving Barclays’ case regarding the ASAs. Waksman J analysed Marubeni v Alafouzos  WL 408062 and concluded that the reliance on the documents, the purpose of the reliance on the documents, and the context all played an integral role when determining whether there had been a waiver of privilege.
Waksman J stated that the waiving party, in this case Barclays, must be relying on the reference to the legally privileged material to support their case on an issue before the court. Waksman J found that the detailed references in the witness statements to the involvement of lawyers and expressing reliance on the legal advice amounted to more than simply referring to the fact of the advice being in existence. The reliance on this advice in open court meant that legal privilege was waived over the documents in question.
Collateral waiver of privilege, widely known as the cherry-picking rule, prevents a party from providing ‘helpful’ privileged documents and not potentially detrimental documents. In order for the court to make a fair and just analysis, when there is further privileged material relating to the same issue there will be a waiver of privilege to ensure all relevant documents are disclosed, in this case the further privileged documents relating to the ASAs.
Waksman J found that there had been a collateral waiver of privilege as the relevant issue was the legal advice relating to the ASAs, and this had been relied upon in court in support of Barclays’ case.
Learning points / conclusion
This case emphasises the test to be applied regarding collateral waiver of legal privilege is fact dependant, and should serve as a warning to lawyers and parties to take extra care when referring to legal advice in witness evidence and in court submissions, especially when the legal advice relied upon may have a fundamental impact on the party’s case. This case provides an additional insight into the cherry-picking rule, the interplay between different proceedings relating to the same dispute, and how that affects privilege.