Solicitors Regulation Authority Ltd v Soophia Khan & Ors
[2024] EWCA Civ 531
Alexander Aslani v Paulina Sobierajska
3 May 2024
[2024] EWHC 1045 (KB)
High Court
Someone was sued and didn't follow a court order. The other side wanted to see her lawyer's advice, arguing she'd revealed parts of it already. The judge said it was too early to decide; they'd look at that only if the court finds she broke the order. The judge also delayed the case because the woman gave evidence too late.
Key Facts
- •Dr. Aslani sued Ms. Sobierajska for libel over defamatory Instagram and RealSelf posts.
- •Default judgment was entered against Ms. Sobierajska, who did not live in the UK.
- •Saini J ordered Ms. Sobierajska to pay damages and issue an apology; she allegedly breached this order.
- •Dr. Aslani brought a committal application for contempt of court and a specific disclosure application.
- •Ms. Sobierajska's late submission of a third witness statement led to the committal application's adjournment.
- •The key preliminary issue was whether Ms. Sobierajska waived legal advice privilege by referencing legal advice in her witness statements.
Legal Principles
Waiver of legal advice privilege occurs when a party refers to the content or gist of advice, not merely its effect, and relies on that reference to support their case.
PCP Capital Partners LLP v Barclays Bank Plc [2020] EWHC 1393 (Comm) at [48]
The content/effect distinction in determining waiver is fact-sensitive and considers reliance, purpose of reliance, and the case's context. Merely stating the conclusion of the advice may not prevent a waiver.
PCP Capital Partners LLP v Barclays Bank Plc [2020] EWHC 1393 (Comm)
Fairness underpins the waiver concept. If a party's waiver creates a partial picture, fairness requires disclosure of further privileged documents to avoid 'cherry-picking'.
PCP Capital Partners LLP v Barclays Bank Plc [2020] EWHC 1393 (Comm) at [47]
The question of waiver depends on what was disclosed and the circumstances; a degree of reliance is required, and ultimately, fairness dictates whether full advice should be available.
Brennan v Sutherland City Council [2009] ICR 479
Legal advice privilege is crucial, and waiver is not easily established. Ambiguity should be construed in favour of maintaining privilege.
Brennan v Sutherland City Council [2009] ICR 479 at [66]
Outcomes
The Specific Disclosure Application was dismissed at this stage.
While Ms. Sobierajska referred to the content of legal advice, her reliance on it wasn't to advance her case on the threshold issues of service and breach of the Saini J Order. Addressing the waiver would be premature until those issues are resolved.
The court adjourned the Amended Committal Application.
Due to the late submission of Ms. Sobierajska’s third witness statement, fairness dictated an adjournment to allow Dr. Aslani adequate time to respond.
Relief from sanctions granted for the late witness statement.
The court considered the criteria in CPR r 3.9(1) and the guidance in Mitchell and Denton, balancing the lateness of the submission against the relevance of the evidence.
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