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Collateral Waiver of Privilege

The claim arose as a result of the Claimant falling over a temporary road sign when works were about to commence. His claim was brought under the Occupiers Liability Act 1957


The Claimant alleged that he had fallen over a temporary road sign. In his CNF he alleged that the time of the accident was 7pm. In his witness statement and Part 18 responses he stated that the accident was between 4-5pm. The timing was crucial as the Defendants did not put any temporary signs out until 6.30pm. Two days before trial the Claimants solicitors sought to adduce both a witness statement and a manuscript document which were the solicitors notes of the original conference which gave rise to the timing on the CNF. They made an application for late inclusion of the witness statement and the manuscript document. Defence Counsel, Mr. Stebbings, made an application at the trial that the disclosure of the privileged material was a collateral waiver of privilege and therefore any other privileged documents which went to the issue in question (the timings) were also disclosable.


The District Judge found that the inclusion by the Claimant’s solicitors of the manuscript document as supporting the relief from sanctions application meant that the document had been ‘deployed in court’ and that the content went to the ‘issue in question’. It therefore fulfilled the criteria of collateral waiver of privilege. The District Judge stated he would make such an order for disclosure. Claimant’s Counsel sought time to take instructions and upon return discontinued the claim.


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