The case of Belhaj v DPP  EWHC 513 (Admin) concerned the issue of waiver and related to privileged information communicated by the Government to the DPP under limited waiver.
In summarising the relevant legal principles, the Court noted that privilege may be waived for a limited purpose without being waived generally. However, the existence of waiver is not dependent on the party’s subjective intention but rather is to be judged objectively. The Court also highlighted the rule against cherry-picking: namely, that waiver of privilege regarding part of a document amounts to waiver of the whole. This will apply where there has been a “knowing, deliberate, deployment resulting in partial disclosure”.
On the facts, the claimant argued that the limited waiver was not effective to prevent the information being used in the subsequent judicial review proceedings because the process of deciding whether to prosecute and the subsequent review of that decision formed a single, composite whole such that waiver for one meant waiver for all. This argument was rejected by the Court: there was no nexus between the two and they were not a composite process. Accordingly the limited waiver was held to be effective.
The issue of limited waiver was also considered in the case of AL v XYZ Ltd  EWHC 856. This case concerned a judicial review challenge against a decision by the SFO not to pursue a company for breach of a Deferred Prosecution Agreement where the company had refused to disclose interview notes on the basis that they were privileged. The defendant in the criminal proceedings (the claimant in the judicial review proceedings) sought disclosure of interview notes from the SFO which were held by the company. The company had refused to disclose these on the basis that they were privileged, although a summary had been provided to the SFO. Following an application in the Crown Court requiring the SFO to disclose the notes (which was dismissed on the basis that they were not in the SFO’s possession), the SFO asked the company to reconsider and when they refused, the SFO informed the defendant that it was taking no further action.
On the question of waiver of privilege, the Court considered whether the provision of a summary of the interviews had amounted to a waiver of privilege in the underlying documents, despite assertions to the contrary. The Court emphasised that waiver is determined objectively and cast doubt on the assertion that that there had not been a waiver in the circumstances. This was on the basis that: when the summaries were provided, the company knew (or must have known): (i) that it had already submitted a document to the SFO which was inculpatory of the Defendants; (ii) that the summaries were being made to further the SFO’s investigation into the Defendants; (iii) that it was a very real possibility/likelihood that the Defendants would be prosecuted; (iv) that there was a real possibility/likelihood that the summaries would be provided by way of disclosure to the Defendants; and (v), that the summaries were of material that XYZ Ltd was asserting privilege over.