Barrister waived privilege in document by showing it to opposing counsel

Matthews: No objection in principle to counsel providing evidence

Counsel for a defendant in possession proceedings voluntarily disclosed a draft witness statement to her opposing number and in doing so waived privilege, the High Court has ruled.

The latter barrister gave evidence at the hearing, after His Honour Judge Matthews in Bristol satisfied himself that he could take this unusual step.

He was ruling in the latest stage of a multi-headed case known as Axnoller Events Ltd v Brake & Anor, which has so far generated more than 20 published decisions.

This newest judgment arose from possession proceedings and concerned whether the claimant could cross-examine one of the defendants, Mrs Alo Brake, on a draft witness statement in her name dated 26 November 2018, but not signed.

The first hearing of claim took place at Yeovil County Court the following day and HHJ Matthews had to decide how the witness statement came to be shown to Axnoller’s counsel that day, Niraj Modha, allowing him to photograph it.

The judge said it was clear from the authorities “that there is no objection in principle to counsel providing evidence of what has happened in a matter with which they were concerned professionally”.

In his evidence, on which he was cross-examined, Mr Modha said that, after introducing himself to the defendants’ counsel, Daisy Brown, he asked whether she had a skeleton argument that she could exchange and whether she was relying on any evidence.

He recounted that she said she had both a skeleton and a draft witness statement but only one printed copy of each, and that she intended to hand up the latter to the judge.

He said he asked if I could see it first and she handed it over. He read the document in the waiting area and “in order to save the time and cost of photocopying” photographed each page on his mobile phone whilst sitting opposite Ms Brown and the second defendant, Andrew Brake.

Ms Brown is currently on sabbatical and provided evidence by email. Though not on oath or supported by a statement of truth, HHJ Matthews said he was “not going to impugn the veracity of a member of the Bar who tells me that this is what happened”.

She said she had no recollection of giving Mr Modha her copy of the draft statement to read. “This would have been an unusual thing to do, bearing in mind it was incomplete and unsigned. It is not my practice to give incomplete witness statements to opposing counsel to read.”

Ms Brown said she also did not recall Mr Modha asking to photograph it. “This would have been an unusual and alarming request and I would have thought I would have refused had he asked.”

In his evidence, Mr Brake said he was “absolutely certain” that he did not see Mr Modha taking photographs of any papers and that he had not been sitting opposite them.

He said there was a point where both he and Ms Brown had gone to the toilet, leaving her bag unattended.

HHJ Matthews said he found Mr Modha to be “a very professional and careful witness”, and there was “no question of impugning his veracity”.

Mr Brake was “a very careful and precise witness” and the judge said: “I can see no reason for supposing that he was trying to mislead the court or tell me an untruth.”

HHJ Matthews found that the draft witness statement got into the claimant’s hands because it was seen by Mr Modha at the hearing on 27 November. The question then was whether Ms Brown allowed him to read it.

The judge inferred that Ms Brown must have told the court something of the defence in an effort to prevent an immediate possession order being made, “and it would have been quite reasonable in those circumstances to show the other side something beforehand to show them what was the nature of the substantive defence”.

He continued: “I entirely accept what Ms Brown says, that ordinarily counsel do not show draft witness statements (or any draft documents) to their opponents.

“But in this case there was a good reason to do so, and all that Ms Brown says is that it was not her practice and that she has no recollection of doing it on this occasion. So there is not, strictly speaking, any conflict on this point between Ms Brown and Mr Modha.

“Nevertheless, my conclusion on all the material before me is that Ms Brown did lend Mr Modha her copy of this witness statement so that he could glean the substantive nature of the defence and that, he having read it, then photographed it.”

It did not much matter whether or not she authorised him to photograph it – the act of deliberately showing the draft witness statement to opposing counsel was enough to waive privilege in it, HHJ Matthews said.

In any event, he found that Mr Modha did photograph it openly in the waiting area; Ms Brown and Mr Brake may simply have missed it.

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