PI Brief Update

29 July 2009 - Civil Procedure

Statement Recording the Fact that Legal Advice Has Been Given is Not Necessarily Privileged
Digicel v. Cable&Wireless, ChD, 17/6/09
Morgan J. held that statements that referred to the fact that a party had sought legal advice, but made no reference whatsoever to the content of the legal advice received, did not in themselves give rise to an implied waiver of legal privilege in that advice. Although the privileged material may have been of relevance to a Court’s fact-finding exercise, relevance was not in itself sufficient to give rise to an implied waiver of privilege. Fairness was not a touchstone from which the Court could determine whether or not there had been a waiver.

Service Not Valid Where Claimant Failed to Communicate that Service Would be by Fax
Brown v. Innovatorone QBD, 19/6/09
Andrew Smith J. held that where CPR 6.3 provides for service of a claim form by fax, the mere fact that a Claimant’s solicitor has received correspondence from a Defendant’s solicitor on writing paper setting out their fax number does not mean that a claim form can be validly served by sending it to that fax number. The situation would only be different if the Claimant had been told by the Defendant that their solicitors should be served under CPR 6.7. Although the Defendant had suffered no prejudice as a result of the proceedings being served upon their solicitors rather than upon them personally, the mere absence of prejudice was not sufficient to make an order to permit service by an alternative method pursuant to CPR 6.15.