3VB Successful on Remote Appeal Relating to Waiver of Privilege in Expert Report

TMO Renewables Ltd v Reeves and Audley

3VB’s Andrew Sutcliffe QC and George McPherson (instructed by Lee Dunnill and Zoe May of Hewlett Swanson for the liquidators of TMO) have successfully overturned on appeal the decision of a Chancery Master that the claimant waived privilege in an expert valuation report by referring to it in a witness statement in response to the defendants’ application for security for costs.

The appeal took place on 31 March on a fully remote basis by video, before HHJ Jarman QC.

The Judge held that the report had been obtained for pleading purposes only; that a security for costs application did not usually engage the merits; and that reference had been made to the report for the narrow purpose of rebutting the serious allegation that the liquidators could not possibly believe the quantum claimed.

Applying two (unreported) Court of Appeal decisions from the 1980s (Government Trading Corp v Tate & Lyle and Marubeni Corp v Alafouzos), the Judge concluded that in context reference had been made to the effect of the report, not its contents, which did not involve a waiver of privilege.