- Restoring privilege waived by reliance in pleadings (Property Alliance Group (PAG) v RBS)
- Practical implications
- Pleading fraud
- Clawing back privilege you may have waived in your pleadings
- Background to and key decisions on the applications in the case management conference
- Application to amend to include allegation of fraud
- Restoring privilege waived in the pleadings
- Court details
Dispute Resolution analysis: The Chancery Division agreed to set aside an order for production that had been based on a party’s waiver of privilege over certain documents. RBS argued that the previous orders for production of privileged material be set aside in the light of their application to amend their particulars of claim so as to remove the allegations which relied on those privileged documents. The court held the privileged material had not been deployed by that party to advance the underlying merits of its case, but had merely provided the context for disclosure. As such, it was minded to set aside the orders for production. Separately, it also allowed an application to amend a statement of case to include an allegation of fraud. In doing so, it highlighted the special scrutiny with which courts consider such allegations, and reinforced the need for full particulars which must set out the facts on which any inference of dishonesty is based. In this case, the party alleging fraud made a number of points which, taken overall, provided ‘ample prima facie support’ for an inference of fraud and dishonesty. As such, the amendment should be permitted at this interim stage and the party against whom the allegations were made should be given the opportunity to respond before the matter proceeded to full trial.
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