Background
This consequential judgment addressed “Waiver B,” an issue left unresolved following the court’s earlier judgment in the proceedings, [2026] EWHC 2024 (Ch). The petitioners contended that Curve OS Group Limited had waived legal professional privilege over material held by Mr Aitkenhead, a company director, after the company’s solicitors referred to information and documents available to him.
The dispute concerned five mixed documents containing both privileged and non-privileged material: four sets of board minutes—Documents 3, 6, 52 and 54—and one board pack, Document 53. Three expressly marked the portions said to be legally privileged; two did not. The relevant correspondence arose in a litigation environment and concerned document requests made by the petitioners under information rights in a shareholders’ agreement.
The Court’s Holding
Mr Justice Marcus Smith held that the company had not waived privilege in any of the five documents. A broad reference by the company’s solicitors to documents held by a director was insufficient: the documents had to be clearly identifiable, and there had to be clear authorization for the director to disclose the privileged material.
The correspondence did not supply that authorization. Both sides understood that Mr Aitkenhead received information in his capacity as a director and could pass some information to the petitioners under the shareholders’ agreement, but that agreement did not override his duties to the company, including his obligation to preserve its privilege. The solicitors’ statements established only that no additional information had been withheld from him, not that he was authorized to disclose privileged content.
Key Takeaways
- A solicitor’s broad reference to documents held by a company director does not, without more, waive the company’s legal professional privilege.
- Waiver in this setting requires clearly identifiable documents and clear authority permitting the director to disclose privileged material.
- Contractual shareholder information rights do not override a director’s duty to preserve the company’s privilege.
Why It Matters
The ruling clarifies the limits of implied waiver when privileged material is held by a director who also serves as a shareholder’s representative. References in correspondence to information available to that director will not necessarily permit an opposing party to treat privileged portions as disclosed.
Companies, directors and shareholders should distinguish carefully between a director’s access to company documents and authority to pass those documents to a shareholder, particularly once litigation is contemplated.