84 Each of these documents is one of the 7 February documents.
85 In the first instance, GT argues that documents (a) and (b) are not privileged, as they are communications between witnesses. Alternatively, if they are privileged, then GT argues that privilege has been waived.
86 Having examined document (a) and the solicitor's email which preceded it, I am satisfied that a claim for privilege has been made out in respect of it. Communications between two officers or employees of a client, made for the dominant purpose of obtaining information to provide to the client's solicitors for use in this litigation, are clearly privileged.
87 The position is less clear in relation to document (b). A communication between a client and a non-party, including a witness, may be privileged if made for the dominant purpose of obtaining information for use by the client's lawyers. The problem here is that I have no evidence as to why the witness was communicating with the client. Mr Williams may have been communicating with Mr Riddell for a privileged or non-privileged purpose. The further affidavit which I propose to require Amare to swear should address this matter. For the purpose of considering the waiver argument, I will assume that document (b) is privileged.
88 GT seems to accept that the email part of document (c) is privileged. But GT disputes that the enclosed unsigned indemnity is privileged unless somebody makes a proper claim for privilege in an affidavit. There is no evidence before me as to whether the indemnity was in fact ever executed by Amare. If any such indemnity was executed, then the executed document ought to be discovered in the non-privileged part of Amare's discovery. Amare's affidavit will need to establish a claim to privilege for this part of document (c). I will assume for the purpose of considering the waiver argument that document (c) is privileged.
89 I find that there has been no implied waiver of privilege in relation to the excluded material. The documents were disclosed through inadvertence. Amare has acted reasonably promptly in seeking the return of all privileged documents once it became aware of the disclosure. Apart from using them in this application, the only use so far made of the excluded material is in the 7 February letter. In opposing the removal of its lawyers, GT accepts that it and they will be able to conduct the trial without recourse to any privileged documents. The prejudice which might flow to Amare from the loss of privilege outweighs any forensic advantage which GT might obtain from retaining the excluded material. In my opinion, fairness does not require that any privilege which attaches to the excluded material be waived. In so holding, I bear in mind that legal professional privilege is a substantive right, not merely a rule of evidence.
Should GT's lawyers be restrained from acting?
90 Although there is now only a waiver argument in respect of the small amount of excluded material, the fact remains that discovery and inspection have been given of hundreds of potentially privileged documents. The question I have to consider is whether the conduct of GT's solicitors and counsel been such as to justify the court restraining them from acting. Having carefully considered all the evidence I see quite a difference in the position of GT's solicitors and counsel.
91 On the one hand, it is clear that Mr North and Mr McGregor must have had extensive regard to the contents of the folders of documents, which they had specifically requested to be copied and provided to them. For the reasons given earlier, I conclude that they could not have drafted the various letters, or selected the enclosures, without doing so. It seems clear on the evidence before me that counsel, and not the solicitors, were driving GT's response to the inadvertent disclosure. The court has not heard from them as to precisely what documents they have read or what they can now recall. But, as the persons who would be cross-examining Amare's witnesses, there must be very real concerns about their capacity to put out of their mind everything they have seen in the folders of privileged documents. Mindful of the exceptional nature of the order, I have nevertheless come to the conclusion that a fair-minded, reasonably-informed member of the public would conclude that those counsel should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
92 In coming to that conclusion, I do not intend to make any comment about the ethical aspects of counsels' conduct, as I am not privy to all their communications with the Bar Ethics Committee about this matter.
93 The position is somewhat different in relation to GT's solicitors, Norton White. As discussed earlier, I am satisfied that they have far more limited knowledge of the contents of the documents than counsel. It seems that the firm, in the form of Mr Dewar, essentially accepted counsel's drafting of the most significant correspondence. Indeed, much of Mr Dewar's conduct throughout this matter was heavily influenced by the advice he received from far more experienced practitioners than him. Whilst not suggesting that solicitors can absolve themselves from responsibility simply by relying on counsel, I am not persuaded that the solicitors' conduct has been such as to justify the exceptional remedy of depriving GT of its choice of solicitors.
94 In coming to that conclusion, I also have regard to the stage which the proceeding has reached. The proceeding was commenced in October 2005 and Norton White have acted for GT throughout that period. At the last directions hearing, held in December 2006, orders were made for the filing and service of witness statements and court books. It is clear that Norton White have undertaken substantial work in attending to these tasks. In refusing to restrain the solicitors from acting, I bear in mind the cost, inconvenience and impracticality of requiring them to cease to acting at this relatively late stage of the proceeding.
95 I am also satisfied that Norton White could effectively act as solicitors in the trial without disclosing the contents of any privileged documents to new counsel retained on behalf of GT. The position is less satisfactory in relation to any settlement discussions which might occur prior to trial. In so far as the 7 February documents might disclose possible flaws in Amare's defence, the solicitors cannot put that knowledge out of their mind in any negotiation. But removing the solicitors would not remove that problem, as it is clear that GT is itself aware of the nature and contents of the 7 February letter. Furthermore, Amare vehemently denies that the 7 February documents actually disclose weaknesses in its case, a position which it would presumably continue to press in any settlement negotiation.
96 For these reasons, I conclude that an appropriately drafted injunction or undertakings, to prohibit any further use of privileged material by GT or its solicitors, would be the most appropriate remedy in the case of the solicitors.
Conclusion
97 I will hear from the parties as to the precise form of orders and as to costs. The orders will, inter alia, need to make provision for the return of all privileged documents in the possession of GT and its lawyers and the sealing up of all privileged exhibits.