Companies will always benefit from guidance on the extent to which they may be able to prevent the disclosure of their documents on the grounds that the documents are privileged. The recent English High Court case of Guest Supplies Intl Ltd v South Place Hotel Ltd and another [2020] EWHC 307 (QB), provides companies in England (or those who mainly contract under English law) some useful clarity on what, or more specifically, what not, to do if you are looking to preserve privilege – in this case legal professional privilege.


The claimant in this case supplied amenities to a hotel which was operated and managed by the defendant companies. It claimed that the defendants were in breach of contract, including that they would be the defendants' exclusive supplier. The parties all agreed that the arrangement was governed by an oral agreement made in February 2016 but they diverged on the precise terms and, importantly, whether the agreement had ever been recorded in a formal contract.

The claimant relied on a document said to be a written version of the oral agreement. Its director said that this document had been signed and sent to the defendants a few months after the oral agreement but a countersigned version had never been returned. It transpired, however, that the document had in fact been recreated in the months before proceedings were raised.

The director's witness statement noted that "without waiving privilege" he had recreated the document from an earlier draft and sent this to the company's solicitor to "give him an accurate version of what the final agreement would have looked like". The first defendant applied to the court for specific disclosure of all communications between the director and the former solicitors as to the creation, provenance and/or authenticity of the document. The claimant resisted this on the grounds that documents, being communications between solicitors and the individual responsible for instructing them, were subject to legal professional privilege.


The court held that using the phrase “without waiving privilege” was not determinative of whether there was, in fact, a waiver of legal professional privilege. That question had to be assessed objectively based on the facts and circumstances of the case. The court found that the director had sought to rely on privileged communications with solicitors in order to add credibility to his version of events as to the creation of the original agreement. As the very existence of the document in question was being challenged, this went to the heart of a key issue in the case, so it was sufficient to waive privilege.

With waiver established, the court also determined what the scope of the disclosure should be. In general terms this was to cover communications on the same “topic”. The court noted that fairness to the defendants required that they were given the full picture. This meant that disclosure could not be limited to the director's communications to the solicitors. It also had to include any further exchanges dealing with points of clarification.


The decision is not a departure from established principles on privilege. Companies should continue to assess the intended purpose of a document or communication before seeking to rely upon it as privileged and should consider the risks that a potential disclosure of all communications "on the same topic" might have on their position. On the practical side, the case does serves as useful guidance on what might well have been a commonly used phrase when seeking to invoke privilege. Remember, you can waive privilege "without waiving privilege"…