IDCV v Curve OS Group: privilege not waived by references to documents held by director

The High Court has held that a company did not waive legal professional privilege (LPP) over a series of board documents, even though its solicitors' correspondence referred to material in the hands of a director who also acted for a shareholder.

In IDCV CU FT3 K/S & Ors v Curve OS Group Ltd & Ors [2026] EWHC 2542 (BP), Mr Justice Marcus Smith decided the point the parties called "Waiver B", left open by his earlier judgement at [2026] EWHC 2024 (Ch).

The test

The earlier judgement held that a broad reference to a class of documents cannot waive LPP. The documents in the director's hands must be clearly identifiable, and there must be clear authorisation that he was entitled, as a director, to disclose them. Ordinarily, explicit and direct authority from the company would be expected.

The parties could not apply that test to the specific documents themselves. Five were in dispute: board minutes dated 26 March, 23 April, 14 May and 10 June 2025, and a board pack. Each mixed privileged and non-privileged content. The versions Mr Aitkenhead passed to the petitioners were unredacted, and three marked the privileged passages on their face.

The correspondence

On 30 April 2025, the petitioners' solicitors, Quinn Emanuel, wrote to the board naming Mr Aitkenhead and stating that litigation counsel had been retained. The judge said this created a "litigation environment". On 3 May they asked the company's solicitors for broad categories of material, including all board minutes.

The company's solicitors replied on 6 May asking whether the request came from Mr Aitkenhead as a director or from IDC as a shareholder, and reminded him of his duties and confidentiality undertakings. Quinn Emanuel confirmed the request was made for the petitioners under their information rights in clause 9 of the shareholders' agreement. On 7 May the company's solicitors said they held nothing beyond what Mr Aitkenhead already had, and invited him to identify any specific further material.

Al-Fayed

Waiver of LPP ordinarily has to be objectively clear and unequivocal, which pointed towards no waiver. The judge nonetheless considered Al-Fayed v Commissioner of Police of the Metropolis, under which a recipient may generally assume that a solicitor who mistakenly sends a privileged document to the other side has considered the point and, with the client's authority, waived privilege.

That reasoning is "attenuated", he said, where the solicitor produces no document but only refers to one held by another person who can and may produce it. The earlier test therefore applies.

Shared understanding

This was not a case of solicitors supplying documents containing privileged material to their opponents. Both sides proceeded on the basis that Mr Aitkenhead received information as a director, some of which the shareholders' agreement allowed him to pass on. The earlier judgement had held that the agreement did not override a director's duties and that he was bound to preserve the company's LPP.

That, the judge found, must have been the common understanding. The company's solicitors made explicit that Mr Aitkenhead wore two hats, and the petitioners' solicitors confirmed they sought information to which the petitioners were entitled under the agreement. The correspondence was essentially directed at whether any body of material had been withheld from him, and the company's solicitors confirmed that it had not.

Privilege was not waived in any of the documents. The judge stressed that waiver is always fact specific.

Chantelle Staynings appeared for the petitioners, and Stephen Robins KC and Clara Johnson for the company.