```html IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION CAUSE NO. 91 OF 2017 BETWEEN: HENRICO SWABY Plaintiff AND ATTORNEY GENERAL 1st Respondent AND CHIEF IMMIGRATION OFFICER 2nd Respondent AND GOVERNOR OF THE CAYMAN ISLANDS 3rd Respondent Appearances: Mr. James Kennedy of KSG Attorneys- At -Law for the Plaintiff Ms. Rachael Hoare of the Attorney General's Chambers for the Respondents Before: Hon. Justice Richard Williams Heard: 4 December 2017 Draft Judgment circulated: 12 December 2017 Date of Judgment: 13 December 2017 HEADNOTE Deportation - judicial review - Bill of Rights - Notice under GCR Order 24, rule 10(1) for production for inspection of written legal advice - legal professional privilege ```
```markdown # Application
This application is brought by the Applicant’s Summons dated 24 October 2017 in which only the following order 1 is now sought: (i) for the Respondents to produce for inspection within seven days of the service of this order legal opinion referenced in the affidavit of Wesley Howell dated 4 September 2017 as contained within the Cabinet Paper 2361/17 as Appendix D.
The application comes within Judicial Review Proceedings commenced by the Applicant’s Notice of Originating Motion filed on 9 June 2017 and superseded by the Amended Notice of Originating Motion filed on 25 July 2017. The resolution of the matter, as pleaded, will include the issue of proportionality under the Cayman Islands Constitution Order 2009. Leave to apply for Judicial Review was granted by Hall J. on 1 June 2017. On 18 July 2017 Hall J. made a number of directions to trial which were set out in a Consent Order.
The Applicant contends that the decision of the Governor to deport him was unlawful and *ultra vires*. The grounds for that contention are set out at paragraphs 1 to 5 of the Amended Notice of Originating Motion. One of the grounds is that the Respondents failed to take into consideration relevant factors when reaching their decision. 1 The Court was informed at the hearing that the order in paragraph 2 of the Summons is not sought at this hearing. 171213 Henricho Swaby v The Attorney General et al - Judgment Page 2 of 25 ```
the decision to exercise discretion to order deportation. At paragraph 4 the Applicant lists those relevant factors as being: - i. the nature and seriousness of the offence committed by the Applicant; - ii. the length of the Applicant's stay in the country from which he is going to be expelled; - iii. the age of the Applicant when he first became resident in the Cayman Islands; - iv. the time elapsed since the offence was committed as well as the applicant's conduct in that period; - v. the future threat that the Applicant poses to public order; - vi. the nationalities of the various persons concerned; - vii. the Applicant's family situation; and - viii. the Applicant's ties to the country of deportation.
A further ground is that the Respondents failed to adopt fair procedural safeguards in breach of s.19 of the Bill of Rights (Part 1 of Schedule 2 to the Cayman Islands Constitution Order 2009) (“BOR”) and specifically that: "The Respondent's decision is unlawful, ultra vires, or otherwise unreasonable in that it has failed adequately, or at all, consider the relevant circumstances of the applicant, including but not limited to, the risk of re-offending, risk of harm posed and effects of rehabilitation when considering whether or not the applicant deported."
The Applicant summarises as follows the test, as set out by the House of Lords in R., ex parte Razgar v Secretary of State for the Home Department, Appeal 171213 Henricho Swaby v The Attorney General et al - Judgment Page 3 of 25
Judgment [2004] UKHL 27, [2004] 2 AC 368, [2004] 3 WLR 58, [2004] 3 All ER 821, ILDC 104 (UK 2004), to be followed at the final hearing of the Originating Notice when deciding whether the decision to remove was proportionate in the light of the facts and whether a fair balance was struck between the Applicant’s right to respect for private and family life under s. 9 BOR and the immigration policy of the Cayman Islands: (1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8 2 ? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
On 4 September 2017 the Respondents filed an affidavit sworn on 4 September 2017 by Mr. Wesley Howell, Chief Officer of the Ministry of Human Resources, Immigration Community Affairs and Family Affairs. The affidavit will be placed upon it by them at the trial of the action. At paragraph 3 of the affidavit 2 Section 9 BOR. 171213 Henricho Swaby v The Attorney General et al - Judgment Page 4 of 25
Mr. Howell indicated that the decision to deport was informed by Cabinet Paper CP2361/17 prepared by the Department of Immigration and presented by his Ministry in which the making of a deportation order was recommended.
Amongst the appendices to the Cabinet Paper was a legal opinion in the form of a Memorandum entitled: “Henrico Swaby: potential human rights implications of deportation” dated 9 February 2017 from the Attorney General’s Chambers following the Ministry’s request for advice “as to whether any deportation action would place the Cayman Islands in breach of any of its obligations\footnote{Paragraph 3 of the Legal Opinion.}” under the BOR. At paragraph 7 of his affidavit, Mr. Howell indicates that the Cabinet Paper was circulated for consideration and received approval from a quorum of Minsters on 28 April 2017. Mr. Howell added that the Paper’s approval was confirmed at the 17 May 2017 Cabinet meeting when there was no formal discussion of the matter.
The Applicant highlights that the 20 paragraph affidavit directly references and/or relies upon and/or selectively quotes from the legal opinion in paragraphs 4e; 6; 9; 11; 12-14; 16-19 and 20. By order GCR O
ice given uD.24, r.1\footnote{Paragraph 3 of the Legal Opinion.} \begin{table}[h] \centering \begin{tabular}{|c|c|} \hline \textbf{Date} & \textbf{Action} \\ \hline 28 April 2017 & Cabinet Paper circulated for consideration \\ \hline 17 May 2017 & Cabinet Paper approved \\ \hline \end{tabular} \caption{Timeline of Cabinet Paper Approval} \end{table} 171213 Henricho Swaby v The Attorney General et al - Judgment Page 5 of 25
```html GRAND COURT CAYMAN ISLANDS the Respondents advised the Applicant that the production of the legal advice was opposed on the grounds that it was subject to legal professional privilege. On 12 October 2017 the Respondents produced the Cabinet paper. The General Issues It is agreed that the advice would ordinarily be regarded as being covered by legal professional privilege. It is also agreed that the general rule is that legal advice is excluded from discoverable documents due to the principle of legal professional privilege. The issue for resolution is whether the Respondents have waived that privilege due to the references made by Mr. Howell in his affidavit and/or, by their disclosing extracts of the advice in the Cabinet Paper. Relevant Procedural Rules Under the heading “Inspection of documents referred to in pleadings and affidavits” GCR O.24, r.10 states as follows: (1) Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof. (2) The party on whom a notice of service is served under paragraph (1) shall, within 7 days after the service thereof at which the documents, or such of them as he does not object to produce, may be inspected ```
```html 12. Under the heading "Order for production for inspection" GCR O.24， r.11(1)， which provides： “If a party who is required by rule 9 to serve such a notice as is therein mentioned or who is served with a notice under rule 10(1) (a) fails to serve a notice under rule 9 or， as the case may be， rule 10(2)； or (b) objects to produce any document for inspection； or (c) offers inspection at a time or place such that， in the opinion of the Court it is unreasonable to offer inspection then or， as the case may be， there， then， subject to rule 14(1)， the Court may， on the application of the party entitled to inspection， make an order for production of the documents in question for inspection at such time and place， and in such manner， as it thinks fit." 13. Under the heading "Production to be ordered only if necessary， etc." GCR O.24， r.14， to which r.11(1) is subject， provides： “(1) No order for the production of any documents for inspection or to the Court or for the supply of a copy of any document shall be made under any of the foregoing rules unless the Court is of at the order either for di opinion that is necessarily of the cause or m saying (2) Where cation urde atter or for nd opinion that is necessarily of the cause or m saying any document for inspection or to the Court or for the supply of a copy of any document privileged from such production or supply is ```
```html GRAND COURT CAYMAN ISLANDS claimed or objection is made to such production or supply on the ground that it contains confidential information or on any other ground, the Court may inspect the document for the purpose of deciding whether the claim or objection is valid." Legal Professional Privilege There is no dispute that the legal opinion is covered by legal professional privilege. Before I go on to deal with whether the Respondents have waived that privilege I remind myself about the importance placed on legal professional privilege. The author of Passmore on Privilege, 2nd Edition (2006) states at paragraph 1.001: "In English law, legal professional privilege is a substantive common law and human right that protects the confidentiality of certain types of communication made between a professional legal adviser and his client or, where made in respect of legal proceedings, between the legal adviser or client and a third party, such as a witness in those proceedings." Lord Hoffmann in R (Morgan Grenfell) v Special Commissioners [2003] 1 AC noted that the European Court of Human Rights has held that legal professional privilege was protected as an aspect of the right to respect for private life and corresquaranteed of the Eur lan be argu opean Com Protechan Rights a loms. It ed ondence goy Article vention for menta Fran 8 the ion of Hun and Funded that s.9 BOR makes similar provision. 171213 Henricho Swaby v The Attorney General et al - Judgment Page 8 of 25 ```
```html 16.In my judgment dated 8 November 2013 in The Attorney General v MartinBridger Cause No. 486 of 2011 I analysed the importance that had been placed onprivilege as follows: “91.The importance of legal professional privilege comes from thepublic interest, requiring full and frank confidential exchangesbetween a client and his attorney once legal advice is beingsought. In the long-established rule in the common law wasdescribed by Lord Taylor of Gosforth CJ in R v DerbyshireMagistrates’ Court exp. B [1996] AC 487 at 507-508: “The principle...is that a man must be able to consult hislawyer, in confidence, since otherwise he might hold backof the truth. The client must be sure that what he tells hislawyer in confidence will never be revealed without hisconsent. Legal professional privilege is thus much morethan an ordinary rule of evidence, limited in its applicationto the facts of a particular case. It is a fundamentalcondition on which the administration of justice as a wholerests....It is not for the sake of the applicant alone that theprivilege must be upheld, it is in the wider interests of allthose hereafter you might otherwise be deterred fromtelling the whole truth to their solicitors.” 92.Lord Scott of Foscote, having reviewed the case law, went onto explain the policy reasons justifying the presence of legalprofessional privilege, and particularly legal advice privilege, inThree Rivers District Council and Others v Governor andCompany of the Bank of England (No 6) [2005] 1 AC 610 at649F para 34: of these jue the justifi multitud ions why， won.They are a privilege to cation for l the complinct of litigree live thble or “Nonedicial dictaegal de of reasatin which erewheher advice， the con tie that induex worl wdividualsunocnise powerful， or corporations， whether large or small， mayneed to seek the advice or assistance of lawyers inconnection with their affairs； they recognise that the ```
```html seeking and giving of this advice so that the clients may achieve an orderly arrangement of their affairs is strongly in the public interest； they recognise that in order for the advice to bring about that desirable result it is essential that the full and complete facts are placed before the lawyers who are to give it； and they recognise that unless the clients can be assured that what they tell their lawyers will not be disclosed by the lawyers without their (the clients') consent， there will be cases in which the requisite candour will be absent. It is obviously true that in very many cases clients would have no inhibitions in providing their lawyers with all the facts and information the lawyers might need whether or not there were the absolute assurance of non-disclosure that the present law privilege provides. But the dicta to which I have referred all have in common the idea that it is necessary in our society， a society in which the restraining and controlling framework is built upon a belief in the rule of law， that communications between clients and lawyers， whereby the clients are hoping for the assistance of the lawyers' legal skills in the management of their (the clients') affairs， should be secure against the possibility of any scrutiny from others， whether the police， the executive， business competitors， inquisitive busybodies or anyone else...” ``` ```latex
Lord Scott earlier stated in Three Rivers District (No 6) at 646D para 25: "...if a communication or document qualifies for legal professional privilege， the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person， the client， entitled to it and it can be overridden by statute， but it is otherwise absolute. There is no balancing exercise that has to be carried out." ```
Issues that Arise where there is an Objection to the Production of a Document on the Ground of Legal Professional Privilege
The Applicant agrees with the Respondents’ submission that the following legal issues arise when there is an objection raised to production on the ground of legal professional privilege: (i) Whether there has been a reference to a privileged document in pleadings or affidavits so as to engage GCR O.24, r.10(I); (ii) If so, whether the reference to the document is sufficient to waive privilege; and (iii) In any event, whether the Court should exercise its discretion under GCR O.24, r.14(1) to order the production of the document."
The Applicant points out that the general duty of candour in judicial review proceedings places a particular burden on public authorities to place all the relevant facts and reasoning underlying the relevant decisions. The Applicant also contends that in judicial review proceedings, where a public authority relies upon a document as being significant for its decisions, it is ordinarily good practice to exhibit it as primary evidence, with a summary not necessarily being sufficient, and it is for the Judge to rule on the need for disclosure. In support of this contention is made the following remark: "Where a public authority relies on a document as significant to its decision, it is ordinarily good practice to exhibit it as the primary evidence." 171213 Henricho Swaby v The Attorney General et al - Judgment Page 11 of 25
```html GRAND COURT CAYMAN ISLANDS primary evidence. Any summary, however conscientiously and skilfully made, may distort. But where the authority's deponent chooses to summarise the effect of a document it should not be necessary for the applicant, seeking sight of the document, to suggest some inaccuracy or incompleteness in the summary, usually an impossible task without sight of the document." As a consequence, it is suggested with some force by the Applicant that the restrictions placed on discovery in GCR O.24, r.14 are not to be so strictly applied in judicial review cases. 19. Before I move away from Lord Bingham’s observations at paragraph 4 in Tweed, I note that he also stated therein: “It is enough that the document itself is the best evidence of what it says. There may, however, be reasons (arising, for example, from confidentiality, or the volume of the material in question) why the document should need not be exhibited. The judge to whom application for disclosure is made must then rule on whether, and to what extent, disclosure should be made.” 20. The first issue, which is at paragraph 12(i) herein, is sometimes referred to as “mentioning”. There is no issue that the legal advice was mentioned in Mr. Howelit. As Rixed at para graph 23. 1’s Affidav L.J. confin Expand irmable “mentioned” there is no substantive difference between CPR 31.14 and the law 171213 Henricho Swaby v The Attorney General et al - Judgment Page 12 of 25 ```
```html GRAND COURT CAVAN ISLANDS developed under the RSC O.24, r.10 where the words “where reference is made” appeared. This is not a case where a reference by inference is suggested; it is accepted that there has been a “direct allusion” to the legal opinion. With that in mind, submissions have been concentrated on the last two issues found at (ii) and (iii) of paragraph 12 above. Reference to Privileged Documents in Pleadings and Waiver of Privilege 21. In England and Wales under the RSC, a reference to a privileged document in an affidavit did not generally amount to a waiver, provided that it could be shown that reliance is on the document and not on its contents. Similarly, it was held in the Expandable Limited case, where the CPR applied, that there is no automatic waiver of privilege just because a document was mentioned in a witness statement. 22. As there is no automatic waiver, the Court has to determine whether the mentioning of the legal advice in the affidavit means that privilege has been waived. When doing so the Court draws a distinction between reliance placed on a document and a reference to legal advice, because simply to refer to the fact that advice was given does not amount to a waiver of privilege in the advice. Elias J, in Brenderland C nnan v Suity Cou 171213 Henricho Swaby v The Attorney General et al - Judgment Page 13 of 25 ```
```html “The first is the nature of what has been revealed; is it the substance, the gist, content or merely the effect of the advice? The second is the circumstances in which it is revealed; has it simply been referred to, used, deployed or relied upon in order to advance the parties’ case?”
In Tate & Lyle International v Government Trading Corporation (CA, 19 October 1984) (1984) 81 L.S.G. 3341, CA4 the deponent, the solicitor for the Appellant, stated that the information to which he deposed in a paragraph in his affidavit filed in interlocutory proceedings on the issue of Iranian law was derived from a lawyer with whom he had consulted in Iran. It was held by the Court of Appeal that this did not to amount to a waiver in relation to communication with the lawyers. Goff L.J. agreed with the Court below that the question was whether, having regard to the circumstances in which that paragraph in the affidavit was sworn and to what is there deposed to: “constituted a disclosure of a document or communication which amounts to a waiver of privilege, or whether it is what has been called in the authorities a mere reference to a document or conversation which does not amount to a waiver of privilege.”
In Marubeni Corporation v Alafouzos Unreported, November 6, 1986, reference in an r leave to the inid affidavit foserve out defence lacked merit was held not to amount to a waiver of privilege in respect of 4 Reference to the case made to the parties by the Judge during the hearing. 171213 Henricho Swaby v The Attorney General et al - Judgment Page 14 of 25 ```
```html the Japanese advice.5 This decision was expressly followed by Slade L.J. inDubai Bank v Galadari (No. 2) [1990] 1 WLR 731, CA. who found that: “a mere opinion that on the balance of probabilities, a transactionreferred to in a pleading or affidavit must have been effected by adocument, does not give the court jurisdiction to make an orderunder R.S.C., Ord. 24, r. 10, unless the pleading or affidavit makesdirect allusion to the document or class of documents in question.” The two decisions were grounded on a finding that the plaintiffs did not relyonthe contents of the privileged document, only on its existence. It is clear that theCourt would have found differently if the plaintiffs had been relying, as theRespondents do in the matter before me, on some of the content. 25.In Derby v Weldon (No. 10) [1991] WLR 666 the deponent of an affidavit swornfor a hearing without notice referred to a privileged document to comply with hisduties of full and frank disclosure. Vinelott J. helpfully reviewed the MarubeniCorporation and Tate and Lyle cases as follows: “There are, of course, clearly contexts where a party who refers ininterlocutory proceedings to the fact that he has obtained legaladvice and who states the effect of that advice does not therebywaive privilege. In the common case of an application forjudgment, till normally judgment, till normally summary the plaintiff he has See paragraph 26-16 Phipson on Evidence -16th Edition. Reference to the case made to the parties by the Judge during the hearing. ```
(unreported), 6 November 1986; Court of Appeal (Civil Division) Transcript No. 996 of 1986 in which judgment was given on 6 November, Lawton and Lloyd L.JJ. drew a distinction between a reference to the effect of such advice and the substance or content of it. In that case the plaintiffs sought leave to serve abroad and, in discharge of their duty to make full disclosure of all relevant facts, made reference to advice as to whether the defendants could raise a defence of illegality under the law of Japan. In Government Trading Corporation v. Tate & Lyle Industries Ltd., 19 October 1984; Court of Appeal (Civil Division) Transcript No. 376 of 1984 (a case referred to by Lloyd L.J.) advice of an Iranian lawyer had been referred to in an affidavit filed in opposition to an application for trial of a preliminary issue. It was held that privilege had not been waived. In both those cases what was material in the interlocutory proceedings was the fact that the plaintiff had been given advice to a particular effect and not the substance of the advice or the extent of the instructions given to the lawyer."
Vinelott J. went on to find that the situation was different in Derby as the privilege had been waived because reliance had been placed by the deponent who relied upon the contents of the privileged document for the purposes of the application. In Dunger International Inc. v. Slazetional Ltd., 27 November 1991, the authorities as being "not altogether easy." Waller L.J. felt that there was no 7 Case mentioned in Rubin v Expandable at page 1100. 171213 Henricho Swaby v The Attorney General et al - Judgment Page 16 of 25
need to detail all of the cases in his judgment, although he considered *Derby* and related it to the case before him, stating: "The most formidable authority was the decision of Vinelott J in Derby v Weldon [1991] 2 All ER 908, [1991] 1 WLR 660. The most material passage runs from 767H to 668E. It comes to no more than this. If in interlocutory proceedings a party has waived privilege – in that case that was on a Mareva injunction application – then, that is a waiver for all purposes and the cherry picking principle applies. Whether that will always be right is a matter that I would reserve for future decisions. It is not necessary to say that that will always be right to dispose of this case. If there is to be an exception to that principle it would need to be framed in the following way. It would need to be argued that since it was only for the purpose of the interlocutory proceedings and in relation to an issue in those proceedings that the waiver had taken place the waiver was in some way limited. That was almost certainly not the position in Derby v Weldon since the conversations did relate to the merits of the case as a whole. In this case, again the waiver that was taking place was not taking place simply in relation to obtaining the order from Gibbs J. The waiver that was taking place was taking place by reference to statements that were to be put in as part of the evidence to go to the trial and relating to the merits at the trial." In the therefore me, Mr. Kenr 28 matter beMr. Kenr reliance being placed upon it at the trial of the action and not for an interlocutory
application. This brings it more in line with the position in the *Dunlop Slazenger* case as highlighted by Waller L.J.
In *Dunlop Slazenger* Waller L.J. commented at paragraph 10.7: ``` "The key word here is 'deploying'. A mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test. Instead, the test is whether the contents of the document are being relied on, rather than its effect. The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement. Provided that the maker does not quote the contents, or summarise them, but simply refers to the document's effect, there is apparently no waiver of privilege. This benevolent view has not been extended to the case where the maker refers to the document in order to comply with the party's need to give full and frank disclosure, eg on a without notice (ex parte) application." ``` Waller L.J. highlighted that the authors had correctly identified that the authorities provided for a distinction between a reference to the existence/effect of the document and its deployment.
Waller L.J. concluded that the matter under appeal should be characterised as being a deployment case as the content was referred to persuade the judge to
```html make the interlocutory order sought, as well as being an attempt to put in evidence for the purpose of the trial as it was material for the judge to consider at the trial. Mr. Kennedy rightly contends that in the present matter it is intended that the reference to parts of the privileged advice set out in the affidavit is intended material for the judge to consider at the trial. 31.Mr. Kennedy also adds that great reliance was placed upon the recommendation in the Cabinet Paper, especially in regard to human right issues, and therefore the Respondent should not be permitted to ‘cherry pick’ the disclosure given. When doing so he referred to Nicol J.’s comments at paragraph 12 in Commodities Research Unit International v King and Wood Mallesons LLP [2016] EWHC 63 (QB) when addressing the extent to which privilege was waived: “A client could not 'cherry pick' i.e. be selective and waive privilege in relation to one part of a document (or series of documents on the same topic) while maintaining it in relation to other parts of the same document or same series. On the other hand, if there were severable parts of the document or if there were severable issues in the exchanges with legal advisers, privilege waived in relation to one of those parts or one of those issues, did not mean it was waived as well for the others” Mr. Kghlighted t 32.ennedy hihe“dan tionality casing to thobnitting ingswell at e for of pcheof Lord C propose by referren ge servationars'in a ollowing is erry-pick paragraph 39 in Tweed v Parades Commission for Northern Ireland: ```
``` When one takes into account the proportionality factor, the need for disclosure is greater than in judicial review applications where it does not apply. The duty of candour has been fulfilled by adduction of summaries of the police report, authorised officers' reports and other documents, and the appellant's counsel did not suggest that there had been any deficiency in candour in putting that evidence before the court. He submitted, however, that it is not always possible to obtain the full flavour of the content of such documents from a summary, however carefully and faithfully compiled, and that there may be nuances of meaning or nuggets of information or expressions of opinion which do not fully emerge in a summary. I consider that there is force in this view and that in order to assess the difficult issues of proportionality in this case the court should have access as far as possible to the original documents from which the commission received information and advice.
Waller L.J. at paragraph 11 in Dunlop Slazenger addressed the issue of 'cherry-picking' with reference to the case of and the text in Matthews & Malek, where the authors referred at para 10.17 to the following dictum of Mustill J. (as he then was) in Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [1981] Com LR 1388, which provides as follows: "Where a person is deploying in court material which would otherwise id, the opponent have the opportunity to release from privilege represents the revocation of the party's privilege party has the opportunity to release from privilege represents the revocation of the party's privilege party has the opportunity to release from privilege represents the revocation of the party's privilege party has the opportunity to release from privilege represents the revocation of the party's privilege party has the opportunity to release from privilege represents the revocation of the party's privilege party has the opportunity to release from privilege represents the revocation of the party's privilege party has the opportunity to release from privilege represents the revocation of the party's privilege party has the opportunity to release from privilege 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```html material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood."
Waller L.J. added at paragraph 15: To answer the question whether waiver of part of a privileged communication waives the complete information, it is that dictum of Mustill J (as he then was) which applies. A party is not entitled to cherry pick, and a party to whom privileged information is provided is entitled to have the full contents of what has been supplied in order to see that cherry picking is not taking place. If this material (paras 13 and 14 of Miss Ahmed's statement) had been evidence given at a trial, there really would be no answer to the point that the full information should be provided in order to make certain that cherry picking is not taking place."
Ms. Hoare contended in her oral submissions that there has not been ‘cherry-picking’ and states that the Respondent is entitled to reserve its position until trial on the issue and should not be fettered by the legal advice. Although the relevant information in the matter before me was not deployed at an interlocutory hearing, at paragraph 16 in Dunlop Slazenger, Waller L.J. shared some helpful observations about the approach when a party wished to be able to preserve its position: commented on what should be provided: “There are only two points here which might provide for a different answer. The first is that this information was deployed at ```
```html an interlocutory stage， and the second is that， insofar as it was being put in witness statements， they have not yet been deployed at a trial. In relation to both aspects， what in essence the submission would come to is that at this stage a party is entitled to preserve its position and wait to see what actually happens at the trial in order to see whether that deployment takes place and whether a waiver takes place at the trial. As it seems to me， there is clear authority for the proposition that， if deployment has taken place at an interlocutory stage and waiver of the privileged material has resulted， then the cherry picking principle applied."
The Respondents submit that the references to the legal advice found in the affidavit are insufficient to waive privilege in the document as a whole， as the reference is to its effect rather than to its contents. Although Mr. Howell shares information from the advice by directly quoting from the eight page twenty paragraph legal opinion， it is submitted that they are： “uncontroversial statements of fact， included in the discharge of the Respondents' duty of candour to identify the facts relevant to the decision-making process under challenge， and solely for the purpose of reassuring the Applicant and the Court that there was before the Cabinet material relating to various of the factors that the Applicant complains were not taken into account. The quotations reveal nothing about the way in which the various considerations in the balance， he the advice nea wht Wrt. In their particul factual cor were weighty in the essence of eng the privileged use he circumstances， the Respondents respectfully invite the Court to ```
```html CONCLUSIONS 37. Although there are some extracts which go to effect and not the content of the advice, I note that a number of extracts appear in the section of the affidavit headed "Response to the Applicant's complaint that the Cabinet failed to take certain matters into account." At paragraph 8 of his affidavit Mr. Howell sets out, what he has been advised to be, a number of factors which the Applicant complains in the Judicial Review proceedings were not taken into account by Cabinet when reaching the decision to deport. At paragraph 9 of his affidavit, Mr. Howell states that the factors were dealt with in detail in the Cabinet Paper and/or the legal opinion attached to the paper. In some of the paragraphs thereafter it is clear that part of the content of the advice was shared by him specifically to counter the complaint of the Applicant, as can be seen by the words "in respect of the Applicant's complaint...." that immediately precede a number of the quotations addressing the factors mentioned in paragraph 8 of the affidavit. It was obviously material content of the advice which the Respondents wished to deploy in order to support the version of events that they wish to put before the Court concern taken into binet. 38. Although parts of the affidavit contain quotations that accurately reflect and repeat the detail contained in some of the documentation already provided to the ```
**Grand Court of the Cayman Islands** Applicant, it is clear that it is the content of the advice that is being relied upon, not simply that advice was given and acted upon. For example, in paragraph 20 of the affidavit the extract from the advice goes beyond restating facts and gives an opinion on the weight to be placed on the Applicant’s contentions about his family ties. The conclusions in the advice were also reached on some material not placed before Cabinet including the DCR Home Background Report. I note that that the affidavit makes clear that the Cabinet Paper (with its appendices including a full copy of the advice) was approved without any formal discussion, an illustration that the deportation decision was greatly influenced by the content especially on the issue of potential breaches of s.9 BOR.
Having had the opportunity to review the Legal Opinion I find that there is no merit in the submission made at paragraph 33 and 34 of the Applicant’s Skeleton Argument. There is nothing in the opinion that could lead one to a conclusion, or even to a concern, that a decision to deport had already been made by the time that the legal opinion was requested by the Ministry. The opinion did not fetter Cabinet’s discretion, although it is clear that great reliance was placed upon it by Cabinet. When my discretion is exercised on the basis that it will be for the Court to assess the legal propriety of the decision to deport in the facts of the case. The quoting from the legal advice in 171213 Henricho Swaby v The Attorney General et al - Judgment Page 24 of 25
Mr. Howell’s Affidavit and the paraphrasing its contents amounted to reliance on the contents of the advice to meet the Applicant’s case. As such significant reliance was placed by Cabinet on the opinion attached to the Cabinet Paper and more importantly, as can be seen from the nature of the selective extracts from the advice in its only evidence, namely the affidavit of Mr. Howell, the Respondents are placing such great reliance on the actual advice which they seek to partially deploy to counter the Applicant’s complaints, it would only be fair and just for the full advice to be made available.
Accordingly I order the Respondents to produce for inspection within seven days of the circulation of the sealed copy of this Judgment a copy of the Legal Opinion referenced in the affidavit of Wesley Howell dated 4 September 2017 as contained within the Cabinet Paper 2361/17 at Appendix D.
Unless I hear otherwise from the parties within 14 days of circulation of this sealed Judgment, I will reserve the costs of this application. **E HON MC RICHAMS** **AGE OF TD COURT** **THR JUSTIC(RD WILL** **JUHE GRAN IA** **171213 Henricho Swaby v The Attorney General et al - Judgment** Page 25 of 25