Legal privilege: re-examining legal advice and waiver

Written on 24 Sep 2020

Litigating parties will often be keen to limit the extent of disclosure that they will need to provide during the case. This area generates frequent, and sometimes conflicting, case law. That trend had continued over the last few months.

In PCP v Barclays, a witness statement provided by the defendant referred to legal advice obtained by the defendant. The issue in this case was whether that amounted to a "collateral waiver" of legal advice privilege, which would mean that the advice had to be disclosed in full, in order to avoid "cherry picking".

Prior case law has drawn a distinction between referring to the content of legal advice (which will usually amount to waiver) and to the effect or outcome of that advice (which usually will not).

In this case, Waksman J reiterated that this distinction cannot be applied mechanistically. The court will need to assess:

  • whether reliance is placed on the privileged material;
  • what the purpose of that reliance is; and
  • the particular context of the case in question:

As the judge explained: "This is an acutely fact-sensitive exercise: To be clear, this means that in a particular case, the fact that only the conclusion of the legal advice referred to is stated as opposed to the detail of the contents may not prevent there being a waiver".

On the facts of this case, there had been a waiver. The witness statement had referred to legal advice being received, but not the content of that advice. Nevertheless, the judge concluded that the witness was relying on the reference to this advice to support the assertion that "whatever was done was approved as lawful by the lawyers". Accordingly, the only reason the advice was referred to was to assist the defendant on the merits of its case.

This case might be contrasted, though, with that of Perry v National Crime Agency [2014] where a party referred to legal advice received in order to show why it considered that a certain legal position existed. There, no waiver was established, even though the reference was made in order to assist the party on the merits of its case.

Comment

This latest case emphasises the importance of examining the particular facts of each case and that therefore introduces greater uncertainty into the issue of waiver. Great care should be taken when referring to legal advice received from a lawyer. Any reference to legal advice should generally be omitted, if possible, and left to the court documents drafted by lawyers. This can be extremely difficult, if not impossible, where the witness has to give details of the source of their information and belief in a witness statement.