Waiving privilege: Case update

by | Oct 2, 2017 | Blog Posts

With so many steps to follow, litigation can be a minefield at times. Issues can arise at any time. For example, once proceedings have been issued and defended, the parties will be expected to disclose documents in their possession. A recent case looked in depth at disclosure and what can go wrong.

What is disclosure?

In most fast-track and multi-track cases, the parties must disclose relevant documents to their opponent. In most cases, the court will order that Standard Disclosure takes place. This essentially means that the parties make a list of all disclosable documents to give to their opponent. Disclosable documents include those:

  • On which you rely;
  • Which adversely affect your case or another party’s case;
  • Which support another party’s case; and
  • Which a practice direction requires you to disclose.

The next step after disclosure takes place is inspection. This involves each party asking the other to see any documents on the disclosure lists.

What is a privileged document?

Privilege’ allows a party to withhold some documents from the court and their opponent. There are a few types of privilege which include:

  • Legal advice privilege: confidential correspondence between a client and their lawyer, for the purpose of giving or receiving legal advice about the matter.
  • Litigation privilege: confidential correspondence between a client and their lawyer or between either the lawyer or client and a third party. The document should be in relation to existing or likely litigation.

Parties must disclose privileged documents, but they can refuse to allow inspection of any privileged document. A party can waive privilege should he decide that he is happy to show his opponent and the court the document. It was this that was looked at in the recent case of Atlantisrealm Ltd v Intelligent Land Investments (Renewable Energy) Limited [2017] EWCA Civ 1029.

Atlantisrealm Ltd v Intelligent Land Investments (Renewable Energy) Limited.

During the proceedings, the defendant’s solicitor inadvertently sent a privileged document by email to the claimant. Upon discovering their error, the defendant applied to court for an injunction requiring claimant to delete the email. The High Court however refused to grant an order for injunctive relief. The defendant appealed this decision.
The appeal was allowed. Jackson LJ held that the defendant had not deliberately waived privilege. The reason being was that the email had mistakenly been marked as disclosable by a junior solicitor and was subsequently disclosed and inspected. While the error was not immediately apparent, a partner at the claimant’s solicitor’s firm did notice the error. Jackson LJ said that if the inspecting solicitor was unaware of the mistake, but a colleague notices it before the privileged document can be used, it becomes an “obvious mistake”. The court then has a discretion to prohibit the use of the document, which it did in this case.
The court made it clear that parties should always try to co-operate with each other and act honestly when it comes to disclosure and the inadvertent inspection of a privileged document.
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