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The latest on legal professional privilege: Recent cases

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14/11/2017

Walker Morris has written previously on the rules and implications of legal professional privilege – the invaluable legal right which entitles clients to withhold communications from a court or third party without any adverse inferences being drawn [1].  Legal professional privilege has continued to hit the legal headlines in recent months, however, and Commercial Dispute Resolution partner Nick Lees provides an update on the latest key cases.

Important protection

The term ‘legal professional privilege’ covers both legal advice privilege and litigation privilege. Legal advice privilege protects communications passing between a qualified lawyer and his or her client [2] if the document has been created for the purpose of giving or receiving legal advice (as opposed to dealing with purely business or administrative matters).  Litigation privilege protects documents created for the dominant purpose of litigation which is reasonably contemplated or existing.

Confidentiality and ‘clean hands’

It is quite well known that a fundamental requirement for legal professional privilege is confidentiality. Any document that has been too widely disseminated or has been made public (for example has been posted online) cannot attract privilege protection.  Lack or waiver of confidentiality can therefore result in a lack or waiver of privilege protection.  A recent case has highlighted, however, a lesser known option for those wishing to restrain the use or disclosure of documents – that is, the court’s equitable jurisdiction to restrain breaches of confidence in relation to documents which have already been disclosed, but which would otherwise be privileged [3].

In Simpkin v The Berkley Group Holdings plc [4] (an employment dispute), the claimant applied to restrain the defendant from relying on allegedly privileged emails.  The defendant argued firstly that the emails in question were not privileged because they were not confidential, and was successful.  (The claimant employee had signed the defendant employer’s IT policy which provided that all emails sent and received on its IT system were company property, plus the defendant’s whole IT department and the claimant’s secretary had direct access to the emails.)  The defendant also argued that the court should not exercise its equitable discretion in favour of the claimant because, as with any other equitable jurisdiction, the usual equitable maxims should apply – including that he who comes into equity must come with ‘clean hands’.

Equity is a concept of fundamental fairness which can be awarded by the court at its discretion, as opposed to a legal remedy that is available as of right to a successful claimant. The idea that anyone looking to equity for a remedy must have ‘clean hands’ and therefore be free of wrongdoing him- or herself is one of a number of guiding maxims which underpin the court’s equitable jurisdiction.

In this case the court found that there were stark differences between what was said in the claimant’s witness statement and what was said in a synopsis document produced by him, both of which related to an issue that was highly relevant to the proceedings. The claimant did not therefore come with ‘clean hands’ and should not have any equitable discretion exercised in his favour.

‘Cherry picking’ and waiver

Even where privilege does apply, it is important to note that it can be waived – even inadvertently. In some instances, parties expressly choose to waive privilege in a communication (perhaps because the letter, email, attendance note or other document contains some information which one or both parties actually wish to place before the court). However it is not generally possible for parties to cherry pick items or admissions within any one communication without waiving privilege in respect of the entire communication.  In fact, attempting to waive privilege of part of one communication can even result in the waiver of privilege in respect of an entire collection of documents.  This doctrine, known as collateral waiver, has arisen because it is important, as a matter of public policy, that a partial picture should not be presented to a court.  The recent case of Holyoake v Candy [5] demonstrates how nuanced the doctrine of collateral waiver (or, the ‘cherry picking’ rule) can be in practice.

Mr Holyoake had alleged that certain threats had been made against him by the defendant and the defendant argued that Mr Holyoake had recently fabricated those allegations. Mr Holyoake therefore chose to waive privilege in some emails referring to the threats, which had passed between himself and his lawyers shortly after the date of the alleged threats.  The question for the court was whether Mr Holyoake was therefore also obliged to give additional disclosure.  For example, had he waived privilege in respect of all communications between himself and his lawyers and/or in respect of all documents relating to the alleged threats in general?

The High Court decided that an application of the collateral waiver doctrine required three questions to be considered:

  1. What was the “transaction” or “issue” in respect of which privilege had been waived and disclosure had been given? Here, that was held simply to be the communication by Mr Holyoake to his lawyers of the alleged threats, and nothing more.
  2. What was the purpose of the disclosure, and did that affect the scope of the “transaction” or “issue” at all? Here, the purpose was merely to rebut a suggestion of recent fabrication and that did not alter the answer to question 1.
  3. Does fairness require wider disclosure? The judge acknowledged that what might strike one judge as fair in one case may not strike another judge as fair in another case, and that such judgments will inevitably be heavily fact-dependent. Where possible, however, it is important to be consistent with previous case law.  In this case the judge was able to ascertain fairness by considering an earlier case on very similar facts, and decided that fairness did not require any additional disclosure.

WM Comment

There are many rules and requirements that underpin legal professional privilege. They are subject to change as the body of law in this area continues to develop, and they can be fraught with exceptions, subtleties and traps for the unwary.  If privilege protection is lost or waived inadvertently, however, the consequences of unwanted disclosure can be devastating to a case.

If you have any queries or concerns in relation to privilege or disclosure, the safest course is to obtain expert advice as soon as possible, and no decision to waive privilege or to disclose documents should ever be taken lightly.

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[1] See our recent briefings: https://www.walkermorris.co.uk/publications/legal-advice-privilege-important-protection-narrow-application/; and https://www.walkermorris.co.uk/publications/ever-decreasing-circles-latest-case-limit-legal-professional-privilege/
[2] both of which entities have been given a narrow definition in binding authority: in R (Prudential Plc  & Anor) v Special Commissioner of Income Tax & Anor [2013] UKSC 1 the Supreme Court confirmed that legal advice privilege does not extend beyond qualified members of the legal profession, even to other professionals such as accountants; Three Rivers District Council & Ors v Governor & Co of the Bank of England (aka Three Rivers (No 5)) [2003] EWCA Civ 474 defined ‘client’, in this context, as only covering those members of an organisation who are actually charged with instructing lawyers.
[3] See ISTIL Group Inc v Zahoor [2003] EWHC 165 (Ch) and Lord Ashburton v Pape [1913] 2 Ch 469 for authority and discussion of this jurisdiction.
[4] [2017] EWHC 1472 (QB)
[5] [2017] EWHC 387 (Ch)

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