Some aspects of waiver of litigation privilege in commonwealth jurisdictions

• Author: Vanessa Kodilinye
• Position: LL.B.(Hons), LL.M., Attorney-at-Law (Barbados)
• Pages: 246-261

SOME ASPECTS OF WAIVER

OF LITIGATION PRIVILEGE IN

COMMONWEALTH

JURISDICTIONS

VANESSA

KODILINYE*

In the recent English Court of Appeal decision in

Breeze

v.

John

Stacy

and Sons

Ltd.,1

it was held that a solicitor who had, by mistake, exhibited documents to

an affidavit in an application to strike out a personal injuries claim, could not

claim legal professional privilege with respect to those documents. The Court

took the view that a solicitor had no duty, in the face of

a

mistake on the part

of the other party's solicitor which was less than obvious, to inquire of that

party whether privilege had been waived deliberately. This decision is in line

with the previous authorities, held to have been unaffected by the new Civil

Procedure Rules, which had established that the categories which privilege

will be deemed not to have been waived by disclosure arc confined to cases of

fraud and obvious mistake, and ought no to be extended.

In the Breeze case, the defendant sought to create a third category where

waiver will not apply. It attempted to argue, without success, that there was a

positive duty on a solicitor receiving documents which may possibly be

protected by legal professional privilege, but to which there were no claims of

privilege, to inquire of the opponent's solicitor whether privilege had been

waived or whether there had been an inadvertent disclosure of those docu-

ments, regardless of whether the mistake was obvious. The court's decision in

*LL.B.(Hons),

LL.M.,

Attorney-at-Law (Barbados).

1

The Times, 8

July,

1999.

2

There are two

Categories

of

legal

professional

privilege:

(1)

communications

between

a

lawyer

(or

agent acting on

his

behalf) and the client,

regardless of

whether

litigation

is

contemplated

or

pending before a court of law; (2) litigation privilege, where

a

document has come into

existence

with

a

view to the lawyer conducting

litigation.

This article is concerned only with

waiver

in the second category of

legal

professional

privilege.

Issues

relating to litigation

privilege

most often arise in relation to reports or other information provided by third patties.

3

See

generally Civil

Procedure,

2nd

edn.,

313-27 (London; Sweet and Maxwell,

1999).

the Breeze case is consistent with the warning expressed by Slade, L. J., in

Guinness Peat Ltd v. Fitzroy Robinson Partnership (a firm) that parties to

litigation should take great care in the preparation of their lists of documents

and in offering inspection of the documents disclosed, since where a particular

document is referred to in the other side's list, without any claim of privilege,

the party to whom disclosure has been made is entitled to assume that any

privilege which might have otherwise been claimed has been waived.

This article address some aspects of waiver of privilege not only by mistake

bur also by intentional disclosure, and,

as

a preliminary issue, to identify briefly

the circumstances in which a document will be held to be privileged.

Is THE

DOCUMENT

PRIVILEGED?

Before any issue of waiver of legal professional privilege can arise. It is necessary

to ascertain whether the document is one to which litigation privilege applies.

This involves looking at the substance of the document and the circumstances

in which the document came into existence: in particular, whether litigation

was in progress or was contemplated at the time the document was created, as

well as the purpose for its existence. So, for example., where an insurance

company instigates a preliminary report on the cause of a fire which has

destroyed premises, that report will not attract litigation privilege on the

ground that it was prepared for the purpose of contemplated litigation; since

4 [1987] 2

All

E R 716 at 730.

5 It is a common practice in New Zealand for trial judges to inspect documents in order to

determine whether they are privileged or not: see

Taranaki

Co-operative

Dairy Co

Ltd

v.

Rowe

[1970] NZLR

895;

Fletcher Timber

Ltd v.

Attorney-General

[1984]

1

NZLR 290.

As to whether legal professional privilege attaches

to

photocopies of a document where the

original document

is

not privileged, the approach taken

by

the Australian courts differs from

that of

the

English

courts.

In Australia such photocopies attract legal professional privilege,

even though the original document may nor be privileged, if the purpose of making the copies

is

solely

for legal advice. There, the focus

is

on the communication rather than the physical

document

itself,

since legal professional privilege is not seen primarily

as

an evidentiary rule

(see

Commissioner

of

Australian

Federal

Police

v.

Propend

Finance

Pty

Ltd(1996-1997) 188

CLR50lat 552). However, in England, where issues of legal professional privilege are Treated

as matters of evidence, rather than of substantive law. the conns' view

is

char photocopies

cannot attract legal professional privilege if the original document

is

not itself privileged

because, under the best evidence rule,

a

subpoena

duces tecum

can be issued to compel

compulsory disclosure of the original document.The focus

is

on the physical

piece

of

document: see Lord Denning

M.R.in

Buttes

Gas

& Oil

Co

Ltd

v.

Hammer[No.3] [1981]QB

223

at 244.