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Once privileged, always privileged… unless and until waived

“I take it that, as a general rule, one may say once privileged always privileged.” This principle, articulated by Sir Nathaniel Lindley MR in the 1898 decision in the case of Calcraft v Guest, is a fundamental aspect of privilege. It is based upon the principle that a client must be free to consult their lawyer in confidence without fear of disclosure. Its importance was explained by Lord Taylor of Gosforth CJ in R v Derby Magistrates’ Court ex p B:

“The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”

This public policy justification for privilege formed the basis for the Court of Appeal’s decision in Addlesee v Dentons Europe LLP. The question posed to the Court of Appeal was “what happens to legal advice privilege attaching to communications between a company and its lawyers, once that company has been dissolved?”

Lewison LJ gave the leading judgment, with which Floyd and Hamblen LJJ agreed. He concluded that the documents of a dissolved company remain privileged, regardless of whether there is anyone entitled to assert that privilege. Lewison LJ found that once privilege has attached to a communication, it will only cease if and when waived by the client. Because privilege attaches to the communication (rather than to the person or company), the immunity from production attaches to the communication and not to the client. As a result, if the client ceases to exist, the only question is whether there is anyone who has the right to waive the immunity (for example if the right had passed to the Crown as bona vacantia). The decision overturns Garvin Trustees Ltd v The Pensions Regulator.

Unless and until waived

Back to Sir Nathaniel. After making his declaration on the absolute and enduring nature of privilege, he went on to explain, “I do not mean to say that privilege cannot be waived”. It is well known that a party can waive privilege by disclosing the privileged material, either purposefully or inadvertently, for example to a third party, to the public, or to the court. If the confidentiality of the material is lost, so too is the privilege. It is also well known that where a party waives privilege, it may be required to disclose further privileged material under the principle of collateral waiver, where a partial voluntary disclosure results in unfairness or misunderstanding. But courts will not easily find that privilege has been waived, whether by loss of confidentiality (on purpose or by mistake) or collateral waiver. Instead, they seek to uphold privilege where possible and to limit any waiver to the necessary material. Three recent decisions illustrate this point.

In SL Claimants v Tesco plc; MLB Claimants v Tesco plc, the claimants applied for the disclosure of a privileged note of an interview, arguing that privilege had been waived because the note had been provided to the Serious Fraud Office under limited waiver and was deployed in open court during criminal proceedings, meaning the note had lost confidentiality. But Hildyard J disagreed. He held that the confidentiality of the document had not been lost and declined to order its disclosure. He explained the distinction between the information contained within a document and the document itself. In this case, the references to the document did not amount to a loss of confidentiality of its contents.

In Raiffeisen Bank International AG v Asia Coal Energy Ventures Ltd, the appellants argued that “legal professional privilege [does] not extend to a communication which the client instructed the solicitor to repeat” (in this case, client instructions to its lawyers regarding the holding and transfer of escrow monies which the lawyers then conveyed to the bank). Males LJ dismissed the application for disclosure and confirmed that a statement by a solicitor to a third party as to their client instructions does not automatically, and without more, give rise to a loss of confidentiality in the documents which contain or evidence those instructions.

In its 28 January 2020 decision in The Civil Aviation Authority v The Queen on the application of Ltd, the Court of Appeal found that the voluntary disclosure of a privileged communication did not result in a collateral waiver. In this case, a privileged email was disclosed in order to compare the language used with the language used in a non-privileged email (in order to demonstrate a distinction). Hickinbottom LJ concluded that the “modest voluntary disclosure” did not result in a collateral waiver, that the voluntary disclosure was restricted to the email in question, and that “[f]airness does not require more”.

These cases demonstrate that the courts will robustly uphold the age old “once privileged always privileged” principle, but also that privilege, once established, is not easily waived. Establishing privilege in the first place, of course, is not so simple.

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