Developments on Legal Advice Privilege
I was a criminal defence solicitor specialising in large scale drug conspiracies and frauds, violence at all levels, youth justice and the full gamut of criminal work. The issue of waiver of legal privilege is rarely something that I would have to face. However, this is something regularly considered in civil litigation and a new judgment has helped provide some clarity on a nuance of the matter. Having read the background of this case my eyes immediately lit up at the mentioning of the SFO and the criminal proceedings that underlined this judgment and the overall case.
The decision arose in the context of the ongoing litigation between PCP Capital Partners LLP and another v Barclays Bank plc . PCP, an investment consortium claims that in the course of negotiations over a proposed investment by PCP – Barclays made false representations that PCP would receive the “same deal” (receive as much pro rata by way of fees or other payments for investments made) as certain Qatari investors. PCP relied on this information and as a result suffered substantial losses. The allegations related to certain written advisory service agreements (ASA) entered into by Barclays.
In 2016, in separate criminal proceedings bought by the SFO against former Barclays executives, Barclays provided certain documents including the ASAs under a “limited waiver of privilege”. These were subsequently used in open court during the criminal proceedings and PCP argued for further disclosure and inspection in the Commercial Court of these and related documents. PCP stated Barclays reference to these documents triggered a collateral waiver of privilege (a term I had rarely come across in my 8 years of working in a criminal practice).
In his judgment, Waksman J allowed the application for further disclosure of privileged documents on the basis that Barclays had waived privilege in legal advice by frequently referring to the involvement of internal and external lawyers in respect of agreements entered in 2008. The content of the advice was never specifically set out.
The Judge noted that it is not easy to find a clear and concise definition in case law of when a party has waived privilege, but on any view:
- The reference to the legal advice must be sufficient; and
- It must be relied on in some way to support the relevant party’s case on an issue the court has to decide
Using myself (Raph the solicitor) as an example, please find below helpful examples:
“I entered into my boxing contract as a result of detailed legal advice Raph gave me” (Waiver)
Raph gave me advice on my boxing contact. The next day I entered into the boxing contract” (No waiver)
The mere reference is not enough, the reliance on the advice is what opened the door for waiver.
Content v Effect
The judgment appears to provide analysis on the long-standing issue that “waiver cannot arise if the reference is to the effect of legal advice rather the contents.”
The gem of wisdom being whether privilege has been waived depends on an “acutely fact sensitive exercise.” This needs to be applied through the prism of –
- Whether there is any reliance on the privileged material adverted to;
- What the purpose of that reliance is;
- The particular context of the case in question (a wordy was to say a case by cases basis).
Therefore, using this approach on the current case – the reference to the conclusion of the legal advice provided rather than the contents may lead to a waiver of privilege. The Judge found that detailed reference in the witness statements to individuals taking comfort from adhering to their lawyer’s advice amounted to more than a mere reference to advice. The witnesses were relying on the advice to support the bank’s claim that the ASAs were “above board” and had no underlying issues. The reference was significant.
Additionally, the Judge did not accept that a once-privileged document which has lost that status due to being previously deployed, has not lost its relevance from a privilege standpoint.
My perspective on the decision
The decision highlights the importance of being careful when referring to legal advice in third party communications or legal documents. Prior to reading the case and doing any substantial commercial litigation my default view to legal privilege would have been to avoid mentioning / referring to legal advice in any manner in third party communications to stay safe from stepping on a waiver IED. This appears to be the safest and most pragmatic option going forward unless one is meticulous and precise in the language used and decide what reference if any will be made to legal advice. My cautious criminal litigator mind was already on the right path.
If you would like to discuss anything relating to this article, please contact Rapahel Steele at [email protected]