The collateral waiver principle

The general rule in relation to legal professional privilege is that confidential communications between lawyers and clients are protected.


However, recent case law has tackled situations where privilege has been waived and how far the waiver extends to surrounding communications and instructions, otherwise known as the “collateral waiver” principle.


It is imperative that lawyers and clients understand the parameters of privilege, and waiving privilege, not only when a case has been issued, but also in the early stages of contemplating litigation.


In a recent case, legal advice was summarised in a witness statement which was filed in support of an application. While this advice had therefore been disclosed voluntarily, the court surmised that all surrounding correspondence and instructions relating to the advice must also be disclosed – this is the effect of the collateral waiver principle.


If a party waives privilege over a particular document or advice, or even parts of these, they may also be required to disclose other privileged material relating to that same aspect. This is particularly the case when using the material to advance their side of the case. The guiding principle in relation to collateral waivers is to consider the “fairness” in relation to the proceedings – take into consideration the extent of the reliance on the previously privileged material, the purpose of that reliance and the particular context of the case.


Therefore, any decision to refer to material which may be protected under legal professional privilege must be considered very cautiously.


If you need assistance with a potential, or ongoing, legal dispute, please feel free to contact Guy Davis at [email protected] to assist you.