In another recent decision in the Norwegian proceedings relating to the collision between the Norwegian navy frigate Helge Ingstad and the oil tanker Sola TS, the Gulating Court of Appeal has held(1) that notes taken by lawyers from crew interviews were legally privileged and such privilege had not been waived by their disclosure in the proceedings of a report referencing content from those notes.


Following the collision, lawyers acting for the owners of the Sola TS, Twitt Navigation Limited (Twitt), and their insurers, conducted interviews of the crew on the oil tanker.

In the proceedings that ensued, the state requested that Twitt disclose those notes. Twitt argued that it was not obliged to do so, claiming legal privilege over the notes.

In the first instance, the Hordaland District Court found that Twitt had consented to disclosing the notes while disclosing a report that referred to the contents of the notes, thereby waiving privilege. Twitt appealed the Hordaland District Court's decision.


On 13 September 2021, the Gulating Court of Appeal overturned the Hordaland District Court's decision, holding that privilege had not been waived.

Were the notes privileged?
The universal principle of attorney-client privilege is reflected in section 22-5 (1) of the Norwegian Dispute Act, which prevents the courts from receiving evidence from lawyers about "something that was confided to them in their professional capacity".

Reiterating the case law, the Court held that, in order for legal privilege to attach, the information must have been confided to the lawyer while performing "work as a lawyer in the true sense". This has to be considered on a case-by-case basis.

As a starting point, the Court found that the information obtained by the lawyers during interviews with the crew on board Sola TS had been provided to them "in their professional capacity", acting as the legal representatives of Twitt.

The Court then considered whether the interviews were conducted "exclusively to survey factual circumstances which could not have legal consequences", and as such would not be considered "work as a lawyer in the true sense".(2) The Court of Appeal found that this was not the case as the information "could have legal consequences" and, moreover, could provide the basis for legal advice in connection with claims arising from both the collision and the ensuing legal proceedings.

The Court also considered the Norwegian Supreme Court's decision in HR-2019-2168-U Cheshire. Here, it was held that ordinary written and signed statements, created with the intention of being disclosed, were not covered by legal privilege. This applied even if lawyers had been instrumental in creating the statements. However, on the facts of this case, the Gulating Court of Appeal found that the notes prepared by the lawyers were not intended to be disclosed, and therefore remained privileged.

Had Twitt consented to disclose the notes?
The Court then considered whether Twitt had consented to disclose the notes, thereby waiving privilege, since Twitt had produced a report in the proceedings that had referenced the notes.(3)

Whether consent had been given had to be considered according to general principles of contract law. Although there are no requirements as to form, the consent must be "fairly clear, decisive and exhaustive", and appear as a renunciation of legal privilege.

The Court held that the sharing of privileged information in itself was not sufficient to establish consent to waive legal privilege.(4)

While the Hordaland District Court had found that consent to waive legal privilege could be inferred, citing, among others, Norwegian Supreme Court's decision in Rt-2009-1204, the Gulating Court of Appeal distinguished the cases on the facts and found that the decision provided little guidance for the question under consideration.

The Court then held that a report could only be seen as giving consent to disclose privileged information if the contents in the report itself were privileged, citing the aforementioned decision in HR-2019-2168-U Cheshire.

The Court did not decide on whether the report itself was privileged, as, in the Court's opinion, the disclosure of the report in any event did not fulfil the criteria of a valid consent to waive legal privilege. In reaching this conclusion, the Court emphasised that the 17-page long report only contained two references to the interviews, and as such could not be regarded as a sufficiently clear consent to waive legal privilege for the more extensive interview notes. That the report itself was marked as privileged and confidential could not be decisive for the question of consent to disclose other privileged documents.

Finally, the Court held that any departure from the protection afforded under attorney-client privileged information required a clear basis, as per, among others:

  • section 211 of the Norwegian Criminal Code;
  • section 95 of the Norwegian Constitution; and
  • article 6 of the European Convention on Human Rights.


This decision provides guidance as to the application of legal privilege in connection with marine casualties. It follows from the decision that lawyers' notes from crew interviews are privileged unless they are intended to be disclosed, as was the case in the Supreme Court decision in HR-2019-2168-U Cheshire where formal statements had been signed by the individual crew member. Furthermore, the decision suggests that the courts will take a relatively restrictive approach to establishing consent by a party to disclose otherwise privileged information.

The decision has been appealed to the Supreme Court.

For further information on this topic please contact Herman Steen, Oskar Otterstrøm or Fredrik Roald Brun at Wikborg Rein by telephone (+47 22 82 75 00) or email ([email protected], [email protected] or [email protected]). The Wikborg Rein website can be accessed at www.wr.no.


(1) LG-2021-115658.

(2) HR-2014-1775-A.

(3) See section 22-5 (3) of the Dispute Act.

(4) See, among others, HR-2013-2652-U.