Whether legal advice privilege had been waived


The defendants sought disclosure of legal advice obtained by the claimant. The defendants had  applied for costs on  an indemnity basis and so the issue arose as to whether the claimant had conducted litigation unreasonably. The claimant resisted that application and filed a  witness statement which stated that, “having received Israeli legal advice (in respect of which privilege is not waived) [the claimant] considered” that a certain legal position existed.  The defendants argued that the claimant had thereby waived privilege because it had disclosed not  only the existence of legal advice but also the content of that legal advice.

It has been established by caselaw that where some disclosure has occurred, and it would be unfair not to order the whole of the relevant information,  there will have been waiver of the wider information. What is key is whether  the substance, or  merely the effect, of the advice has been disclosed and whether it has just been referred to or whether it has been relied upon.

Wilkie J agreed with the claimant that it had only stated that legal advice had been received and  that the receipt of that advice was part of the context in which it formed its view about the  relevant legal position. The witness statement had fallen short “of even identifying for the reader  the effect of the independent Israeli legal advice received, let alone deploying it”. Accordingly, there had been no waiver.