Joint privilege and waiver of legal advice privilege

http://www.bailii.org/ew/cases/EWHC/Ch/2014/2294.html 

The second defendant (A) in this case instructed a firm of solicitors. A partner at the firm acted for her, whilst an assistant subsequently acted for another connected party (B). When a potential conflict of interest arose, the partner ceased to act for A. The issue in this case was whether joint interest privilege has arisen (with the effect that each party can obtain disclosure of the other’s (otherwise privileged) documents). Simon J held as follows:

  1. Although A and B had a joint interest, A was able to maintain the legal advice privilege in relation to her original instructions to the partner and in relation to the advice she received (which was before the joint interest arose). The judge summarised the legal position as follows: “First, the joint interest must exist at the time that the communications which are in issue come into existence. Secondly, the communications must have come into being for the furtherance of the joint interest. Thirdly, it remains unclear whether a client is necessarily prevented from asserting privilege in advice he has obtained simply because someone else, who was not a party to the original lawyer-client relationship, can assert a joint interest in the advice”.

Here, A had sought legal advice before any question of joint interest had arisen and the partner remained bound by a duty of confidentiality to A even after ceasing to act for her. If he felt that there was a conflict between his duties, he ought to have ceased acting for both A and B.

  1. Had the privilege been lost, since it had come into the hands of B? The judge said that the starting point is that the court will normally intervene to prevent the use of the confidential information and that it is not concerned with a balance between the public interest in the emergence of the truth (on the one hand) and the maintenance of confidentiality (on the other). As a result, to the extent that the relevant material had come into the hands of B, an order was made maintaining its confidentiality and precluding its use. Although A would normally be expected to act promptly - seeking an undertaking not to use the relevant information before any application is made to court - that did not matter here because an undertaking would clearly not have been given.

COMMENT: The general rule is that only the owner of the privilege (or his agent, acting with express or implied authority, e.g. his solicitor) can waive privilege. However, here, the solicitor was no longer acting for A when the privileged document was given to B and that would explain why the judge was able to hold that there had been no waiver. However, it is interesting that it was also held that a court should intervene to prevent the use of confidential information. The general principle is that privilege is waived where confidentiality in a document is lost. In reaching his decision, Simon J referred to the decision of Collins J in Istil Group v Zahoor [2003], but Collins J had apparently been referring to the situation where the recipient was aware of an obvious mistake and had acted unconscionably, which was not the situation in this case.