The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the plaintiffs had waived privilege in relation to the whole document.
Templeman LJ said: ‘In Minter v Priest . . the House of Lords affirmed that a communication between solicitor and his client is privileged provided the relationship of solicitor and client is established and that the communication is such that the communication is ‘such as, within a very wide and generous ambit of interpretation, must be fairly referable to the relationship . . In the present case the relationship of solicitor and client between the American attorneys and the plaintiffs is undoubted. The plaintiffs were seeking and the American attorneys were proffering advice in connection with a business transaction. The fact that litigation was not then contemplated is irrelevant. This appeal may serve a useful purpose if it reminds the profession that all communications between solicitor and client where the solicitor is acting as a solicitor are privileged subject to exceptions to prevent fraud and crime and to protect the client and that the privilege should only be waived with great caution.’
and ‘In my judgment, however, the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading.’ and ‘In interlocutory proceedings and before trial it is possible to allow a party who discloses a document or part of a document by mistake to correct the error in certain circumstances. Where a document has been disclosed as a result of misconduct by the defendants, against the will of the plaintiffs and in any event not by the deliberate act of the plaintiffs, then remedial action both before and during the trial may be possible. But in my judgment the plaintiffs deliberately chose to read part of a document which dealt with one subject matter to the trial judge, and must disclose the whole.’
Judges:
Templeman LJ
Citations:
[1981] 2 All ER 485, [1981] 2 Lloyds Rep 138, [1981] 1 WLR 529
Jurisdiction:
England and Wales
Citing:
Cited – Minter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
Appeal from – Great Atlantic Insurance Co v Home Insurance Co 1981
Lloyd J said: ‘if the principal has held out his agent as having a certain authority, it hardly lies in his mouth to blame the agent for acting in breach of a secret limitation placed on that authority’. . .
Approved – Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) 11-Dec-1978
The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material . .
Cited by:
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 6) CA 1-Mar-2004
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Mayne Pharma Pty Ltd Another v Debiopharm Sa and Another PatC 10-Feb-2006
Defendant’s application in patent revocation claims . .
Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Cited – ZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Evidence
Updated: 09 May 2022; Ref: scu.194267