Privilege update

The recent case of Tchenguiz v Imerman [2009] EWHC 2902 gives guidance on when lawyers' annotations (in particular highlighting or underlining on documents) are protected by legal professional privilege. It is well settled that pre-existing documents do not become privileged just because they are submitted to lawyers for the purposes of advice or litigation. However, annotations or markings which "give a clue" to the trend of advice being offered can attract privilege (Lyell v Kennedy (No 3) (1884) 27 Ch.D 1, 26 per Cotton LJ). Eady J clarified the extent of this rule in Tchenguiz.

In Dore and ors v Leicestershire County Council and ors [2010] EWHC 34 the High Court recently addressed waiver of privilege. The court ruled that it was not appropriate to order further disclosure of privileged documents on the basis of previous waivers as each transaction to which waiver applied had been limited and fairness did not require further disclosure. We address these cases in turn below.

Tchenguiz v Imerman

Facts

The parties were involved in a dispute in the High Court and a disclosure order was agreed between the parties. The claimant alleged that the defendants failed to disclose documents and sought an order that unless they disclosed the documents concerned, their defences should be struck out and costs awarded on the indemnity basis. The defendants relied, amongst other things, on a proviso in the order relating to legal professional privilege. They claimed that various markings or annotations on the documents made by their barristers attracted privilege.

Decision

Eady J did not accept the proposition that underlining or highlighting documents would, in itself, give rise to legal professional privilege. The judge observed that there are all sorts of reasons why solicitors or counsel might underline or highlight a document and, save in very specific circumstances, one would not be able to draw any inference as to the trend of their advice.

Another argument advanced by the defendants related to the unmarked pages, namely that it would be possible to infer that these were considered not to be significant – thereby giving some clue as to the nature of the advice being given or strategy recommended. The judge rejected this argument, noting that a page should not be regarded as of no significance merely because it had not been annotated. The judge noted that Lyell v Kennedy concerned extracts of documents copied from public registers in which the very act of selecting those extracts could be taken as indicating the trend of legal advice or "giving a clue". On the facts of the instant case, the 'selection' doctrine did not assist the defendants, since they did not come into their possession by a process of selection. It would provide no excuse for refusing to deliver up either annotated or unmarked pages. The only relevant justification would be in respect of any actual annotations made by lawyers or any expert consulted by them, which clearly attracted legal professional privilege.

Dore v Leicestershire County Council

Facts

The underlying dispute concerned community facilities in a school and access to the same. The local authority retained a legal executive and later a firm of solicitors to advise them. The firm's advice was referred to in a number of reports which were later disclosed. An application was brought by the defendants to maintain privilege in correspondence and documents relating to their obtaining of legal advice. The claimants submitted that privilege had been waived because it had been waived in other privileged material (ie the reports) and the transaction to which the waiver applied should be treated as all the legal advice received.

Decision

The application was granted. The court was not persuaded that the transaction should be taken as being the legal advice across the period, or the legal advice in relation to the school and community dispute in general. The correct approach was to examine the relevant acts of waiver and put them in context. On the facts there was no waiver of privilege going beyond the acts and documents relied upon. Whether privilege had been waived depended on what was said and the purpose for which it was said. There was nothing said that had created a fresh waiver or impliedly extended the transaction in respect of which any previous waiver had taken place.

Comment

The ambit of privilege is an issue close to the hearts of in house counsel, experts and practitioners alike. From a practical perspective, lawyers and experts should be aware that unless their markings clearly demonstrate the nature of their advice, the document will not attract privilege. The courts will not tolerate attempts to cloak documents in privilege merely because they have been received and reviewed by lawyers. Something substantive pertaining to the nature of their advice is required. As regards waiver, privilege can be waived expressly or, as alleged in the instant case, impliedly or collaterally. The question whether waiver has occurred depends on the nature of what has been revealed and the circumstances in which it is revealed. The courts will be slow to find a blanket waiver in relation to legal advice where the express waiver is limited to particular documents and the facts do not support a wider interpretation.