Line to take - LTT111 - Waiver of legal professional privilege – description of partial waiver

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  • FOI/EIR: FOI, EIR
  • Section/Regulation: s42, reg 12(5)(b)
  • Issue: Waiver of legal professional privilege – part 2 of 2 / Description of partial waiver
  • Source: Information Tribunal
  • Details: Kirkaldie / Thanet District Council (4 July 2006); Kessler / HMRC (29 November 2007); Mersey Tunnel Users Association / Merseytravel (15 February 2008); Foreign & Commonwealth Office (29 April 2008)
  • Related Lines to Take: LTT6, LTT15
  • Related Documents: EA/2006/0001 (Kirkaldie), EA/2007/0052 (Mersey Tunnel), EA/2007/0043 (Kessler), EA/2007/0092 (FCO), Awareness Guidance 4
  • Contact: HD
  • Date: 25/06/2008
  • Policy Reference: LTT111
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT


Line to take

Partial waiver will occur where the substantial contents of the legal advice have been disclosed. A mere reference to or a brief summary of the legal advice will not be sufficient to waive privilege but it will always be a question of fact and degree in relation to the specific circumstances of each case.

Further Information

The circumstances in which it will be necessary to consider whether there has been a partial waiver will be quite limited as the principle only applies within the context of litigation. However it is difficult to define what will constitute partial waiver because it will very much depend on the specific circumstances of the case. Further, there is limited guidance from the Tribunal as the cases that have appeared before them have only involved advice privilege but there have provided some general guidance which is considered below.

However, even if the Commissioner concludes that there has been no partial waiver and thus the s.42 exemption is engaged, the nature and extent of any disclosure can still be considered as part of the public interest test.

Waiver is an objective, not subjective principle

The Tribunal In Kirkaldie said that “...waiver is an objective not subjective principle. Whether a party intended to waive privilege in a particular document is not the question. What matters is an objective analysis of what the party has done (Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529)” (para 42). This point is also supported at para 40 of the Kessler & HM Commissioners for Revenue and Customs case.

Therefore even where there has been an inadvertent disclosure to the general public, waiver will still have occurred. It is conceivable however that privileged information may be accidentally disclosed to a limited audience who should realise that the information had been disclosed by mistake, for example disclosure to other solicitors. In such cases there may be scope for the public authority to reassert privilege by taking steps to prevent the further use of that information, by seeking an injunction, and securing the information’s return. Our legal advice is that where there has been any accidental disclosure our starting point should be that privilege has been waived but in the rare circumstances described above we would need to know the outcome of any court action before making a decision.

Advice on a number of issues

Where a document contains legal advice on more than one issue it is possible for there to be waiver in respect of the advice on one issue, whilst preserving the privilege in relation to other distinct legal issues.

Specific disclosure / restrictions as to use

There can be cases where there is limited waiver of privilege, i.e. where the information is disclosed to a specific party for a specific purpose with restrictions imposed on its further use. In such cases privilege can still be asserted in relation to anyone else seeking access to the information.

Disclosure of actual document containing legal advice

If the full original document containing the legal advice is disclosed, then the document has losi its confidential character and legal professional privilege cannot be claimed for any of the advice.

Disclosure of the contents of the advice

For the avoidance of doubt, it is reiterated here that the cases referred to below involved cases of advice privilege but nonetheless, they do offer general guidance.

The Tribunal in Kirkaldie indicated that “...the test for waiver is whether the contents of the document in question are being relied on. A mere reference to a privileged document is not enough, but if the contents are quoted or summarised, there is waiver (Dunlop Slazenger International v Joe Bloggs Sports Ltd [2003] EWCA Civ 901)” (para 26).

In the Merseytravel case, legal advice was contained within a document headed ‘to whom it may concern’. (See LTT15 for details of the circumstances of this case). The document confirms that Counsel’s advice was sought and that Counsel advised that the money provided by the district councils to cover Mersey Tunnel’s operating losses should be treated as a loan to be repaid with interest. The document therefore confirms that Counsel’s opinion was sought and also the conclusion of Counsel’s advice which the public authority used as their justification for a course of action which has continued to date. Reference was also made on Merseytravel’s website to a “legal duty”, the source of which was the legal advice.

The Tribunal agreed with Kirkaldie insofar as they said “...we are not persuaded that limited references to the conclusions of the advice...could amount to a partial waiver...” (para 27). However they were not convinced that the summary of the advice in the ‘to whom it may concern’ document waived privilege because it “...at most provides a brief summary of the conclusion of the disputed advice, but reveals nothing of the reasoning or other options considered” (para 25).

In the Foreign & Commonwealth Office case, the Tribunal relied on an analysis of comparisons between the legal advice and the letter purported to constitute a waiver of privilege prepared b the FCO to conclude that “...we are satisfied that the opinion covers points which do not appear in the letter although...we do not believe the applicant has been misled over the substantive legal position as a result of this...” (para 25). This is despite the fact that the letter in question “...referred expressly, indeed, in the second paragraph, verbatim, to advice received from ‘our legal advisor’ “(para 2).

Conclusion

A mere reference to or a brief summary of the legal advice will not amount to a partial waiver. Further, if the disclosure does not reveal the reasoning behind the conclusion or a considered examination of the relevant case-law, precedent and the way they apply to the case, then waiver will not have occurred.

However if the substantial contents of the advice have been disclosed, then there will have been waiver of the privilege within the document. Unfortunately however they can be no hard and fast rules as the decision will inevitably turn on the specific circumstances of the case. As Tim Pitt-Payne said in his written submissions in the FCO case -

...whether disclosure is of part only of the contents, or of substantially the whole contents, must be a question of fact and degree...

Although an examination of whether there has been only a limited disclosure of the legal advice can always be considered as part of the public interest test.