Privilege is a legal doctrine under which certain communications, made within the context of certain relationships, will be sheltered from disclosure to any other persons. In the legal context, written and verbal communications that may be used to prove or disprove a material fact at issue in litigation must be produced for the opposition's inspection with the exception of privileged communications.
There are three situations in which privilege may be found to have been waived:
- Voluntary waiver;
- Implied waiver; and
- Inadvertent waiver.
In the recent case of Long v.
In this action the plaintiff,
In
In response,
The chambers judge declined to make the order, and
The Court of Appeal agreed with the trial judge, finding that "[o]n no rational understanding of the law could the basis upon which
The Court of Appeal reviewed the case law and reiterated that to give rise to an implied waiver, it is not enough that the party asserting privilege (1) has put its "state of mind" in issue, or that it (2) had obtained legal advice about the transaction in question. There is a necessary third element: the party (3) "must voluntarily inject into the litigation legal advice it received or its understanding of the law before waiver can be implied", something that could be done through pleadings, evidence or argument asserting reliance on legal advice.
In this case the
Although
Where legal advice may have influenced a party's "state of mind" on a material issue, it is inevitable that upholding the privilege will confer a litigation advantage on the party claiming it because the other would be denied access to relevant information about the opposing party's state of mind. ... But it does not follow from this that that litigation advantage is "unfair".
The court held that a litigation advantage could not be described as "unfair" when it resulted from the recognition and protection of a fundamentally important principle in the legal system. Furthermore, protecting privilege in those circumstances did not raise an issue of inconsistency because the party asserting the privilege was not relying on the advice it received to justify its conduct at the same time as it shields that advice from disclosure.
The Court of Appeal further considered whether litigation privilege over the documents in the Royalty Action had expired. It noted that although the Royalty Action itself had ended, the litigation that gave rise to it remained pending or might reasonably be apprehended. The claim in the Fraud Action arose from the same juridical source as the Royalty Action, involved the same parties and arose from the same cause of action. Much, if not all, of the same evidence was relevant to both actions. The Court of Appeal held that in such circumstances, the underlying purpose of litigation brief privilege, namely the protection essential to the proper operation of the adversarial process, continued. The Court of Appeal further noted in obiter that proceedings that raised issues common to the initial action and shared its essential purpose would qualify for a continuation of litigation privilege as well.
Long is a useful summary on waiver issues that might be expected to arise in professional negligence and bad faith actions.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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