Comments on: Waiver of privilege http://etclaims.co.uk/2008/02/waiver-of-privilege/ tactics & precedents Sun, 04 Dec 2011 17:45:55 +0000 hourly 1 http://wordpress.org/?v=3.1.4 By: Peter Ward, Barrister http://etclaims.co.uk/2008/02/waiver-of-privilege/comment-page-1/#comment-1373 Peter Ward, Barrister Wed, 04 Mar 2009 20:33:40 +0000 http://etclaims.co.uk/?p=175#comment-1373 The Employment Appeal Tribunal has recently considered this very point in Mrs M Brennan & Ors. v. Sunderland City Council & GMB [2008] UKEAT/0349/08 (Elias P.). Although the application to disclose was unsuccessful at both first instance and on appeal, and the judgment itself is a little lengthy it is well worth a read. The key paragraphs are 62-74, and I suggest the test is twofold: I. Has the nature of any legal advice been revealed as distinct from a mere reference to the fact that such advice was received? II. Is the advice now being relied on (or ‘deployed’) as part of a party’s case? Crucially though (and this judgment appears to break new ground) these questions are to be viewed compositely within the overarching principle of fairness, as distinct from two boxes that both require ticking. However, whereas the second question is crucial the interests of fairness prevail over the first. Accordingly even if the answer to the first question is borderline it should still be argued before a court or tribunal that privilege has been waived 'in the interests of fairness' and disclsoure ordered in the other party’s favour. The Employment Appeal Tribunal has recently considered this very point in Mrs M Brennan & Ors. v. Sunderland City Council & GMB [2008] UKEAT/0349/08 (Elias P.). Although the application to disclose was unsuccessful at both first instance and on appeal, and the judgment itself is a little lengthy it is well worth a read.

The key paragraphs are 62-74, and I suggest the test is twofold:

I. Has the nature of any legal advice been revealed as distinct from a mere reference to the fact that such advice was received?

II. Is the advice now being relied on (or ‘deployed’) as part of a party’s case?

Crucially though (and this judgment appears to break new ground) these questions are to be viewed compositely within the overarching principle of fairness, as distinct from two boxes that both require ticking.

However, whereas the second question is crucial the interests of fairness prevail over the first. Accordingly even if the answer to the first question is borderline it should still be argued before a court or tribunal that privilege has been waived ‘in the interests of fairness’ and disclsoure ordered in the other party’s favour.

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