Privilege: Bye bye privilege...

In D (a child), the Court of Appeal has confirmed that where the nature of legal advice is described in a witness statement, legal advice privilege is waived when that witness statement is served on the other party.

Summary of the case

This case relates to childcare proceedings (but applies to ET proceedings as well), where one of the parties had included details of when she received advice from her solicitor and barrister.  She served this witness statement on one of the other parties and the Court considered that it constituted a waiver of legal privilege.  The witness statement demonstrated that there had been a “paradigm shift” of her position, compared to a previous statement.  As a result, the Court ordered her to disclose the advice and the circumstances in which the second witness statement was drafted.  It was confirmed that by just mentioning that a witness has acted on legal advice, is unlikely to constitute a waiver.  However, if the nature of the advice or the advice itself has been revealed, this will lift the protection privilege provides. 

What does this mean?

Whilst this case refers to childcare proceedings it is a useful reminder that when preparing documentation with summaries of legal advice, if this is sent to the other side in proceedings, legal or litigation privilege is likely to be waived and as a result further disclosure of documents, which may or may not assist, may be required.