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No Cherry Picking documents by claimants once privilege has been waived

05 December 2012. Published by Sally Lord, Senior Associate

In cases where solicitors are sued by their clients, a common issue to arise is the extent to which the privilege attaching to the solicitor's papers is waived as a result of the Claimant's allegations.

There is a raft of caselaw on this topic, some of which suggests that the privilege remains but increasingly, the majority indicates a general waiver. However, until this case the issue regarding certain documents was unclear, especially in relation to papers in the possession of third parties such as experts or Counsel.

The recent case of Hellard v Irwin Mitchell (click here to read) however, has confirmed that once proceedings have been brought against a firm of solicitors, there is an implied waiver of privilege which also attaches to Counsel's papers.

In this case, the applicant firm of solicitors sought a declaration that the respondent (their former client) had waived legal professional privilege in relation not only to their own files but also to Counsel's advice. It was alleged that the firm had negligently advised the respondent on limitation issues. Both parties referred to Counsel's advice in pleadings however the respondent claimed Counsel's files were privileged.

It was held that an implied waiver is affected when proceedings are issued against a firm of solicitors, extends to working papers and deliberations of Counsel, including those papers to which the solicitor had not been privy.

This case was distinguished from Paragon Finance PLC & Ors v Freshfields (click here to read) where disclosure of files of new solicitors was sought, and denied. In that case, privilege was still intact between the claimant and their new solicitors. Privilege had only been waived in respect of communications with the defendant solicitors until they had ceased acting.

A good sign for solicitors in Hellard is the focus on fairness by the Court when assessing the extent of waiver of privilege. It would not be fair to solicitors if claimants are permitted to cherry-pick which documents can be withheld from the proceedings. Counsel should however be aware that in these circumstances (even working papers that the parties have not seen) are disclosable as soon as proceedings are brought and privileged is waived.