- It is important for all solicitors to maintain awareness of the more complex issues surrounding legal professional privilege.
- In professional negligence litigation, client privilege will be waived if the cause of action calls into question the correctness of the solicitor’s advice or conduct.
Legal professional privilege is a familiar concept to solicitors. Generally it belongs to the client; however there are circumstances where the client is not entitled to object to production of documents on the ground of legal professional privilege. ‘Issue waiver’ arises when a client loses the entitlement to rely upon client legal privilege over the issue in question by reason of conduct on the part of the privilege holder. Most commonly this arises where advice given by a solicitor to a client is critical to an issue in the proceedings, or where a client sues their former solicitor for negligence. Issue waiver is particularly relevant in the context of avoiding an unexpected personal costs order.
Waiver of privilege
In a recent class action against a pharmaceutical company, the defendant raised a limitation defence and the court heard the defence separately as a preliminary point. This required evidence of the date that each plaintiff acquired the knowledge relevant to the cause of action. The obvious source of knowledge was advice from the plaintiff’s own solicitor. The solicitor objected to production of the relevant material on the basis of the client’s legal professional privilege.