Background
The applicant sought an order for inspection of a series of documents that contained legal advice received by the respondent, and which had been referred to, by the respondent, in a sworn replying affidavit in the High Court proceedings. The respondent made various references to the fact that their position in the proceedings was based on legal advice.  These references were made in two press releases, correspondence between the parties and in an affidavit sworn by the respondent.

Submissions
It was not in dispute that it was permissible for the respondent to refer to the fact that legal advice was obtained. The applicant emphasised the fact that the respondent had gone further than a mere reference, arguing that some of the content of the legal advice had been deployed for the respondent’s benefit and for the purpose of bolstering their case. The applicant argued that confidentiality could not be asserted by the respondent over the legal advice whilst it simultaneously deployed the contents of the legal advice in furtherance of its objectives in the proceedings. It was the applicant’s case that the respondent had waived any legal privilege associated with the legal advice. 

The respondents relied on four central arguments to defend the application. First, it had no choice but to refer to the legal advice to respond to the applicant’s reference to the legal advice in his pleadings. Second, it referred to the legal advice to contextualise a change of approach in its interpretation of legislation. Third, it disputed that the legal advice was “deployed” to favour their position. Finally, it argued that it did not seek to defend the substantive proceedings on the basis that weight must be given to the legal advice concerned. Without prejudice to these arguments, the respondent made a further argument denying that earlier legal advice had been deployed at all. The respondent also noted that it had expressly reserved its right to assert privilege in respect of the legal advice.

Decision
The Court emphasised that an order for inspection should only be made where the Court is satisfied that the order is necessary to fairly resolve the action or minimise costs.  Ultimately, the Court was satisfied, following a review of the relevant authorities, that the respondent had waived privilege over the legal advice the subject of the inspection application.

The Court held that the lack of any express waiver of privilege does not determine whether privilege is impliedly waived. The Court also rejected the respondent’s contention that it had no alternative but to refer to the legal advice obtained, for two reasons. Firstly, the respondent had sought to explain its position by reference to legal advice in press releases and email correspondence with the applicant’s solicitors which pre-dated the proceedings.  Secondly, the Court found it “significant” that the respondent went further than simply confirming legal advice was sought or relied upon but provided additional details that exceeded the information previously disclosed. The affidavit evidence highlighted a legal disagreement with their original advice, referred to a determination and referred to advice which had no relevance to the situation of the applicant.

The Court concluded that there had been a deployment of legal advice for the litigious advantage of the respondent and that the privilege had been waived.  The Court emphasised that, even if the deployment was not specifically or expressly to the advantage of the respondent, it would be unfair to permit the respondent to deploy the legal advice without granting the applicant an opportunity to ascertain the weight or meaning to be given to the legal advice.

The Court made an Order pursuant to Order 31, rule 18 of the Rules of the Superior Courts directing the respondent to allow the applicant to inspect all documents pertaining to the legal advice referred to in the respondent’s affidavit.

Commentary
This case underscores the critical significance of safeguarding legal privilege and highlights the potential risk involved in referencing documented legal advice, which may inadvertently lead to a finding of an implied waiver of legal professional privilege. 

If you would like to discuss any of the issues raised in this update in more detail, please get in touch with the authors or any member of our Litigation, Dispute Resolution and Investigations Group.

The authors would like to thank trainee Sydney O’Shea for her contribution to this briefing.