Privilege—loss or waiver of privilege
Privilege—loss or waiver of privilege

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Privilege—loss or waiver of privilege
  • Ways in which privilege can be lost
  • Who can lose or waive privilege?
  • Intentional waiver of privilege
  • Limited waiver of privilege
  • Implied waiver
  • Implied waiver by reference to privileged documents
  • Collateral waiver
  • Accidental or inadvertent waiver of privilege
  • Sending privileged documents
  • more

This Practice Note looks at loss of privilege in civil litigation in the context of legal professional privilege (LPP) and in particular considers the concept of giving up privilege, different ways in which LPP, encompassing legal advice privilege and litigation privilege, can be lost or waived and who can lose or waive the privilege. It covers intentional waiver of privilege, consent to waive or give up privilege, giving limited or partial disclosure of privileged material, the issue of ‘cherry picking’ and implied waiver of privilege. It also addresses collateral waiver, accidental or inadvertent waiver (sometimes called ‘inadvertent disclosure’ or loss of privilege through inadvertent inspection) and provides guidance on what to do if you receive privileged documents and how to make applications to use privileged documents seen by mistake under CPR 31.20 and conversely, if you send privileged documents by mistake, injunctions to restrain the use of or reliance on inadvertently disclosed documents and general practical tips. It also considers privileged material wrongly used by a public body and a solicitor’s duty to former clients to preserve privileged information.

Note: this Practice Note only considers waiver in relation to documents protected by legal professional privilege (LPP). For guidance on:

  1. waiver of without prejudice privilege, see: Without prejudice communications—Waiving without prejudice privilege

  2. loss or waiver of common interest privilege and joint privilege, see: