Q&As

When will a reference to counsel’s opinion in inter partes correspondence amount to a waiver of legal professional privilege? Will the disclosing party be required to disclose the opinion in its entirety?

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Produced in partnership with Ryan Turner of Lamb Chambers
Published on LexisPSL on 18/06/2019

The following Dispute Resolution Q&A produced in partnership with Ryan Turner of Lamb Chambers provides comprehensive and up to date legal information covering:

  • When will a reference to counsel’s opinion in inter partes correspondence amount to a waiver of legal professional privilege? Will the disclosing party be required to disclose the opinion in its entirety?

As a general rule where a party refers merely to the existence of a document rather than its contents, that would not be sufficient to constitute waiver of privilege at any stage either prior to or during litigation.

Where proceedings have not started or there is an open correspondence between the parties during the litigation, parties will often refer to counsel or solicitor’s advice on the merits of a particular point taken by either side to a dispute. It is sometimes suggested that reference to the substance of an advice which falls short of provision of the same would constitute waiver, either express or implied.

It is the view of this author

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