This Practice Note considers the concepts of joint privilege and common interest privilege, including where they are relevant, how they arise, their key features, how they operate, examples and how they can be waived. The interest in privileged documents of more than one party Joint or common interest privilege may arise where two or more parties claim the right to assert privilege in the same documents. The circumstances of such privilege will depend on parties’ interest in the subject matter and their relationship among other factors. The notion of joint privilege is that parties have jointly retained legal advisers or they have joint interest in legal advice. Joint privilege may be asserted to enable a party to gain access to privileged information held by another party. Common interest privilege may arise in respect of communications between parties sharing the same interest, even in circumstances where there is no joint privilege, for example, neighbours complaining of a nuisance that affects both equally but where only one is the claimant. It allows a party voluntarily to disclose

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. Note: this Practice Note only considers waiver in relation to documents protected by LPP. For guidance on:

This Practice Note looks at privilege and confidential information in the context of a client-solicitor relationship where that relationship no longer exists. In particular, it asks to whom the privilege belongs generally and in any subsequent litigation, and whether a former client can prevent their former solicitor from acting for another party on grounds of privilege or breach of confidence. Who does privilege belong to in any subsequent litigation? Legal professional privilege always belongs to the client—see further: Privilege—general principles—Who does privilege belong to? Further, once a communication is privileged, it will generally always be privileged—see further: Privilege—general principles—How long does privilege last? That point was illustrated by Kousouros v O’Halloran, where it was held that a party retained the benefit of legal advice privilege in a document that had been disclosed to an opponent by a former solicitor, even after the solicitor’s retainer had come to an end. The underlying dispute was between a brother and sister who had been allocated equal shares in their father’s estate under his will. Initially, the solicitor

Law360: A shipbuilding company is seeking to dodge having to pay approximately US$2bn in damages awarded to Mozambique over a bribery scheme that wrecked the country's economy, urging a court to stay enforcement of the judgment to await the outcome of any appeal.

Privity, or privity of contract, is the general principle that a contract agreed between the parties to the contact cannot bind third parties.

The privity of contract rule means that only the parties to a contract can acquire rights under it or have obligations imposed upon them under it, even if the contract was created to give that party a benefit.

Arbitration analysis: In a judgment dated 19 October 2015, the Judicial Committee of the Privy Council (the Privy Council) allowed an appeal from the Court of Appeal of Jamaica (by majority—Lord Toulson dissenting) and advised that an arbitrator’s supplementary award of compound interest be set aside and the matter be remitted to the original arbitrator for reconsideration in light of the Privy Council’s decision. The decision is of interest to practitioners, principally, for the Privy Council’s consideration of whether or not the arbitrator had jurisdiction, in the circumstances of this case, to make an award of compound interest.

Dispute Resolution analysis: Overturning the decision of the Eastern Caribbean Court of Appeal in the context of an unfair prejudice claim, the Privy Council restored the initial decision and reminded practitioners about the limitations on appeal courts when reviewing lower courts’ decisions. Unless the initial court had considered factors that it should not have done or omitted to consider ones that should have been assessed, an appeal court can only interfere to correct errors of law or a perverse decision. The discouragement of what the Privy Council termed ‘undue appellate activism’ prevents appeal judges being tempted to substitute their own findings of fact, based on reading transcripts, for judgments made after hearing the full evidence, as trial judges do. The decision of the Privy Council endorsed Lord Justice Lewison’s memorable metaphor in Fage UK Ltd v Chobani UK Ltd that trial judges have regard to ‘the whole sea of evidence […] whereas an appeal court will only be island-hopping’. Written by Ian Gascoigne, dispute lawyer and legal trainer.

Arbitration analysis: In a judgment given on 18 January 2016, the Judicial Committee of the Privy Council (the Privy Council) allowed an appeal against a decision of the Court of Appeal of the Eastern Caribbean Supreme Court regarding the interpretation of an arbitration clause in a shareholders’ agreement which provided that in the event of an unresolved dispute ‘any party may submit the dispute to binding arbitration’. The decision is of interest to practitioners called on to interpret or draft similar clauses (often called option clauses or optional clauses) for their clients.

Arbitration analysis: The Privy Council ruled that there were no grounds to overturn an arbitral award by which Mauritius’s state trading company was ordered to pay $US 115m to a company owned by a prominent Mauritian businessman. In doing so, the Privy Council overturned the decision of the Mauritius Supreme Court on the scope of the court’s power to challenge international arbitration awards on public policy grounds. The decision will reassure users of Mauritius as a seat of arbitration by guiding Mauritian judges to maintain the finality of arbitrators’ awards, and to limit the narrow scope of the public policy ground, giving more certainty to decisions of arbitrators in Mauritius. Written by Duncan Bagshaw, partner and head of international arbitration at Howard Kennedy LLP.

Construction analysis: The Judicial Committee of the Privy Council (JCPC) held that the Contractor was entitled to summary judgment against an Employer for unpaid sums due in relation to works carried out in Trinidad and Tobago, rejecting the Employer’s defences of abatement and fraud in respect of some of the payments (and rejecting a specific disclosure application for the supporting documents provided by the Contractor to the Employer’s quantity surveyor in respect of those payments) and that the Contractor had assigned its right to bring proceedings against the Employer to a bank as part of a facility.

Private Client analysis: In a decision which will come as a relief to private individuals who own shares in BVI companies, the Privy Council has decided that section 245 of the BVI’s Business Companies Act 2004 does not have the effect of re-categorising shares as immovable property for the purposes of succession. Written by Kyle Bonnell, pupil at XXIV Old Buildings.