Lasting Powers of Attorney: recent key developments
In the case of Mid-East Sales Ltd v Engineering & Trading Co. PVT Ltd (2014), the High Court found the Defendant to have effectively waived legal professional privilege by citing legal advice in its’ witness evidence in such a way so as to cross the line from ‘reference’ to ‘deployment’. This meant that, despite the fact that such communication between solicitor and client is usually protected, the Defendant was compelled by the court to disclose to the Claimant the legal advice it had received.
In a witness statement on the Defendant’s (Engineering & Trading Co. PVT Ltd) (“D”) behalf, it was said that, having received legal advice, D had returned the claim form after service for jurisdiction reasons. In a later witness statement, it was said that D's position had been based on incorrect legal advice.
The Claimant (Mid-East Sales Ltd) (“C”) applied for disclosure of legal advice given to D.
The issue was whether those statements made by D in its’ witness evidence amounted to a waiver of legal professional privilege in respect of the legal advice referred to.
C’s Application was granted.
It was held that legal professional privilege in respect of legal advice given to a Defendant had been waived by mentioning the advice in witness statements in such a way as to cross the line from reference to deployment, and fairness required that the court and the Claimant should be given the opportunity to see the legal advice.
Charles Hollander QC noted a distinction between the fact of legal advice and reliance on its contents. That reflected the policy of not finding a waiver without good reason, and of confining a case of waiver to where a party was relying on legal advice for some purpose.
The overriding principle was fairness. In the instant case, the relevance of the legal advice appeared to go to the question of delay and whether the court should exercise its discretion to set aside a default judgment. The two statements made the case that D was acting on legal advice when responding to the claim form in the way that it did. The legal advice could only have been relevant because D had relied on it as a factor going to the court's discretion.
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