Privilege – referring to the effect but not content of legal advice may constitute waiver
The High Court has determined that privilege had been waived by repeated references to the involvement of lawyers, even though the content of that advice had not been laid out.
The judgment dealt in some detail with the law of privilege and the notion that "quite apart from reliance, waiver cannot arise if the reference is to the 'effect' of the legal advice as opposed to its 'contents'".
It came to the conclusion that the law of privilege is highly nuanced and rulings depend on the facts and context of each case.
The judge went on to say that even where only the effect of the legal advice is referred to, as opposed its contents, that does not necessarily preclude a waiver. In the context of this particular case, the court held that references in witness statements to the involvement of lawyers and taking comfort in their advice, without detailing that advice, was sufficient to constitute a waiver of privilege in the advice.