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Preserving legal privilege - It's not an absolute right

  • United Kingdom
  • Litigation and dispute management

04-05-2022

It's not an absolute right

Last week, in the two high profile claims brought against the Uber Group,[1] the Victorian Supreme Court made a number of innovative findings in relation to what documents can be withheld from an opponent in litigation.  In this article we take a look at the guidance that litigants can take from the decision and the stark warnings it delivers.

The claims against the Uber Group

Two claims have been brought against the Uber Group alleging that its provision of the UberX service in four Australian states involved breaches of local laws and regulations, was unlawful, and caused loss and damages to existing competitor businesses.  While the case still awaits trial, last week’s hearing determined various challenges to asserted rights to withhold certain documents on the grounds of legal privilege.

The Decision

The Victorian Supreme Court did not shy away from a bold application of the legal principles in both preserving the protection of privilege for certain documents and quashing it entirely for others.

Losing privilege

The misconduct exception, the equivalent to the iniquity exception under English law, was applied with vigour where it could be shown that there was 'colour to the charge' of alleged misconduct.

Unrestricted by the sometimes traditional presumption that an assertion of privilege is always genuine, the Supreme Court confirmed that legal professional privilege is not an absolute right where allegations of misconduct meet the applicable threshold.

Extending privilege

At the other end of the spectrum, the Supreme Court elected to preserve protection in respect of documents which, certainly under English law, may have been at risk of disclosure.  

Taking a commercial view in relation to documents protected by legal advice privilege which had been shared with numerous individuals both within and outside the organisation, the court upheld the claim to protection against disclosure.

Under English law, legal advice privilege only applies to confidential communications passing between a lawyer and the client.  The definition of ‘client’ is narrow and is limited to the individuals authorised to provide instructions and receive the advice,[2] meaning its protection can be lost if shared too widely.  Litigation privilege will not necessarily come to the rescue in these circumstances unless it can be shown that the document in question was created for the sole or dominant purpose of obtaining information or advice in connection with existing or contemplated litigation.

In contrast, the definition of ‘client’ under the law in Victoria[3] is wider in that it includes employees and agents, not just those engaging the lawyer.  The question of waiver instead stems from the ‘inconsistency between the conduct of the client and the maintenance of confidentiality’[4] .

The decision in this case, and the wider definition of client under Victorian law, perhaps better  recognises the apparent unfairness that can otherwise arise where protection is inadvertently lost when documents are shared across a business or with external advisors which do not technically fall within a narrow definition of ‘client’.  The court did, however, emphasise the importance of establishing appropriate obligations of confidentiality in order to rely on this wider protection where third parties are concerned.  This is a key lesson with applicability under English law.

Lessons learned

Even if litigation is contemplated, businesses should be extremely careful not to disseminate protected documents more widely than is necessary or to inadvertently waive privilege by reference to its contents in an open forum.  While the decision applied the law in Victoria, it echoed the English law position on the following common principles:

  • lawyer involvement does not necessarily lead to privilege protection
  • whether or not a document is entitled to litigation privilege protection is established at the time it is produced based on its dominant purpose
  • particular caution should be adopted where in-house counsel are involved given their wider advisory role on both legal and commercial matters
  • if it is necessary to share documents internally or with external advisors it is important that proper confidentiality obligations are established and this should only be done with support of your legal team so as not to waive legal advice privilege.

Summary

This decision is a reminder for litigants that privilege is not an absolute right.  It can be unintentionally lost and businesses should always exercise caution when producing and disseminating sensitive documents, even if lawyers are involved.

It is important to note that privilege protection varies across different jurisdictions and it should not be assumed that protection afforded in one jurisdiction will extend to another.  For further information regarding privilege across the globe, see our Guide to privilege here.

 


[1] Nico Andrianakis v Uber Technologies Incorporated & Ors (S ECI 2019 01926) and Taxi Apps Pty Ltd v Uber Technologies Incorporated & Ors (S ECI 2020 01585)

[2] Three Rivers District Council & Ors v Bank of England [2004] UKHL 48

[3] s117 of the Evidence Act 2008 (Vic) and Chan v Valmorbida Custodians Pty Ltd [2021] VSC 527, [90]

[4] [164] referencing Gleeson CJ, Gaudron, Gummow and Callinan JJ in Mann v Carnell (1999) 201 CLR 1