- Accueil
- Actualités et publications
- Publications
- Disputes Quick Read: Privilege waiver warning
- Sur cette page
2 juillet 2020
Disputes Quick Read – 88 de 99 Publications
Disputes Quick Read: Privilege waiver warning
- QUICK READ
This privilege application arose in proceedings brought by PCP Capital Partners LLP and PCP International Finance Ltd (together, PCP) against Barclays Bank Plc. The underlying dispute concerns Barclays' fundraising following the 2008 financial crisis, which included investments made by Qatari entities (which has itself been subject to civil and criminal proceedings) and PCP.
In the context of the criminal and regulatory investigations into Barclays' conduct, the SFO and FCA interviewed a number of Barclays' employees regarding the relationship between Barclays and the Qatari investors, which was governed under multiple advisory services agreements (the ASAs).
In Barclays' disclosure to PCP, it either withheld those transcripts or provided redacted versions on the basis of legal professional privilege. Despite this, a number of documents disclosed to the SFO regarding the ASAs were subsequently deployed in open court and any privilege lost.
PCP sought disclosure of those transcripts, in un-redacted form, on the basis that Barclays had made multiple references within its witness statements and written arguments to the legal advice that it had received in relation to the ASAs. According to PCP, this meant that Barclays had therefore waived any privilege concerning legal advice contained in the transcripts or other contemporaneous documents sought.
Ultimately, Mr Justice Waksman held that Barclays had in fact waived privilege where the legal advice it received in relation to the ASAs was concerned. In his Judgment, Mr Justice Waksman set out a helpful summary of the approach to be taken by the court in determining issues of waiver:
- A purely narrative reference to the giving or receipt of legal advice will, without more, not constitute a waiver.
- Waiver requires reference to the "contents" or the legal advice, not merely its "effect".
- The "effect" and "content" distinction cannot be applied mechanistically, but must be construed in context. The court will therefore need to consider whether there is any reliance on the privileged material averted to, and the purpose and context of that reliance.
- If the court finds there has been a waiver, it then has to decide the issue or "transaction" underpinning the waiver, with the effect that any other privileged documents within the scope of that transaction will need to be disclosed.
Applying the effect/content distinction, the courts have distinguished between references to legal advice which have been made, for example, in compliance with a procedural requirement (which would not usually amount to a waiver) and references to legal advice as part of a party's pleading (which would constitute a waiver). Here, Barclays clearly fell into the second category, as it was held to have relied upon the legal advice received in an attempt to legitimise the transactions in dispute and, ultimately, to defend the claim.
While Mr Justice Waksman's judgment does not raise any novel points of law, it is a helpful – and stark – reminder of how easily privilege can be lost. If the substance of legal advice received is critical to your position, then the possibility of having to disclose the advice may be a trade-off worth risking. Otherwise, it begs the question whether it is worth referring to the advice at all.
Dans cette série
Changes to the privilege rules between companies and shareholders
6 December 2024
Victory for energy companies/defeat for the environment?
14 November 2024
par Tim Strong, Kate Hamblin
Failure to prevent fraud offence to come into force in September 2025
14 November 2024
par Emma Allen
Non-Disclosure Agreements - updated guidance from the SRA
8 November 2024
par Edward Spencer
Essex Cricket Club charged by Cricket Regulator
30 October 2024
par plusieurs auteurs
UK introduces mandatory reimbursement rules to combat APP fraud
15 October 2024
par Emma Allen, Andrew Spencer
Notice of Claim: What constitutes 'reasonable detail'?
5 July 2024
par Stuart Broom, Tom Charnley
New SFO Director announces bold plans to tackle fraud
21 March 2024
par Emma Allen, Amy Cheng
What are the litigation trends for 2024?
1 February 2024
par Katie Chandler, Emma Allen
ClientEarth v FCA: Challenging Regulator Decisions
12 February 2024
par Tim Strong, Nicole Baldev
First of its kind judicial guidance on the use of AI in the courts
14 December 2023
Witness familiarisation - does it affect the court's assessment of witness credibility?
13 December 2023
The use of AI in Trial Witness Statements post-PD 57AC
23 October 2023
par plusieurs auteurs
CAT to hear the first application for a collective settlement approval order
17 October 2023
Failure to prevent fraud – a new offence?
14 August 2023
par plusieurs auteurs
Supreme Court rules that APP fraud victims cannot rely on Quincecare Duty
4 August 2023
par plusieurs auteurs
The Law Commission's Consultation Process on the Arbitration Act 1996 – taking stock
21 July 2023
What does the latest decision of the CAT in the Mastercard/Visa proceedings mean for class actions?
10 July 2023
Disputes Quick Read: ClientEarth refused permission to pursue directors of Shell
1 June 2023
par plusieurs auteurs
Disputes Quick Read – developments in the fixed costs regime
3 May 2023
par James Bryden
Disputes Quick Read: Service by email – are the rules any clearer?
20 April 2023
par James Bryden
Disputes Quick Read - What do practitioners think about making alternative dispute resolution (ADR) compulsory?
8 March 2023
Disputes Quick Read: What are the litigation trends for 2023?
2 March 2023
par Katie Chandler, Emma Allen
Disputes Quick Read: further guidance on witness statement preparation rules
14 February 2023
Disputes Quick Read: A cautionary tale – settlement agreement (un)wittingly releases all claims for fraud
13 February 2023
Disputes Quick Read: Why the UK should join the Hague Judgments Convention 2019
8 February 2023
par Jessie Prynne
Disputes Quick Read: extensive information orders granted against crypto exchanges following hack
19 January 2023
par Georgina Jones
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3 October 2022
par Gemma Broughall
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22 September 2022
par Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9 August 2022
par Nick Maday
Disputes Quick Read: Disclosure - What information can be redacted?
25 July 2022
par Edward Spencer
Disputes Quick Read: what claims exist when a smart contract is breached?
6 July 2022
par Emma Allen
Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28 July 2022
Disputes Quick Read: Disclosure Pilot Scheme – here to stay
21 July 2022
par Edward Spencer
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27 July 2022
par Stuart Broom
Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29 July 2022
par Jess Thomas, Lucy Waddicor
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17 June 2022
par Stephanie High
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
par Edward Spencer
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31 May 2022
par plusieurs auteurs
Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4 April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5 April 2022
par Stephanie High
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31 March 2022
par plusieurs auteurs
Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21 September 2021
par plusieurs auteurs
Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13 September 2021
par Edward Spencer
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6 September 2021
par Stephanie High
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2 August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21 July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15 July 2021
par Jess Thomas
Disputes Quick Read: Will the courts change forever post-COVID?
26 May 2021
par David de Ferrars
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5 May 2021
par Stephen O'Grady
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21 April 2021
par Stephanie High
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31 March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
par Tim Strong
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24 February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20 January 2021
par Stephanie High
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12 January 2021
par Tim Strong
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23 November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16 October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23 September 2020
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7 October 2020
par Nick Storrs
Disputes Quick Read: The importance of proper service
26 May 2020
par Edward Spencer
Disputes quick read: Mandatory changes to Statements of Truth
18 May 2020
par Katie Chandler
Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9 April 2020
par plusieurs auteurs
Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15 April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
par plusieurs auteurs
Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21 April 2020
par Stephanie High
Disputes Quick Read: A different approach to witness evidence
11 March 2020
par James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
17 March 2020
par Stuart Broom
Disputes quick read: climate change activism by litigation
26 February 2020
par Tim Strong, Andrew Howell
Disputes Quick Read: Commercial Court's arbitral power shift
21 February 2020
par Andrew Howell
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2 June 2020
par Georgina Jones
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16 June 2020
par Georgina Jones
Disputes Quick Read: Privilege waiver warning
2 July 2020
par Tim Strong, Georgina Jones
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
par Stuart Broom
Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
par Katie Chandler
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
par Tim Strong, Jess Thomas
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20 January 2022
Disputes Quick Read: Climate change litigation update
8 March 2022
par Jess Thomas, Lucy Waddicor
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7 April 2022
par Emma Allen, Georgina Jones
Related Insights
Changes to the privilege rules between companies and shareholders
par Tim Strong et Helen Brannigan
AI in focus: Are conversations with AI chatbots privileged?
par plusieurs auteurs
Important environmental ruling?
par Tim Strong et Kate Hamblin