Waiver of privilege can sometimes have unanticipated consequences. If legally privileged communications are referred to in evidence in court, the privilege attaching to those communications and to related communications may be lost. The English High Court recently considered the knock-on effect of waiver of privilege in Commodities Research Unit International (Holdings) Ltd & others v King and Wood Mallesons LLP.
What is Privilege?
Legal professional privilege has a number of forms, including legal advice privilege which protects the confidentiality of communications between a lawyer and a client for the purpose of seeking or giving legal advice. If a communication is privileged, it does not have to be disclosed to the other side in litigation. However, privilege may be lost if a party refers to or seeks to rely on the contents of a privileged document in the course of legal proceedings. The Commodities decision shows how this can happen.