Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors

Legal professional privilege is not waived merely because privileged legal advice is relevant to a pleaded issue, including a person’s state of mind about the lawfulness of conduct. The position is unchanged where the advice is highly relevant or concerns a belief about a matter of law. Waiver requires deployment of the contents of the advice, or another recognised basis for waiver. A reference to the fact that advice was given, or to its effect, does not necessarily disclose its contents. Fairness is not, by itself, the touchstone for overriding privilege. The court must decide the issue on the evidence available, even if relevant privileged material is withheld.

The claimants sought disclosure of legal advice received by individuals whose alleged honest belief in the lawfulness of the defendants’ conduct was relied on in defence to a conspiracy claim. They advanced two submissions. First, references in witness statements to legal advice amounted to deployment of its contents. Secondly, pleading and proving a state of mind concerning legal questions itself waived privilege because the advice was likely to have influenced that state of mind.

The defendants submitted that privilege was fundamental and was not waived by relevance, fairness, or merely putting state of mind in issue. The application was heard during the continuing trial.

1. Application dismissed. The claimants failed on both the narrow and broad submissions.

2. On the narrow submission, waiver requires more than recording that legal advice was given. The court must consider objectively what was disclosed and the circumstances of disclosure. The distinction between the contents and the effect of advice should not be applied as an inflexible verbal test, but there must be a reference to, and reliance on, the contents of the advice before deployment-based waiver can arise.

3. The witness statements did not cross that threshold. References to witnesses’ beliefs, conduct, the fact that advice had been given, or a letter being based on advice did not fairly amount to reliance on the contents of the advice.

4. On the broad submission, the relevance of privileged advice does not waive privilege. The same applies where the advice is highly relevant, where its absence hampers investigation or cross-examination, and where the issue concerns a person’s state of mind. It makes no difference that the state of mind concerns a matter of law rather than fact.

5. Following Paragon Finance v Freshfields [1999] 1 Weekly Law Reports 1183 and applying the reasoning approved in Farm Assist Limited v Secretary of State for Environment, Food and Rural Affairs [2009] Professional Negligence Law Reports 321, fairness is not a sufficient basis for overriding privilege. Waiver would arise if the contents of the advice had been deployed, but they had not been.

6. The judgment did not determine the legal or evidential burden concerning honest belief, and expressed no view on the eventual factual findings. The application therefore failed.