The National Crime Agency v Perry & Ors

Waiver of legal advice privilege requires assessment of both what has been disclosed and the circumstances of disclosure. The court asks whether fairness requires disclosure of the whole relevant transaction because the existing evidence might create a partial or misleading understanding. A reference merely to the fact that legal advice was obtained, and to its having formed part of the background to the client’s own view, does not ordinarily disclose the advice’s substance, effect or deployment. Waiver is not easily established, particularly because legal advice privilege is an important protection. A party may limit its evidence so as to avoid waiver, although it must then accept that the court will decide the substantive issue on the evidence it has chosen to provide.

The National Crime Agency had discontinued civil recovery proceedings against the defendants. The defendants sought indemnity costs, alleging that the NCA had acted unreasonably by continuing to rely on findings in an Israeli criminal case after a later judgment of the Israeli Supreme Court.

In resisting the indemnity-costs application, the NCA relied on a witness statement stating that its predecessor, SOCA, had received Israeli legal advice and had formed its own view that the later judgment had not altered the earlier factual findings. The defendants applied for disclosure and inspection of documents containing or recording that advice, alleging waiver of legal advice privilege. The issue was whether the witness statement disclosed or deployed the substance or effect of the advice.

1. The application was dismissed. The defendants were not entitled to disclosure or inspection of documents containing or recording the Israeli legal advice obtained by SOCA.
2. The governing principles were summarised from Brennan v Sunderland City Council [2009] ICR 479. The fundamental question was whether, considering what had been disclosed and the context of disclosure, it would be unfair to withhold the remainder of the relevant information because the court or the other party might be left with a partial or misleading understanding. The court must guard against cherry-picking.
3. The court must consider both the nature of the disclosure and the circumstances in which it was made. Relevant distinctions include disclosure of the substance, gist, content or effect of advice, and whether the advice was referred to, used, deployed or relied upon. The authorities also establish that legal advice privilege is an important protection, that waiver is not easily established, and that something more than the effect of advice must be disclosed before waiver can arise.
4. The witness statement stated that Israeli advice had been received and that its receipt formed part of the context in which SOCA formed its own view. It did not reveal the advice’s content or effect, disclose whether the advice supported or contradicted SOCA’s view, or deploy the advice in resisting indemnity costs.
5. The NCA had deliberately adopted a careful formulation and was entitled to limit its evidence in that way. The consequence was that the indemnity-costs issue would be considered on the evidence available, but legal privilege had not been waived and there was no basis for ordering disclosure or inspection.

This was a first-instance application arising from discontinued civil recovery proceedings. The judgment records that Popplewell J had made the costs order following discontinuance, after which the defendants sought indemnity costs and disclosure of the privileged advice.