AG v VD

Legal professional privilege may be waived where a party puts the substance of instructions to legal advisers in issue and relies on an alleged mismatch between those instructions and a document prepared by the advisers. The court applies a composite fairness assessment, considering what was disclosed, the circumstances of disclosure, the degree of reliance, and the risk of a partial or misleading account. A party need not identify a particular conversation or disclose the advice received before waiver can arise. Waiver extends only to communications relevant to the issue placed in dispute. It does not justify production of advisers’ entire files, including material concerning unrelated financial or family matters.

The applicant wife sought financial remedy orders under Part III of the Matrimonial and Family Proceedings Act 1984. The respondent husband sought disclosure of the wife’s files from her former legal advisers, relying on statements in which she alleged that her divorce petition misstated her instructions, was prepared without adequate translation, and contained errors.

The central issue was whether the wife had waived legal professional privilege by challenging the accuracy of the petition and relying on what she said she had told her advisers, and, if so, what material fell within the waiver.

1. Waiver test. The court adopted the principles summarised in Brennan and others v Sunderland City Council and others [2009] ICR 479. Waiver is determined by a composite question of fairness. The court considers the nature of the disclosure, the circumstances in which it was made, the extent of reliance, and whether withholding the remaining relevant material would risk an incomplete or misleading understanding.
2. Application. The wife had put squarely in issue what instructions she gave her advisers and whether those instructions had been misunderstood, misquoted or not followed. She was relying on that account to explain the petition. It would therefore be unfair to prevent the husband from testing it against contemporaneous attendance notes, emails and other communications. A waiver did not require reference to a particular meeting or to advice received. Communications from client to adviser and from adviser to client were treated alike.
3. Scope. The husband’s request for the whole of the files was too broad. The waiver was confined to material concerning the instructions as to when the parties separated and when marital relations ceased, communications identifying the recipients and language of those instructions, and communications concerning when the draft petition was sent to the wife and its contents. Material concerning unrelated financial affairs or the child of the family remained privileged.
4. Order. The relevant files were to be sifted by Queen’s Counsel selected by the parties, with redaction where necessary. The wife was ordered to pay the husband’s costs of the summons on the standard basis.