Legal Professional Privilege in England and Wales - Waiver of Privilege

Waiver of Privilege

In both categories of privilege (legal advice privilege and litigation privilege) the privilege is that of the client, not of the lawyer or of the third party. Thus, only the client may waive privilege.

Legal professional privilege may be waived unilaterally by the client. This should be contrasted with the privilege which attaches to without prejudice correspondence, which may not be waived without the consent of both parties. A document in respect of which privilege is waived in one action cannot necessarily be used by the opposite party in a subsequent action between the same litigants unless the privilege is once again waived.

The reading out of part of a document by counsel at trial, even without the client's express authority, amounts to a waiver of any privilege attaching to the document as a whole; however, mere reference to a document does not amount to a waiver of privilege. Following the rule of indivisibility of waiver, the disclosure of part of a letter pursuant to a general order for discovery constitutes a waiver of privilege in respect of the whole contents of the letter.