Line to take - LTT6 - Waiver of legal professional privilege

• FOI/EIR: FOI, EIR
• Section/Regulation: s42, reg 12(5)(b)
• Issue: Waiver of legal professional privilege - part 1 of 2 / Partial disclosure only to apply within litigation
• Source: Information Tribunal
• Details: Kirkaldie / Thanet District Council (4 July 2006); Kessler / HMRC (29 November 2007); Mersey Tunnel Users Association / Merseytravel (15 February 2008); Foreign & Commonwealth Office (FCO) (29 April 2008)
• Related Lines to Take: LTT15, LTT111
• Related Documents EA/2006/0001 (Kirkaldie), EA/2006/0001, EA/2007/0052 (Merseytunnel), EA/2007/0043 (Kessler), EA/2007/0092 (FCO), Awareness Guidance 4
• Contact: HD
• Date: 25/06/2008
• Policy Reference: LTT6
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Partial disclosure of legal advice within the context of litigation will amount to a waiver of legal professional privilege and necessitate the revelation of the full advice. However, partial disclosure outside litigation will not constitute waiver of privilege.

Further Information

In the case of Kirkaldie and Thanet District Council, the Council had provided a summary of a piece of legal advice at a full Council meeting and recorded the summary in the meeting’s minutes. Although litigation was neither in progress nor contemplated at that time, the Tribunal concluded that privilege had been waived as the Council could not ‘cherry pick’ its advice, i.e. disclose only those parts of a privileged document which support its case whilst withholding anything which may damage it.

However differently constituted Tribunals in the cases of Kessler and HMRC, Mersey Tunnel Users Association and Merseytravel and recently in the Foreign & Commonwealth Office case, have not followed the Kirkaldie approach. Instead, the more recent Tribunals have all agreed that the ‘cherry-picking’ argument can only apply within the context of litigation and the Commissioner will now adopt this approach.

The Tribunal argues that this is necessary because to allow a party to disclose only the favourable aspects of its advice would risk unfairness and injustice in a court setting because the selected disclosure may mislead the court or artificially inflate the weight to be given to the submissions supported by the advice.

However, outside the context of litigation, the Tribunal in the FCO case said that a party “...is entitled, provided of course he does not falsify, to advance his case in public debate to the best advantage; if so advised, by selective quotation. If he does so, an alert opponent. ...will demand disclosure of the whole advice, if he is to be persuaded. Such is the cut and thrust of public debate...” (para 22).

Further, the Tribunal said that “...everybody is entitled to seek advice as to the merits of an issue involving a public authority. Those who advise such authorities are in no better position to give a correct opinion than those to whom the public can go. Disclosure of privileged opinions is not a substitute for legal aid...” (para 30).

This approach does however require an understanding of what constitutes partial waiver — see LTT111