High Court makes a common sense decision when it comes to privilege

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In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 the High Court has overturned a decision by the NSW Court of Appeal and ordered the return of privileged documents inadvertently discovered, ruling there was no implicit waiver of privilege. The case concerned the accidental disclosure by the appellant of thirteen documents, which were subject to a claim of client legal privilege.

Initially, the primary judge stated that if the documents had been disclosed inadvertently, privilege would not have been waived. However, in order to determine whether the documents were inadvertently disclosed it was necessary to prove that the appellant’s solicitors had intended to claim privilege over each document. In light of this, the primary judge found nine of the documents were inadvertently disclosed. This was because the appellant had claimed privilege over copies of these nine documents. Interestingly, the High Court noted that this process was concerned with whether there was an intention to claim privilege not whether there was an intention to waive the claim, two separate issues.

On appeal it was found that privilege in the documents had been waived. This conclusion was made on the basis that the sending of the documents was an intentional act carried out with the knowledge that privilege documents could be withheld. As such the four documents the respondents still held were allowed to remain in their possession.

Thankfully the High Court clarified the position by noting that the waiver is an explicit or implied abandonment of a right. As the appellant had clearly not abandoned this right (as soon as they were aware of the mistake they wrote to the respondents requesting the documents) the privilege could not have been waived. The Court noted this was clearly a simple mistake and, as such, it was necessary that it be corrected so that the parties could continue with their preparation for trial.

While, junior solicitors, involved with the discovery of documents, will breathe a collective sigh of relief following this decision, it should provide stark warning to solicitors on the importance of undertaking accurate discovery. Furthermore, the High Court was at pains to point out the need for Courts and solicitors to deal with these issues in a more efficient manner that accords with the overriding purpose of litigation, being to dictate justice.

Topics:  Australia, Confidential Documents, Discovery, Privilege Waivers

Published In: Civil Procedure Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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