Waiver of privilege in family proceedings

The privileged nature of communications between a client and legal team is fundamental so that there can be a frank exchange without concerns that information and advice may later be made open, in particular to the opposing party in any subsequent litigation. 

The legal position is that all communications between a client and legal adviser are privileged as long as they are confidential, written by or to the legal adviser in his or her professional capacity, and for the purpose of giving or getting legal advice. However, that privilege can be waived and a recent case in family proceedings, AG v VD [2020] EWHC 1847 (Fam) dealt with whether privilege had been waived and if so, what was the effect.

In this case, a wife had claimed in an English petition in 2017 (which did not proceed) that she had been separated for two years. The divorce went ahead in Russia and the wife then made a financial claim in England as she was able to do after an overseas divorce, in which she claimed that the marriage had not broken down until 2017. Her position was that her English petition was incorrect and had mistakenly referred to a two year period of separation. She said that she had previously instructed a "para law" firm who instructed lawyers who were at least incompetent,  and that she is not a confident English reader. 

The husband claimed that she had waived privilege, and that the whole file should be disclosed. The judge concluded that despite the skilful drafting of the wife's advisers, it was clear to him that the wife had "invited [the husband] into the consultation room". It was not fair on the husband to be unable to challenge her statement that her instructions had been misconstrued or misquoted. It was not enough for the wife to say that she had not specified any particular conversation, and it did not matter that she did not refer to advice given to her. The husband did not get to see the whole file, but he was permitted to view the material in which her instructions were given or noted as to when they separated or marital relations between them ceased. 

Disclosure was also to be made of communications and notes to identify those to whom the wife gave her instructions and the language in which they were given, and documents identifying when the petition was sent to her or any communications  with her about its contents. 

The files were to be looked at by an independent barrister who was to sift the material and redact as necessary. Waiver does not have to be deliberate. Great care needs to be taken when referring to any communications from a client to avoid waiving privilege inadvertently.