Plaintiff lawyers of any significant experience will all have received at some point a letter from their opponents solicitor, “without prejudice save as to cost,” explaining why the plaintiff’s case is apparently hopeless and should be discontinued. The level of reasoning varies, but what if the defendant’s solicitor says you should drop the case because their Counsel says it’s hopeless? Does that waive privilege over legal advice so that it must be disclosed to the plaintiff? The short answer is no, not if all that was said is that “our counsel says your case is hopeless and even if it’s not and you win you won’t get as much as you are seeking.” The lesson is, if you are a lawyer, you shouldn’t need your opponent’s lawyer’s advice to work out what you should advise your client.
In Haberman v Cook Shire Council [2021] QSC 101, His Honour Henry J considered this issue. The plaintiff applicant did not contend the defendant respondent had a duty to disclose the defendant counsel’s advice under r 211 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) on the basis that is was “directly relevant to an allegation in issue in the pleadings.” Counsel’s opinion was unlikely to constitute an admission of any fact in issue or have other relevance to any allegation in the pleadings. The plaintiff argued that under rule 223(1)(a) the defendant counsel’s advice ought to be disclosed because “there are special circumstances and the interests of justice require it” and cited Mann v Carnell (1999) 201 CLR 1 that “Documents may be discoverable even though they may not be admissible in evidence. Their importance may me, for example, that they indicate a useful line of investigation, or that they contact information which could affect the manner in which a party may decide to conduct proceedings.” Mann did not consider rr 211 or 223 of the UCPR though and was therefore not directly relevant.
The plaintiff did not argue and the Court did not think it sufficient to compel the disclosure, the mere fact that it might avoid delay by encouraging an earlier settlement, an objective of the UCPR under r 5(2). This would be an odd argument for a plaintiff to make anyway – that we need your advice so we can work out how hopeless our clients case is and take your stingy offer. What mattered was whether there were “special circumstances” and whether the disclosure would be in “the interests of justice.” In a nutshell, the plaintiff’s argument was that “it is unfair for the respondent to use counsel’s advice as a persuasive device in support of its settlement offer while depriving the applicant of access to that advice. As the applicant’s counsel put it, it is not in the interests of justice that the respondent should be permitted to use counsel’s advice as a sword in support of its position and invoke privilege as a shield against full understanding of that position by the applicant.”
The Court found that the words “without prejudice” on the defendant’s solicitor’s letter that had referred to their counsel’s advice would not of themselves preclude the disclosure of their counsel’s advice. However, the Court referred to the following passages from High Court of Australia decisions:
“Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case.” Osland v Secretary, Department of Justice (2008) 234 CLR 275.
“Waiver may be express or implied… whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect… even though such consequences may not reflect the subjective intention of the party who has lost the privilege… What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large… Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client’s actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case considerations of fairness may be relevant to a determination of whether there is such inconsistency.” Mann v Carnell (1999) 201 CLR 1.
The Court found any unfairness in the defendant maintaining privilege over its counsel’s advice “so trivial that the circumstances fall well short of meeting r 223(4)(a)” of the UCPR and summed up the level of disclosure given regarding the counsel’s advice in question as no more than “Our barrister advised that we will likely win, and if we don’t, you won’t get nearly as much as you are claiming.” It went no further, it did not say for example that the plaintiff would not prove causation, or what counsel thought the likely quantum of damages would be. At paragraph [33] the Court said:
“There is no secret as to the law, the nature of the pleaded cases or disclosed documents… Like the respondent, the applicant has the right to procure lawyer’s opinions about such matters for herself, including from a barrister.”
It would be a rare case that a party to litigation would want to waive privilege over legal advice. The original application was for additional disclosure not evident from the judgment so it is not known if the defendant had been withholding other documents and agreed to hand them over (or did hand them over) before the hearing, or if the plaintiff backed down from demanding other disclosure and just stood her ground on the issue of the defendant counsel’s advice (or maybe a combination of the two). If you have a civil litigation disclosure issue, contact us for a free, no obligation initial consultation to discuss how we may be able to help.
Haberman v Cook Shire Council [2021] QSC 101