You might be waiving more than you think: legal privilege and without prejudice privilege

A recent Scottish case has provided a stark warning of the risks around parties waiving legal advice privilege, as well as a reminder that without prejudice privilege is different between Scots and English law – Roche Diagnostics Limited v Greater Glasgow Health Board & Abbott Laboratories Limited [2024] CSOH 90 and [2024] CSOH 95.

Background

The case related to a procurement process for “laboratory managed services”, commenced by a health board in August 2022. Roche and Abbott were the only bidders. Abbott was the existing service provider. When Roche was awarded the contract, this was challenged by Abbott. The health board reviewed its procurement process and (after initially affirming the award to Roche), decided to extend Abbott’s existing contract to allow a new procurement process to be run. Roche raised proceedings, saying the heath board’s actions were unlawful and that it had suffered loss as a result of the health board and Abbott engaging in unlawful means conspiracy.

Roche then sought to recover documents from the health board and Abbott. They disclosed certain documents, including two documents prepared by the health board itself, summarising information about legal advice provided to it by the NHS Central Legal Office. However, they resisted disclosure of certain other documents, arguing they were protected by legal privilege and/or had been issued on a “without prejudice” basis.

Waiver of legal privilege

The court needed to decide whether the health board, having disclosed two documents containing summaries of the legal advice provided to it, had waived legal privilege in respect of the underlying legal advice. Legal privilege is the right to keep confidential communications between a client and their legal counsel relating to legal advice (known as legal advice privilege) and documents prepared in contemplation of ligation, which also covers communications with third parties (known as litigation privilege).

The court found that the health board had waived its right to withhold underlying documents on the basis of legal privilege. It did not matter what the subjective intention of the disclosing party was, in disclosing the documents it did. The court must look at the matter objectively and consider the overarching principles of fairness. The latter is to prevent cherry-picking by disclosing documents more favourable to a party’s position, whilst not disclosing others based on the same privilege that has been waived. Here, it was “undeniable” that the summaries contained details of legal advice to the health board. In disclosing those summaries, the health board had waived its right to resist use of those on the grounds that they contain legal advice. It therefore followed that the health board had also waived its right to claim legal privilege over the underlying legal advice set out in those documents (which was directly related to something the health board was offering to prove in the case, namely that it had no other realistic option but to extend its contract with Abbott).

Without prejudice privilege

Separately, the court considered the correct approach to be taken where “without prejudice” privilege was asserted. Without prejudice privilege generally covers communications between parties to a dispute, made in a genuine attempt to settle that dispute, which are not then admissible in court.

As this case underlines, without prejudice privilege has been dealt with differently by the courts in Scotland and those in England and Wales. In Scotland there is recognition that offers, suggestions and concessions or other statements made for the purpose of negotiating a settlement cannot be converted into admissions of fact. Crucially however, this principle does not apply to a clear and unequivocal admission or statement of fact, even if such statement is marked “without prejudice”. Here the court noted there was no Scottish authority to resist disclosure in a document recovery exercise, on the basis of without prejudice privilege. Instead, it noted the option of the court hearing the evidence where its admissibility was challenged under reservation, before deciding if the documents in questions were truly “without prejudice”.

Points to consider

This case is a sharp reminder of the need for parties to be aware of and careful about waiving legal privilege. It is common for one side in a dispute to refer to the legal advice they have received. Here, even though the summary documents were prepared by a party themselves, not their lawyer, their disclosure to the other side was enough to waive privilege of the underlying legal advice.

Separately, communications attract without prejudice privilege by the nature of their content and do not require an express “without prejudice” label. However it is prudent for parties to include such labels if they are in a dispute and may want to rely on the without prejudice rule later on. This will not be enough however, to prevent a court from looking at the documentation in question before deciding whether it is admissible. And where there is a clear and unequivocal admission or statement of fact, without prejudice privilege will not prevent that from being admissible in the Scottish courts.

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