When in doubt keep it out? When is it safe to refer to privileged documents?
UK & Europe
Last month the High Court handed down its decision in the specific disclosure application in PCP Capital Partners LLP and another -v- Barclays Bank plc  EWHC 1393 (Comm).
The Court has held that when determining whether an allusion to privileged material (here in witness statements and opening submissions) amounts to a waiver of privilege, one must assess (i) whether the allusion is sufficient and, (ii) whether the party waiving is relying on it in some way to support or advance its case on an issue that the court must decide.
PCP has underscored just how easily waiver can happen. For example:
So the notion that a reference to the effect of privileged advice will not amount to a waiver, whereas a reference to its content will, has been debunked. As Mr Justice Waksman warns, "The fact that only the conclusion of the legal advice referred to is stated as opposed to the detail of the contents may not prevent there being a waiver."
To this extent, PCP is consistent with TMO Renewables -v- (1) Desmond George Reeves (2) Maxwell Charles Audley  EWHC 789 (Ch), in which a similar issue was decided by reference to the deployment of documents (waiver) versus their being merely referenced (no waiver). In TMO Renewables, the Court held that this distinction turns on the purpose and context of the allusion to the privileged material. Our article on TMO Renewables from May 2020 is here.
However, are the two decisions entirely compatible? Despite references in witness evidence to the effect of a privileged EY report, it was held in TMO Renewables that there had been no waiver of privilege. Based on the examples above, PCP could appear to pose a contradiction. In fact the decisions really offer counterexamples of the same principle at work. The key point of distinction is the context in which the allusion to the privileged material was made in each case, because waiver requires the deployment of privileged material to be in support of an issue before the court. That threshold was not met in TMO Renewables because the allusion in question arose in the context of a security for costs application, which does not examine the fundamental merits of a dispute. In contrast, the effect of the statements in PCP was that the lawyers approved the legality of a transaction under question, and the only reason for making such assertions was to assist the waiving party with the merits of its case regarding the legitimacy of the associated agreement.
PCP serves as another example of how subtle and context-specific (and possibly unpredictable) the question of waiver of privilege is, and the importance of keeping that in mind.