URGENT: Privileged email disclosure question between client and solicitor

[Beaten]

Firstly thanks for all the previous opinion supplied by various people on previous topics.

The question is simply:

I sent an email to my solicitor some time ago which is privileged. I would like now to release this email and its the reply to the opposing defendant’s solicitors. Can I release this singular email and reply in isolation, or by doing so would this mean I would have to supply to the defendant’s solicitors all my emails and reply’s between myself and my solicitor?

Kind Regards,

Beaten

[Beaten]

Hi ,

has anyone any idea if you release one email thats from you to your solicitor , And the email reply from the solicitor to you , do you then have to release all the emails that have gone between you ?

[seduraed]

can't you talk to yoursolicitor?

[Aged William]

Kasongo 2019 may be of use to the OP:

16. The practice of selective waiver of privilege that was unfair or risked misunderstanding is often referred to as "cherry-picking" as useful shorthand, meaning choosing only the best fruit and leaving the less tasty, unripe or even bad ones behind. It has been considered in a number of cases, and although the precise formulation of the definition in each of the cases has been articulated in a number of different ways, the core features remain constant: firstly, the use of legally privileged material in a selective manner, and secondly to obtain a forensic advantage, a risk of unfairness or misunderstanding, that can arise from the Court or Tribunal having only a partial view of the privileged material.

https://www.bailii.org/uk/cases/UKEA...9_19_0909.html

[Beaten]

Kasongo 2019 may be of use to the OP:

16. The practice of selective waiver of privilege that was unfair or risked misunderstanding is often referred to as "cherry-picking" as useful shorthand, meaning choosing only the best fruit and leaving the less tasty, unripe or even bad ones behind. It has been considered in a number of cases, and although the precise formulation of the definition in each of the cases has been articulated in a number of different ways, the core features remain constant: firstly, the use of legally privileged material in a selective manner, and secondly to obtain a forensic advantage, a risk of unfairness or misunderstanding, that can arise from the Court or Tribunal having only a partial view of the privileged material.

https://www.bailii.org/uk/cases/UKEA...9_19_0909.html

Hi Thanks for that,

so there is no way of just releasing an single email and reply to that email?

it is simply an instruction email to the solicitor that was representing me.

I no longer have a solicitor I am litigant in person, so thanks for the opinion !

kind regards

Beaten

[Aged William]

...it is simply an instruction email to the solicitor that was representing me...

This begs the question whether it is a privileged document or not.

[Beaten]

This begs the question whether it is a privileged document or not.

Please could you explain in more detail?

My primary concern is if I disclose this simple email and the reply email to the defendant’s solicitors, then they could then say thanks for that email, but we would now like all the emails between yourself and your solicitor. Which from my understanding emails between client and solicitor are privileged?

regards

[Aged William]

Not every communication between a lawyer and client is covered by privilege.

There are two forms of legal professional privilege:

Legal advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice.

Litigation privilege protects confidential communications between lawyers, clients and third parties made for the purposes of litigation, either actual or contemplated.

https://en.m.wikipedia.org/wiki/Lega...20the%20client.

[Beaten]

Not every communication between a lawyer and client is covered by privilege.



https://en.m.wikipedia.org/wiki/Lega...20the%20client.

I see,

so if i released the email, and the email reply , which is in connection with the litigation, would I be forced to then release the rest of the emails exchanged over the next 2 years ?

kind regards

[Aged William]

It depends if the email is covered by privilege or not:

Not every communication between a lawyer and client is covered by privilege.

[Beaten]

The email is litigation privileged, as it records facts and asks advice regarding future litigation.

So again by releasing that single email and reply in isolation does this waiver privilege on all other later communication?

[Aged William]

The email is litigation privileged, as it records facts and asks advice regarding future litigation.

So again by releasing that single email and reply in isolation does this waiver privilege on all other later communication?

Possibly, bearing in mind Kasongo. I suggest if you are contemplating disclosing the email then you should seek specific legal advice that will consider the implications of doing so.

[R0b]

Privilege cannot be waived in part. Something is privileged or it isn't, so you should be very careful in deciding whether to disclose privileged material, because once privileged is waived, the entire suite of communications relating to that subject matter/document becomes disclosable. The courts will treat a part-waiver of privilege as a full waiver.

As Aged William has said, disclosing part of the privileged material is like cherry picking and only gives the court and the other side part of the picture. Should you choose to disclose the privileged material, I would expect the other side to seek disclosure of all relevant material pertaining to that communication, either directly from yourself or, if necessary, through an application to the court.

[Beaten]

Privilege cannot be waived in part. Something is privileged or it isn't, so you should be very careful in deciding whether to disclose privileged material, because once privileged is waived, the entire suite of communications relating to that subject matter/document becomes disclosable. The courts will treat a part-waiver of privilege as a full waiver.

As Aged William has said, disclosing part of the privileged material is like cherry picking and only gives the court and the other side part of the picture. Should you choose to disclose the privileged material, I would expect the other side to seek disclosure of all relevant material pertaining to that communication, either directly from yourself or, if necessary, through an application to the court.

Hi, that is very helpful,

would the first email that instructs the solicitor and lists injuries sustained in the accident for both driver and passenger open up a pathway to all email correspondence in the case?

To be clear, I wish to disclose one complete thread of emails (which consists of 2 emails in total). The emails consist of a question which is then answered by the solicitor. If this question and answer in total is revealed to the defendants, then would later emails need to be disclosed if the defendants request them?

“I would expect the other side to seek disclosure of all relevant material pertaining to that communication, either directly from yourself or, if necessary, through an application to the court” - does this mean the email thread that the email is part of, or all communication over a number of years in relation to the accident and injuries.

Put simply If I release the whole thread (2 emails) could the defendant’s solicitors ask for more?

Kind regards

[pt2537]

Put simply If I release the whole thread (2 emails) could the defendant’s solicitors ask for more?

Yes, and they could apply for discovery too if they believe that there are further emails in the chain that either support or adversely affect your case.

I never waive privilege at all, its a slippery slope and one that is not worth going down