Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2009] EWHC 1437 (Ch) (17 June 2009)

Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2009] EWHC 1437 (Ch) (17 June 2009)

Privilege in legal advice is not waived by pleading or putting in issue a state of mind, even where that state of mind relates to lawfulness and may have been influenced by legal advice, unless the party deploys the contents of the advice in the litigation. Mere references to the existence or effect of legal advice, without reliance on its contents, do not constitute waiver.

Citation
[2009] EWHC 1437 (Ch)
Parties
Claimant: Digicel (St. Lucia) Limited; Claimant: Digicel (SVG) Limited; Claimant: Digicel Grenada Limited; Claimant: Digicel (Barbados) Limited; Claimant: Digicel Cayman Limited; Claimant: Digicel (Trinidad & Tobago) Limited; Claimant: Digicel (Turks & Caicos) Limited; Claimant: Digicel Limited; Defendant: Cable & Wireless Plc; Defendant: Cable & Wireless (West Indies) Limited; Defendant: Cable & Wireless Grenada Limited; Defendant: Cable & Wireless (Barbados) Limited; Defendant: Cable & Wireless (Cayman Islands) Limited; Defendant: Telecommunications Services of Trinidad & Tobago Limited
Jurisdiction
England and Wales
Judgment Date
17 June 2009
Procedural Posture
Interlocutory Application in Ongoing Civil Action / Application for Disclosure of Privileged Documents During Trial
Outcome
application dismissed
Legal Topics
Legal Professional Privilege, Waiver of Privilege, Disclosure of Documents, State of Mind in Tort of Conspiracy, Interconnection Disputes
Civil Procedure Evidence Telecommunications Law Legal Professional Privilege Waiver of Privilege Disclosure of Documents State of Mind in Tort of Conspiracy Interconnection Disputes

Case Brief

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Parties

Digicel (St. Lucia) Limited

Claimant

Digicel (SVG) Limited

Claimant

Digicel Grenada Limited

Claimant

Digicel (Barbados) Limited

Claimant

Digicel Cayman Limited

Claimant

Digicel (Trinidad & Tobago) Limited

Claimant

Digicel (Turks & Caicos) Limited

Claimant

Digicel Limited

Claimant

Cable & Wireless Plc

Defendant

Cable & Wireless (West Indies) Limited

Defendant

Cable & Wireless Grenada Limited

Defendant

Cable & Wireless (Barbados) Limited

Defendant

Cable & Wireless (Cayman Islands) Limited

Defendant

Telecommunications Services of Trinidad & Tobago Limited

Defendant

Procedural Posture

Interlocutory Application in Ongoing Civil Action / Application for Disclosure of Privileged Documents During Trial

Legal Issues

  1. 1 Whether the defendants have waived legal professional privilege in legal advice by reference to belief in lawfulness of conduct
  2. 2 Whether pleading or putting in issue a state of mind as to lawfulness constitutes waiver of privilege
  3. 3 Whether references in witness statements amount to deployment of privileged material

Ratio Decidendi

Privilege in legal advice is not waived by pleading or putting in issue a state of mind, even where that state of mind relates to lawfulness and may have been influenced by legal advice, unless the party deploys the contents of the advice in the litigation. Mere references to the existence or effect of legal advice, without reliance on its contents, do not constitute waiver.

Court Disposition

application dismissed

Orders

  • Application for disclosure and inspection of legal advice documents refused.