The court of appeal’s decision has been referred to by several law firms as an important clarification that such internal notes are indeed encompassed by privilege and not disclosable. We do of course agree that maintaining trust in the attorney-client privilege is important, but in this context, it was hardly a point that needed clarification.
In essence, the plaintiffs’ application for disclosure was based on two lines of argument:
- The notes were not encompassed by privilege because such fact-finding assignments do not entail the provision of legal advice
- Privilege had been waived
The second point turned on the facts and does not provide much guidance of value in other cases. It may however be worth noting that the court of appeal rejected the notion that you can waive privilege by accident. While it is true that you can construe a waiver, but it would need to be a communication that would fulfill the requirements for a valid waiver, i.e. that the recipient could reasonably understand that to be the intention.
The first line of argument concerns an interesting question on a general level. The Dispute Act Section 22-5 prohibits lawyers from giving evidence about information they have obtained in their capacity as lawyers, and obviously the legal advice they give to clients. The qualification “in their capacity as lawyers” is however material. When lawyers act in other capacities, such as for example real estate agents or brokers, the prohibition would not apply. When lawyers are instructed to conduct shipboard investigations, it is an assignment that entails both fact-finding and legal advice. Indeed, the interplay between fact-finding, the legal evaluation of what facts are relevant, and the advice provided on this basis is the reason lawyers are instructed. Thus, while the fringes of the Dispute Act Section 22-5 may include several unclarified legal issues, the status of lawyers’ notes from shipboard investigations is not one of them.
While potential litigants can, and in our opinion always could, rest assured that their correspondence with counsel is privileged, Norwegian procedural law allows for much wider disclosure on one important point. There is no litigation privilege, as one might expect with a background in the UK for example. In essence, litigation privilege in the UK entails that documents produced in contemplation of litigation are privileged. This rule means that if you appoint a surveyor to investigate and advise on the cause and extent of some incident, which may potentially give rise to litigation, the findings and advice received will be disclosable to opponents under Norwegian procedural law.
In the maritime field, insurers routinely appoint experts to provide advice following incidents such as collisions, groundings, cargo damage etc., and may be communicating with them under the assumption that such communication is privileged. It is worth noting that if any subsequent dispute is subject to Norwegian jurisdiction, that is not so.