Are lawyers’ notes from crew interviews legally privileged?

In another recent decision in the Norwegian proceedings relating to the collision between the Norwegian navy frigate “Helge Ingstad” and the oil tanker “Sola TS”, the Gulating Court of Appeal has held (LG-2021-115658) that notes taken by lawyers from crew interviews were legally privileged and such privilege had not been waived by disclosure in the proceedings of a report referencing content from those notes.

Following the collision, lawyers acting for the owners of the “Sola TS”, Twitt Navigation Limited (“Twitt”), and their insurers conducted interviews of the crew on the oil tanker.

In the proceedings that ensued, the state requested that Twitt disclose those notes. Twitt argued that they were not obliged to do so, claiming legal privilege over the notes.

In the first instance, Hordaland District Court found that Twitt had consented to disclosing the notes, thereby waiving privilege, by disclosing a report which referred to the contents of the notes. Twitt appealed the District Court’s decision and, on 13 September 2021, the Gulating Court of Appeal overturned the District Court’s decision holding that privilege had not been waived.

Were the notes privileged?

The universal principle of attorney-client privilege is reflected in section 22-5 (1) of the Norwegian Dispute Act, which prevents the courts from receiving evidence from lawyers about “something that was confided to them in their professional capacity”.

Reiterating the case law, the Court of Appeal held it is a requirement for legal privilege to attach that the information was confided to the lawyer whilst performing “work as a lawyer in the true sense” (“egentlig advokatvirksomhet”). This has to be considered on a case-by-case basis.

As a starting point, the Court of Appeal found that the information obtained by the lawyers during interviews with the crew onboard “Sola TS” had been provided to them “in their professional capacity”, acting as the legal representatives of Twitt.

The Court of Appeal then considered whether the interviews were conducted “exclusively to survey factual circumstances which could not have legal consequences”, and as such would not be considered “work as a lawyer in the true sense”, see HR-2014-1775-A. The Court of Appeal found that this was not the case as the information “could have legal consequences” and, moreover, could provide the basis for legal advice from the lawyers in connection with claims arising from the collision and the ensuing legal proceedings.

The Court of Appeal also considered the Supreme Court’s decision in HR-2019-2168-U Cheshire, where it was held that ordinary written and signed statements created with the intention of being disclosed were not covered by legal privilege, even if lawyers had been instrumental in creating them. However, on the facts of this case, the Court of Appeal found that the notes prepared by the lawyers were not intended to be disclosed, and therefore remained privileged.

Had Twitt consented to disclose the notes?

The Court of Appeal then considered whether Twitt had consented to disclose the notes, thereby waiving privilege, since they had produced a report in the proceedings which had referenced the notes, cf. section 22-5 (3) of the Dispute Act.

Whether consent was given had to be considered according to general principles of contract law. Although there are no requirements as to form, the consent must be “fairly clear, decisive and exhaustive”, and appear as a renunciation of legal privilege.

The Court of Appeal held that sharing of privileged information in itself was not sufficient to establish consent to waive legal privilege, cf. inter alia HR-2013-2652-U.

Whilst the District Court had found that consent to waive legal privilege could be inferred, citing inter alia Rt-2009-1204, the Court of Appeal distinguished the cases on the facts and found that the decision provided little guidance for the question under consideration.

The Court of Appeal then held that a report could only be seen as giving consent to disclose privileged information if the contents in the report itself were privileged, citing the aforementioned HR-2019-2168-U Cheshire.

The Court of Appeal did not decide on whether the report itself was privileged, as the disclosure of the report in any event – in the Court of Appeal’s opinion – did not fulfil the criteria of a valid consent to waive legal privilege. In reaching this conclusion, the Court of Appeal emphasised that the 17-page long report only contained two references to the interviews, and as such could not be regarded as a sufficiently clear consent to waive legal privilege for the more extensive interview notes. That the report itself was marked as privileged and confidential, could not be decisive for the question of consent to disclose other privileged documents.

Finally, the Court of Appeal held that any departure from the protection afforded under attorney-client privileged information under inter alia the Norwegian Criminal Code section 211, the Norwegian Constitution section 95 and the European Convention on Human Rights Article 6, required a clear basis.

Comment

This decision provides guidance as to the application of legal privilege in connection with marine casualties. It follows from the decision that lawyers’ notes from crew interviews are privileged unless they are intended to be disclosed, as was the case in the Supreme Court decision in HR-2019-2168-U Cheshire where formal statements had been signed by the individual crew member. Furthermore, the decision suggests that the courts will take a relatively restrictive approach to establishing consent by a party to disclose otherwise privileged information.

The decision has been appealed to the Supreme Court.

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