June 25, 2020

Legal Professional Privilege and the Risks of Collateral Waiver: PCP Capital Partners v Barclays Bank Plc


In a judgment delivered shortly before the start of the trial of the claims brought by PCP Capital Partners (“PCP”) against Barclays Bank Plc (“Barclays”), the High Court held that legal professional privilege had been waived by Barclays over all contemporaneous legal advice received relating to particular transactions in 2008 to raise capital.

The court held that certain references to legal advice in witness statements and submissions made by Barclays amounted to reliance on the advice and gave rise to a collateral waiver over all other communications involving legal advice relating to the transactions (which would otherwise have been protected as privileged).  Moreover, the fact that (unusually) certain documents held to have been relied on by Barclays had already ceased to be privileged (as a result of their deployment by the Serious Fraud Office (“SFO”) in previous criminal proceedings) did not mean that Barclays could rely on the documents in the present proceedings without it giving rise to the collateral waiver.

The judgment is not only an important reminder of the risks of collateral waiver, but also of the additional layers of complexity to protecting privileged material which can arise when the background to the civil litigation is regulatory enforcement action.

Click here to read the full client alert: Legal professional privilege and the risks of collateral waiver: PCP Capital Partners v Barclays Bank Plc.