Joint Defence Privilege.
Joint Defence Privilege (Common Interest Privilege)
Joint Defence Privilege (JDP)—also known as Common Interest Privilege—is an extension of legal professional privilege (attorney–client privilege and/or litigation privilege). It allows two or more parties who share a common legal interest to exchange privileged information without waiving that privilege against third parties.
It most often arises in multi-defendant litigation, regulatory investigations, or transactions where parties face a shared legal risk.
1. Concept and Rationale
Ordinarily, privileged communications lose protection if disclosed to a third party. However, under Joint Defence Privilege:
Parties sharing a common legal interest
May exchange privileged communications
Without waiving privilege
Provided the communication is made to advance that shared legal interest.
The doctrine promotes:
Efficient coordination of defence strategy
Full and frank legal communication
Fair administration of justice
2. Essential Requirements
Courts generally require:
(1) Existence of a Common Legal Interest
The interest must be legal, not merely commercial.
It typically arises in:
Civil litigation
Criminal proceedings
Regulatory investigations
(2) Communications Must Be Privileged
The underlying communication must independently qualify as:
Attorney–client privileged, or
Litigation privileged.
(3) Furtherance of the Common Legal Strategy
The communication must be made to advance the shared legal objective.
(4) No Adverse Interest at the Time
Parties must not be adversaries regarding the subject matter of the communication.
3. Types of Joint Defence Arrangements
Formal Joint Defence Agreement (JDA)
Written agreement among parties
Defines scope and confidentiality
Common in corporate litigation
Informal Common Interest Arrangement
No written agreement required
Courts look at conduct and circumstances
4. Distinction from Attorney–Client Privilege
| Attorney–Client Privilege | Joint Defence Privilege |
|---|---|
| Between one client and lawyer | Between multiple parties sharing legal interest |
| Waived if shared with third party | Not waived if shared within common legal interest |
| Bilateral | Multilateral |
5. Important Case Laws
1. Chahoon v. Commonwealth
Holding: Recognized early form of joint defence principle.
Significance: Established that co-defendants may share information in preparation of a common defence without waiving privilege.
2. Schmitt v. Emery
Holding: Privileged communications remain protected when shared among parties with identical legal interests.
Significance: Early articulation of the common interest doctrine in civil matters.
3. Hunydee v. United States
Holding: Communications among co-defendants and counsel in criminal proceedings were protected.
Significance: Clarified application in criminal joint defence contexts.
4. United States v. Schwimmer
Holding: Common interest privilege applies even when litigation is not yet pending, provided legal interests are aligned.
Significance: Expanded doctrine beyond active litigation.
5. In re Teleglobe Communications Corp.
Holding: Defined scope of common interest doctrine in corporate group settings.
Significance: Distinguished between joint representation and common interest arrangements.
6. Arbuthnot Latham & Co Ltd v. Trafalgar Holdings Ltd
Holding: English courts recognized that parties sharing a common legal interest can exchange privileged material without waiver.
Significance: Affirmed doctrine in English common law.
7. Buttes Gas and Oil Co v Hammer (No 3)
Holding: Confirmed common interest privilege in English law.
Significance: Clarified that legal interest—not mere commercial alignment—is required.
6. Scope in Criminal vs Civil Matters
Criminal Proceedings
Common among co-accused
Permits strategic coordination
Does not override right to conflict-free counsel
Civil Litigation
Used in shareholder disputes
Corporate investigations
Regulatory defence strategies
7. Limitations
No protection for purely commercial discussions
No protection where interests later become adverse
Cannot shield communications made in furtherance of fraud (crime–fraud exception)
Scope interpreted narrowly in some jurisdictions
8. Practical Importance
In complex litigation (antitrust, corporate fraud, securities class actions):
Reduces duplication of legal effort
Encourages coordinated defence
Protects shared litigation strategy
Maintains confidentiality
9. Conclusion
Joint Defence Privilege is a crucial procedural doctrine that balances:
The confidentiality of legal advice
The practical need for coordinated defence
The prevention of unfair waiver
Its application depends heavily on jurisdictional nuances and judicial interpretation, but the central requirement remains constant: a genuine common legal interest, not merely a shared commercial objective.
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