Attorney-client privilege for information included in contract with third parties upheld by Norwegian Supreme Court

 In its decision last week, the Appeals Committee of the Supreme Court confirmed that attorney-client privilege was intact even if the privileged information had been included in a contract and shared with a third party

Parties in civil litigation generally have an obligation to provide and give access to evidence relevant to the case (as pointed out in our previous newsletter). Not all evidence, however, is admissible before the courts. One key exception is that advice and assessments provided by an attorney to its client is subject to privilege and cannot be disclosed or presented to the courts without the client’s consent (cf. the Norwegian Dispute Act section 22-5).

In its decision this week the Supreme Court found, contrary to the Court of Appeals, that attorney-client privilege applied even though the advice in question had been included in a contract between the client and a third party.

In the underlying dispute, three home owners brought a claim for compensation against the developer of the property. The claimants had entered into contracts with two of their neighbours in the same development project, who are not parties to the dispute, to coordinate their common interests in the legal proceedings. The contracts were prepared by the claimants’ attorney, and pieces of the attorney’s advice and assessments of the case had been set out in the contract. The property developer requested disclosure of the contracts to submit them as evidence in the ongoing litigation, and argued that the claimants were obliged to disclose it.

The Supreme Court found that the claimants and their neighbours had established a relationship of collaboration in respect of the litigation and its outcome. As a consequence of this collaboration, the non-parties would necessarily gain insight into the advice and assessments provided by the claimants’ attorney – which in this case had been expressed in the contracts.

In line with previous decisions from the Supreme Court, the court noted that attorney-client privilege may apply even if the client has shared the privileged information has been with third parties. This applies where the client and the third party with whom the information has been shared, have a joint interest in the outcome of the dispute. Accordingly, the Supreme Court found that the Court of Appeals erred in its legal assessment and its decision was set aside and returned for a renewed assessment.

The decision serves to confirm the strong protection attorney-client privilege enjoys under Norwegian law, and is consistent with previous case law from the Supreme Court, for instance the decisions published in Rt-2013-1719 and Rt-2013-1336.