The issue in the Federal Court decision was whether TCIP was a legitimate application of solicitor-client privilege as being reconcilable with Supreme Court decisions holding loss of privilege on disclosure of privileged contents, and whether TCIP had a credible policy foundation when it sustained commercial agreements that required the concealment of shared legal discussions for their enablement.
Articles and law programs were issues were raised questioning the correctness of the Federal Court of Appeal decision include: Resolving the debate on transactional common interest privilege; two questions, Gay, Alexander, Lawyer’s Daily, November 27, 2019; Transactional Common Interest Privilege Revisited: Iggillis in the Federal Court of Appeal, Gay, Alexander, The Advocates’ Quarterly Vol. 52, 2019, 275-293; Avoiding Pitfalls in Common Interest Privilege, OBA Civil Litigation Program, January 30, 2023.
For those interested in TCIP and with a subscription to the Lawyer’s Daily, the most precise statement of issues and unresolved problems outstanding from the FCA decision, is to be set out in Mr. Gay’s “Resolving the Debate” article referred to above.
The two decisions may be accessed below:
Peter Annis Dispute Resolution 