Legal professional privilege

In England and Wales litigants are generally required to provide disclosure, where documents of relevance to the claim are revealed to their opponent.  While this will inevitably include material that a litigant doesn’t want their opponent to see, disclosure is a strict and continuing duty, with very few exceptions. There is one very important caveat: privilege.

What is privilege?

Privilege allows a litigant to withhold confidential documents from their opponent and the court.  There are two main types:

Litigants may also be entitled to claim other types of privilege, such as that arising from a common interest with a third party.  This note focuses on legal advice privilege and litigation privilege only.

What’s the difference?

On a practical level, there are two main differences:

Dominant purpose

The court acknowledges that documents are often produced for more than one purpose; for example, a company may prepare an internal report on the circumstances underlying a legal claim both for the benefit of its board and in order to brief its legal team.  Privilege will therefore only attach to a document if it meets the “dominant purpose” test:

When deciding whether or not privilege applies, the court will examine the contemporaneous evidence with a view to ascertaining why the document was created.

Common pitfalls of privilege

Privilege is a complex legal principle, which is constantly evolving.  While its application will always depend on the underlying facts of any given case, some common pitfalls are as follows:

Practical points

If a dispute is within contemplation, we would suggest that you take the following steps:

For more information on how we can support you, please contact one of our dispute resolution solicitors below.

Our Dispute Resolution Team

Unsure who to contact? Make a general enquiry:

Newbury Thatcham Maidenhead London Windsor Swindon
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