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:

• Legal advice privilege: this applies to communications exchanged between a lawyer (which may include in-house counsel) and their client. The exchange must have been for the “dominant purpose” of seeking or providing legal advice.
• Litigation privilege: this protects communications between a lawyer and their client that were created for the “dominant purpose” of litigation that is adversarial in nature. It doesn’t matter if a claim had not been issued when the document was created, so long as the claim was within reasonable contemplation.

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:

• Legal advice privilege is broader in time: while litigation privilege can only be claimed over documents that were created when legal proceedings were within reasonable contemplation, legal advice privilege extends to non-contentious matters so long as the advice was provided within a legal context. Relevant (and otherwise disclosable) documents that pre-date a dispute may therefore attract legal advice privilege.
• Litigation privilege is broader in scope: legal advice privilege only applies to communications between a lawyer and their client; communications with third parties are not protected, even if they relate to exactly the same subject matter. On the other hand, litigation privilege covers communications between a litigant’s lawyer and any third party, so long as the dominant purpose test is met.

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:

• In the case of legal advice privilege, the document must have been produced for the sole or dominant purpose of giving or obtaining legal advice.
• In the case of litigation privilege, the document must have been produced for the sole or dominant purpose of conducting litigation.

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:

• Defining the client: the court interprets the word “client” very narrowly. In some organisations, only certain employees may meet this definition and, as a consequence, not all documents exchanged between it and its lawyers will attract legal advice privilege.  This narrow definition is of less relevance to litigation privilege, which extends to communications with third parties.
• Nature of the litigation: for litigation privilege to apply, the legal proceedings must be adversarial in nature – not merely investigative. If the subject of an investigation believes that adversarial proceedings will follow, they should give careful thought as to whether any documents being produced are likely to meet the dominant purpose test.
• Waiving privilege: a party may choose to waive privilege by deploying a protected document in the course of litigation. This may, however, have the unintended consequence of also waiving privilege over other related documents.  This important legal principle (known as the collateral waiver of privilege) stops litigants from cherry-picking documents for disclosure that present a one-sided picture to the court.
• Accidental disclosure: where a litigant has accidentally disclosed privileged material, it can only be deployed by their opponent with the permission of the court. When determining this, the court will consider all of the circumstances underlying the material’s disclosure.

Practical points

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

• Don’t disseminate documents any more widely than absolutely necessary: privileged documents are, by their nature, confidential. Wide circulation increases the chance that they will fall into the wrong hands.  Litigants should also remember that a document that had attracted legal advice privilege loses its protected status once it is sent to someone outside of the client / lawyer relationship.
• Label documents: privileged documents and communications should be labelled as such from the outset. Should it prove necessary, this will provide contemporaneous evidence to a court as to the reason why the document was created (although it should be noted that such labels are not treated as conclusive proof of a document’s status).  It will also help to minimise the risk of accidental dissemination or disclosure.
• Discuss privilege with your legal team: every claim is different and your legal team is based placed to advise you as to the nuances of privilege for your case. While it is important that litigants understand (and comply with) their disclosure obligations, the significance of privilege and importance of good document control should never be overlooked.

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