Cutting through the legalese: Legal Professional Privilege

Legal Professional Privilege (Privilege) entitles a party to withhold evidence from production to a third party, an opponent to proceedings, or the court. Once Privilege has been established, it’s an absolute right to withhold the document in question.

It is generally accepted that Privilege cannot be claimed unless the evidence in question is confidential, so where the communications or the document has ceased to be confidential the document containing it can no longer be privileged. For the same reason, communication between opposing parties cannot be subject to Privilege (unless they are on a “without prejudice” basis).

There are 2 main types of Privilege:
• Legal advice privilege, this protects confidential communications between the legal professional and the client provided that the communication is providing or receiving legal advice.  It does not protect communication between third parties.
• Litigation privilege, this protects confidential communications or evidence between legal professional, clients and third parties made for the purpose of litigation, whether such litigation is actual or pending.

The underlying purpose of Privilege is to allow a party to obtain legal advice without comprising his position with the opponent. The legal advice can come from any member of the legal profession including, solicitors, barristers, in-house lawyers, legal executives and trainee solicitors.

Privilege belongs to the client and it is, therefore, only the client, or their legal representative (with authority) who can waive Privilege.

In litigation, Privilege entitles a party to withhold inspection of the Privileged document, it does not provide the right not to “disclose” the document. The Privileged document must be included in the list of documents sent to the other side for inspection. Section 31.10(4) of the Civil Procedure Rules provides that the list of documents must indicate “those documents in respect of which the party claims a right or duty to withhold inspection”. Section 31.19(3) goes on to state that “A person who wishes to claim that he has a right or duty to withhold inspection of a document, or part of a document, must state in writing that he has a duty”.

Below is a flow chart to assist in determining whether or not a document is covered by Privilege:

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.