Other
Legal Professional Privilege Notes
Summary of key principles and flowcharts
[Show more]
Seller
Follow
Content preview
Legal Professional Privilege (Civil)Types of privilege
1. Legal professional privilege (includes 2 heads: legal advice privilege and litigation privilege)
2. Without prejudice protection
3. Privilege against self-incrimination
4. Public interest immunity (not a privilege BUT an obligation to withhold from disclosure and
inspection documents injurious to the public interest – a DUTY, NOT a right)
(syllabus ONLY covers LPP and WP)
What is disclosure? Privileged documents
• The exchange of the list of documents – saying that a MUST be disclosed to the other
document exists side (albeit in part 2 of the list of
The list of documents documents)
Divided into 3 sections
Section What is in that section? BUT à privileged from inspection
1 Disclosure of all the documents which you do not (other side cannot see them)
object to being inspected
2 Documents which the party making disclosure claims Exception: documents covered by
the other parties are not entitled to see/inspect (i.e., public interest immunity would X
due to LPP) even appear on the list of
And reasons for objection to inspection documents
3 List of documents which are no longer in your control
Can privilege be waived? YES
Legal professional privilege
Who’s right?
• The client’s right
• An absolute right which survives the death of an individual client/dissolution of a client
company
o Ensures for the benefit of the successor in title of the dead party/dissolved company
o Exception = Bankrupt documents ≠ property that becomes vested in trustees in
bankruptcy - cannot deploy under s.31(1) Insolvency Act to waive privilege
Rationale = Fundamental right to effective legal advice
As Lord Hoffmann put it in R (Morgan Grenfell & Co Limited) v Special Commissioner of Income
Tax [2002] UKHL 2:
“… [Legal professional privilege] is a fundamental human right long established in the common
law. It is a corollary of the right of any person to obtain skilled advice about the law. Such advice
cannot be effectively obtained unless the client is able to put all the facts before the adviser
without fear that they may afterwards be disclosed and used to his prejudice.”
Courts will be swift to uphold it!
Legal professional privilege generally
• Doesn’t cover an original document, even IF obtained by a party to litigation /their legal adviser for
purposes of litigation, IF the document has NOT come into existence for the purposes of the litigation
but is already in existence before the litigation is contemplated or commenced
• Just because a pre-existing document is handed to solicitor for purpose of litigation doesn’t make it
privileged
o ONLY if the document is prepared for that purpose, covered
, (1) Legal advice privilege à protects confidential communications btw a legal rep & client made for the
giving/receiving of legal advice
• Applies whether or NOT litigation is contemplated/pending
• Purpose = ensure client gets legal advice in complete confidence
• Other parties only entitled to know the content of such communications IF client waives privilege
TEST = looking at the dominant purpose of the whole communication, has the person claiming LAP shown that the
relevant document or communication was created/sent for the dominant purpose of obtaining legal advice?
(Jet2 case)
à whether privilege attached is tbd on basis of the particular docs and NOT simply the brief/role of the lawyer
à IF the legal and non-legal can be EASILY identified à the parts covered by LPP are NOT disclosable and
redactable + the rest disclosable
Exception: communications in furtherance of CRIME or FRAUD
What is covered? What is NOT covered?
• Communications made in the legal context e.g., orally/in • A lawyer’s highlighting/underlining –
documents of except in unlikely event that this will
o a client giving the legal advisor info wanting to reveal the trend of advice being given
get legal advice • Does NOT extend to ALL
o a legal advisor communicating advice to the communications btw a person and their
client lawyer for whatever purposes – must
§ telling the client the law be 1) confidential, 2) dominant
§ advice on what should prudently and sensibly purposes must be for obtaining legal
be done in the relevant legal context advice
§ presentational advice on evidence to be
placed before a private inquiry Does privilege attach to copies of
NB: documents?
• Where information is passed by the solicitor or client to
• only IF it was already privileged à does
the other as part of a process aimed at keeping both
informed, so that advice may be sought and given, NOT become privileged simply bc copies
privilege will attach were provided to solicitor to provide advice
• Not confined to advice concerning legal rights and • A document that was not privileged when
obligations it was made does not generally become
• Covers information the solicitor received in a privileged by enclosing it when seeking
professional capacity from a 3P and which they convey legal advice
to their client • exception: if a compilation of non-
• Covers lawyer-client communications which are privileged documents by lawyer would
internally circulated documents/part of documents indicate/give away the trend of advice
revealing such communications, whatever the purpose which ought to be privileged
the document was made for o If a solicitors copies or
assembles a selection of
Who constitutes a ‘lawyer’?
unprivileged third party docs,
• lawyers in private practice those selections will be
• in-house lawyers privileged ONLY IF its
When is a communication NOT confidential? production would afford a clue to
• Privilege does not extend to a communication taking the advice being tendered.
place in the presence of the opposite party/with the § Does NOT extend to a
opposite party OR in circs where there could be NO client’s own unprivileged
expectation of confidentiality (i.e., documents in the docs;
public domain) § but if production of such
selection is sought,
matter for the court’s
What if the client is a company? Which communications are
discretion whether to
privileged then? order production.
• Then for the purpose of privilege, the client = only those • need to disclose versions of copies (CPR
employees duly authorised by the company by the r31.9)
company seek and receive legal advice from the client’s • same principles apply to translations
lawyers who are the ‘client’
o Usually the directors – NOT any employee
authorised to speak directly to the lawyer
, (2) Litigation privilege à protects confidential communications btw a professional legal advisor &/or client and
a 3P
TEST = Applies where sole/dominant purpose in creating the document or making the communication is to use it
or its contents to get legal advice/assistance in connection with OR in conduct with litigation which, at the time, was
at least reasonably in prospect
à immaterial whether litigation is contemplated/actually takes place
Elements:
• confidential communication
• between third party and either the lawyer or the client
• dominant purpose
• to use the document / its contents to obtain legal advice or to help in litigation
• litigation must be pending or reasonably in prospect
What is typically covered? When will it be difficult to prove
• Experts reports for use in litigation the dominant purpose test?
• Witness statements prepared for litigation (may include witness • Where docs have come into
statements from a client company's employees) existence for >1 purpose
• If there are two purposes
• Solicitors' correspondence with witnesses and experts
behind drawing up a document,
• Solicitors' correspondence seeking evidence such as:
• Drafts of court documents o using it to help in the
• Materials for the brief conduct of
• Documents obtained by solicitor to help them defend/prosecute a contemplated litigation;
claim OR give advice with reference to existing/contemplated liti and
o using it to identify the
Not privileged docs: cause of (say) an
• copies of unprivileged docs (eg letters) accident to assist in
• Docs which come into existence for some other purpose, accident prevention
o They do not subsequently become privileged simply because • Dominant = dominant!
they are sent to a lawyer as part of their instructions. o If 2 purposes are equal
o Eg, no privilege for a copy of an affidavit taken for purposes à neither is dominant
of legal advice when the original is not privileged. à must be disclosed
and does not fall within
Who has the prove that the dominant purpose test is satisfied? litigation privilege
• The party claiming privilege o Document is ONLY
• The dominant purpose must be that of the person commissioning protected if there was a
the document, not necessarily that of the author ‘clear paramountcy’ in
the intention to seek
When is the dominant purpose test judged? legal advice CF any
• The time the document is created other reasons for
• Its status CANNOT be affected by any subsequent use to which the drawing up the doc
doc is put
E.g., accident reports
• If they are created
Example: An expert’s report. SPECIFICALLY to obtain legal
• At the disclosure stage (and assuming the dominant purpose test is advice about resisting a future
met), such a report would be protected from inspection by the other claim so that the dominant
parties. purpose is use in litigation à
• Can be useful when litigants receive an unhelpful report from their the document will be privileged
own expert.
• Litigants will be required before trial to disclose the evidence • If main purpose = avoidance of
(including the expert evidence) on which they propose to rely. BUT similar accidents in the future à
a litigant who does not want to rely on such a privileged document, the report will NOT be
can bin it privileged, even if a subsidiary
• In effect, the party seeking to adduce the evidence must waive his purpose might be the report’s
privilege in such information, before (not merely as) the evidence is usefulness wrt to future
adduced. litigation
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller sherlenecheah. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for £7.99. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
81849 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy revision notes and other study material for 14 years now