One of the common conversations that litigation lawyers have with their clients is around legal professional privilege. Until you are involved in litigation, it might not be a phrase you’ve heard before.

In simple terms, legal professional privilege protects sensitive and confidential communications and documents between a lawyer and their client from being disclosed.  When privilege has been established, there is an absolute right to withhold those communications and documents from a third party, unless the client gives permission. Legal professional privilege can include oral or written communications and documents.

Broadly there are two types of privilege:

• Legal advice privilege; and
• Litigation privilege.

There are strict rules for when each type can be used, lawyers will always be involved concerning the use of legal advice privilege and only in rare circumstances (not discussed in this blog) will they not be involved in the use of litigation privilege. As such it is important to first consider who is a “lawyer”, especially when considering in-house lawyers. English law does not draw any distinction between in-house lawyers and lawyers in private practice. While under English law it is well established that in-house lawyers are as much a “lawyer” for the purpose of privilege as one in private practice, in other jurisdictions in-house lawyers may not be afforded this privilege as they are not deemed as being sufficiently independent. For the purposes of this blog and to keep things simple we are referring to lawyers in private practice.

Legal advice privilege

As the name suggests, legal advice privilege exists when a lawyer provides confidential advice to a client for the dominant purpose of giving or receiving legal advice. Essentially legal advice privilege allows lawyers and their clients to confidentially discuss their matters, for example the strengths and weaknesses of their case and options for a resolution, without fear of a third party reviewing that advice. Legal advice privilege applies to both contentious and non-contentious legal advice between the lawyer and the client, so long as the dominant purpose of those communications is to seek or receive legal advice.  There is a requirement for the communications to be between the lawyer and the client and communications with third parties would not be protected.

The privilege is owned by the client (not the lawyer) unless or until it is waived, at which point privilege will be lost and the relevant communications or documents may be disclosable to a third party. If the client passes away, legal advice privilege survives the client. In the case of a company, legal advice privilege survives the dissolution of a company.  

What is litigation privilege?

For litigation privilege to apply, the communications or documents must be created between a lawyer and their client with the dominant purpose of the communications being used in connection with contemplated or ongoing litigation. As with legal advice privilege generally, the communications or documents must be confidential.

When considering the “dominant purpose” of the communications, a court will consider two factors: 1. Whether the statements within those communications were prepared to enable the lawyer to advise their client on the litigation and 2. the evidence put to the court that the communications were prepared for a particular purpose.

Litigation privilege becomes particularly relevant during the disclosure phase of a legal claim. Disclosure is an important stage of a claim where each party shares with the other party a list of documents that exist or have existed and are in a party’s control. Copies of those documents are available for inspection. So, for example in a typical claim, you might expect contracts, emails and other documents to be disclosed. Legal advice would not be included in that disclosure.

Therefore, parties in litigation should have some comfort that confidential advice from their solicitor will remain confidential. However, it is important to carefully, and consciously retain that confidentiality and avoid inadvertent disclosure of such communications, otherwise privilege will be lost.