Anomalies In The English Law Of Privilege: A Triumph Of Form Over Substance

As is widely recognised, and often repeated, legal professional privilege serves an important public interest. It allows parties to take professional legal advice, and to prepare for and conduct litigation, without the fear that what they say as part of that process will come back to haunt them later.

Privilege was described by Lord Hoffmann in Morgan Grenfell as a "fundamental human right" and a "necessary corollary of the right of any person to obtain skilled advice about the law". The importance of the principle is underlined by the fact that, where it applies, its protection is absolute. The court cannot weigh the public interest in maintaining privilege against the competing public interest in having a case decided on all relevant evidence. If material is privileged, it is not admissible, no matter how much evidential value it may have.

Against that background, it is all the more surprising that the question of whether privilege applies under English law often depends on fine distinctions and formalities, rather than matters of substance. This blog post will look at some of the anomalies.

The test for privilege

The requirements that must be satisfied in order to qualify for protection under either of the two main strands of privilege are well known:

Legal advice privilege applies to confidential lawyer/client communications for the purpose of giving or obtaining legal advice, regardless of whether litigation is in prospect. Litigation privilege, in contrast, applies to material prepared for the dominant purpose of litigation that is reasonably in prospect, and includes third party as well as lawyer/client communications. That may all sound straightforward. But those familiar formulae hide a multitude of difficulties.

Information from third parties

If a lawyer emails a third party (the client's accountant, say) to ask for information needed in order to advise the client, and the accountant responds, that exchange of emails isn't privileged (assuming there is no litigation in prospect). It is not a lawyer/client communication and so is not covered by legal advice privilege, even though it is (in our example) for the purpose of giving legal advice.

Equally, if the lawyer telephones the accountant to discuss the information, that communication is not privileged and either the lawyer or the accountant could be required to answer questions about it if giving evidence in subsequent proceedings. And if the lawyer takes a note of the...