A Client Guide - The Key Principles For Pensions Trustees And Employers

• Published date: 27 May 2021
• Subject Matter: Corporate/Commercial Law, Employment and HR, Litigation, Mediation & Arbitration, Corporate and Company Law, Retirement, Superannuation & Pensions, Trials & Appeals & Compensation, Privilege
• Law Firm: Gowling WLG
• Author: Mr Ian Gordon and Charlotte Scholes

The law of privilege gives someone the comfort of knowing they can keep certain documents confidential and not have to provide them to third parties. However, working out whether a document is privileged can be tricky. In this Insight we set out some general principles and some basic tips to help ensure that, once a document is privileged, that privilege is not later inadvertently lost.

Whether a document is privileged can be fact-specific, if in doubt please contact a member of our Pensions Disputes Team.

What is privilege?

Privilege entitles a person to withhold a document from a third party, whether that be a trustee, an employer, a court, the Pensions Regulator (tPR) or HMRC. It is an absolute right, exercisable in and outside court proceedings.

Confidentiality

A document cannot be privileged unless it is confidential so, if a privileged document ceases to be confidential, it will lose its privileged status.

The core categories of privilege

The three core categories of privilege are:

Other categories of privilege, namely, joint or common interest privilege, also exist but they are not free-standing categories of privilege but depend on a document having already attracted legal advice or litigation privilege.

The test for legal advice privilege

If you cannot answer "Yes" to any of these questions, the document was either never covered by legal advice privilege or, having once been privileged, privilege was later lost, for example, because the document ceased to be confidential.

Who is a lawyer?

To be covered by legal advice privilege, the document needs to have been a communication between a client and their lawyer.

The term 'lawyer' covers solicitors, barristers or qualified foreign lawyers, as well as in-house lawyers so long as they are acting in a legal rather than commercial capacity. Privilege also extends to trainees and paralegals acting under the supervision of a lawyer.

Who is the client?

The definition of 'the client' is likely to be interpreted restrictively by the courts to refer to those members of the organisation with authority to give instructions to lawyers and receive their advice. Therefore, care needs to be taken when disseminating advice received within an organisation in case it is later suggested that confidentiality in that advice was lost by being shown to 'non-clients'.

Was the document produced for the dominant purpose of giving and obtaining legal advice?

The court decided in The Civil Aviation Authority v Jet2.com...