Legal Privilege - October 2012

The concept of legal privilege provides that certain communications between a client and his solicitor are privileged and immune from subsequent disclosure to a third party. When legal privilege has been established neither the client nor the solicitor can for any reason be compelled to disclose details of this communication.

The rationale behind this principle is that:

"it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers.... thereby inducing the client to retain the solicitor and seek his advice and encourage(s)... full and frank disclosure of the relevant circumstances to the solicitor."1

Privilege over documents covers traditional paper communications such as letters, notes and memos of conversations and documents incorporating or reproducing legal advice. It also includes items such as e-mails, voicemails, computer databases and tape recordings.

Legal professional privilege will not exist in situations where communications exist in furtherance of conduct which is considered by the courts to be criminal, fraudulent or contrary to the interests of justice.

Categories of Legal Professional Privilege

Two categories of legal professional privilege exist:

Litigation Privilege

This arises only after litigation or other adversarial proceedings have been commenced or are contemplated and it protects all documents produced for the sole or dominant purpose of the litigation in question.

Litigation privilege includes all communications between:-

(i) a solicitor and his client,

(ii) a solicitor and his non professional agent, and

(iii) a solicitor and a third party.

For litigation privilege to exist there must be a reasonable likelihood of litigation and a mere vague possibility that proceedings may arise in the future will not be sufficient. The communications must be made for the dominant purpose of advancing the prosecution or defence of the case or the seeking or giving of legal advice in connection with it.

Legal Advice Privilege

Legal advice privilege protects communications between a solicitor, acting in his professional capacity and his client, provided that the communication is confidential and for the purposes of seeking or giving legal advice.

The key difference between litigation privilege and legal advice privilege is that correspondence with an independent third party is not covered by legal advice privilege.

The area of legal advice privilege was discussed and affirmed...