Understanding Privilege

Legal Professional Privilege

Privilege is a right, recognised under common law, which allows documents (or other forms of communication) to be withheld from disclosure during the course of litigation or certain investigations (such as those conducted by the European Commission).

The most common type of privilege is Legal Professional Privilege which can then be further divided into two sub-types:

Legal Advice Privilege - protects confidential lawyer-client communications concerning legal advice Litigation Privilege - protects confidential communications made in preparation of litigation The diagram below demonstrates how to determine whether an external communication is covered by one or both forms of legal professional privilege and therefore whether it should be disclosed.

Legal Professional Privilege: Is my External Communication Disclosable?

Internal Communications

Employee creation of documents - Internal documents created by employees of the client in order to provide information to legal advisors will not be subject to legal advice privilege; however the communications may be covered by litigation privilege, providing the relevant test is satisfied. Dissemination of legal advice - A document attracting legal advice privilege that is then copied, repeated or referred to in internal documents will generally retain its privilege providing that the new document is produced for the purpose of communicating the advice so it can be used to reach a decision. Retaining Privilege

Where only part of a communication is privileged (such as a single email within a chain) the privileged information may be redacted before the document is disclosed. Even where a communication is privileged, if it is subsequently disclosed then generally it will lose privilege unless one of the following can be established:

Restricted waiver of privilege - Privilege can be retained against the rest of the world if a document is identified as privileged and shared with a party on confidential terms for a specific purpose, such as an audit. Joint interest privilege - Where multiple parties have instructed the same solicitor or have a joint interest in the subject matter of a privileged communication (such as a company and its shareholders, or trustees and the beneficiaries under the trust) these parties may share documents and still retain privilege against the rest of the world. Common interest privilege - Where parties giving and receiving disclosure share a common...