Privilege: Do you really know what Documents you can protect? Part2

The decision of Three Rivers District Council v Bank of England [2004] UKHL 48 has clarified the position in respect of legal advice privilege. What is disclosure and what is legal advice privilege?

What is Disclosure?

In litigation and arbitration proceedings, all parties are generally required to disclose the existence of relevant documents to all other parties. Business confidentiality does not prevent disclosure.

What is Privilege?

Documents that are privileged do not need to be disclosed. The three most significant grounds for claiming privilege are:
 

• Legal advice privilege
• Litigation privilege
• Without prejudice communications

What is Legal Advice Privilege?

Legal advice privilege protects from disclosure, confidential communications between a solicitor and a client made for the dominant purpose of seeking or obtaining legal advice whether the matter is contentious or non–contentious. It does not cover advice given by other professionals to their clients.

Communications between a company’s employees and its legal advisers (internal or external) may not be privileged unless they are between a lawyer and a “client” who will need to be defined. For example, if a managing director asks a solicitor for advice and then asks an employee who has no direct contact with the solicitor to prepare a memo on the particular problem, the memo may not be privileged.

What is Litigation Privilege?

Litigation Privilege extends to protect a wider range of communications. It protects from disclosure those communications that are brought into existence with the dominant purpose of being used in actual, or contemplated litigation.

Litigation privilege covers adversarial and inquisitorial proceedings and attaches to communications with third parties, for example witnesses and experts.

Without Prejudice Communications

Admissions made in genuine settlement negotiations cannot be relied upon in legal proceedings to the detriment of the party making the admission. Correspondence should be marked “without prejudice”, however a document which is not written for settlement purposes will not be privileged just because it is marked “without prejudice”.

Without Prejudice communication cannot be disclosed to a Judge or an Arbitrator. Communications written “ without prejudice save as to costs” are a limited exception and can be shown to the Judge or the Arbitrator when considering the question of costs.

Practical Tips

• Before creating any “document” on a sensitive or contentious issue, ask yourself, “do I need to create this document?” A “document” is anything in which information is recorded:

• Letters
• Emails
• Agreements
• Computer documents
• Telephone tapes
• Voicemails
• Diary entries
• Text messages
• Videos
• CD Rom

• Contact your solicitor before creating any document relating to a sensitive or contentious issue.
• Remember that usually, only communications with your solicitor are privileged.
• Identify a person or team of people to be involved in instructing your solicitor. All key relevant people should be included to ensure that communications with them are privileged.
• Remember that there is no such thing as “private”, “ personal”, “confidential”, “secret” or “ off the record” communication. If it is relevant, recorded in any form and not privileged, you have to disclose it.

Jill Lawton is an associate solicitor at Clarkson Wright & Jakes. If you require advice on this topic, please contact her on 01689 887855 or email her at jill.lawton@cwj.co.uk.