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Legal professional privilege – what is it and when does it apply?

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1st June, 2021

To summarise, legal professional privilege entitles an individual to withhold written or oral evidence from the court or any other third party.

This evidence can be withheld provided that certain conditions are met and only if the evidence was created for one of the certain specific purposes that legal privilege applies to.

If a document or other piece of evidence is privileged, then it cannot be required to be disclosed to a third party or brought into court proceedings. Legal privilege essentially renders the document confidential to the holder and provides it with privacy and protection.

What are the main types of legal professional privilege?

There are two main types of legal professional privilege that are relied on:

  1. Legal advice privilege; and
  2. Litigation privilege.

Legal advice privilege applies to communications between a lawyer and their client that are created for the sole or dominant purpose of giving or receiving legal advice.

An example of where legal advice privilege would apply is where a solicitor provides their client with a letter of advice regarding a disciplinary issue that they are having at work. As this document was created for the sole purpose of giving legal advice, this document would be classed as privileged and would be confidential to the holder.

Litigation privilege applies where a document or other communication is created for the sole or dominant purpose of giving or obtaining information or legal advice in connection with current or contemplated litigation.

An example of where litigation privilege would apply is where a solicitor provides their client with a letter of advice regarding the prospects of success of a claim because the client has received notification from an employee or former employee that they will bring an employment tribunal claim if the matter is not resolved to their satisfaction. As this document was created for the sole purpose of giving legal advice in connection with contemplated litigation, this document would be classed as privileged and would be afforded the protection that comes with that. It is important to note that litigation privilege applies to any communication created for the purpose of bringing, avoiding, settling or defending litigation.

It is important to note that legal advice privilege is only applicable if the legal advice is given by a qualified legal professional such as a solicitor or a barrister. The same privilege does not apply to any advice provided by HR professionals or consultants, and any advice given in this manner would not be afforded the same protection.

Can you disclose privileged documents?

The basic position is that when a document is privileged, it is confidential, and it cannot be disclosed to a court or a third party. It is the recipient of the advice that holds the protection in respect of the privileged document, and only the recipient that can waive the privilege of the document.

This privilege can be waived by the holder of it though if it could support their case, although doing so could result in the risk that other relevant documents that are privileged may lose their protection too. Privilege can also be waived accidentally by doing such things as forwarding a protected document, sharing the information in it or giving a copy of it to someone else. Generally, where privilege is waived for one document in a sequence of documents, then the rest of the documents in that sequence relating to a specific issue will lose their protection too.

In the recent case of Watson v Hilary Meredith Solicitors Limited, the Respondent disclosed privileged documents relevant to two specific matters. The Claimant then sought wider disclosure of privileged documentation not relevant to the two specific matters, which was rejected by the EAT. The EAT confirmed that waiving privilege on one specific matter does not waive it on all matters.

If you have any queries or concerns regarding legal professional privilege or the disclosure of documents, please contact the experienced employment team at Aaron and Partners for their assistance.

Debbie Coyne

Employment

Senior Associate
Email: [email protected]
Tel: 01244 405 537 / 07870 365 050

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