DISP8.14: Privilege Flashcards
What is the key test with litigation privilege
Litigation privilege will only apply when litigation was existing, pending or reasonably in prospect when documents were created
Legal advice privilege does not extend to
Commercial considerations. Only applies to the purposes of obtaining or giving legal advice.
Is tax law advice from an accountant covered by legal privilege?
No. Legal privilege only applies between a client and solicitor.
How does litigation privilege apply to communications?
Communications that are: - confidential, and
- between
(i) lawyer and client
(ii) client and a third party, or
(iii) lawyer and a third party, and
- created for the dominant purpose of obtaining, to use in litigation, such as:
(i) legal advice
(ii) evidence, or
(iii) information.
Does the label ‘without prejudice’ always create privilege?
“without prejudice” likely that it will not need to be provided for inspection. Not everything marked “without prejudice” is truly without prejudice.
For WP to apply, must have been a communication, the purpose of which was a bona fide attempt to settle a dispute.
When does mistake legal privilege apply?
When a document has been shared by mistake and the defendant thinks that they are reasonably entitled to see it. Should inform the other side and delete copies.
What are the two branches of legal professional privilege?
Legal advice privilege and litigation privilege.
Is copying a solicitor into an email sufficient for privilege?
No, it must be for the purpose of obtaining legal advice.
What does legal advice privilege cover?
Confidential communications between a solicitor and client for the purpose of giving/receiving legal advice.
What are the conditions for legal advice privilege?
Confidentiality, must relate to legal advice, includes copies, applies to in-house counsel.
Who can litigation privilege cover?
Legal adviser and client, or legal adviser/client and a third party.
What must be established to claim litigation privilege?
The dominant purpose of the document must relate to litigation that is pending or reasonably in prospect.
When does common interest privilege apply?
When privileged documents are shared with a third party with a common legal interest (e.g., insurer).
Does sharing usually waive privilege?
Yes as waives confidentiality / privilege, but not when there is a common interest.
What does “without prejudice save as to costs” mean?
Communications are privileged until judgment; then can be used to determine costs by the judge/court.
What are without prejudice communications?
Communications aimed at settling a dispute.
When can WP Communications be revealed?
To explain delay, show settlement terms, show impropriety, fraud, estoppel, or misrepresentation.
Are WP communications permanently privileged?
Yes, unless waived by both parties. Cannot be unilaterally waived. Must be waived by each party.
What does “without prejudice save as to costs” mean?
Communications are privileged until judgment; then can be used to determine costs.
How are privileged documents disclosed?
Via a disclosure statement; redacted if partially privileged.
How can privilege be waived?
By relying on the material or losing confidentiality (e.g., sharing with third parties).
Can one party unilaterally waive “without prejudice” privilege?
No, it’s a joint privilege. Must be waived together.
What is collateral waiver?
If a party waives privilege in one document, it may have to waive it in related documents.
What happens if privileged documents are disclosed by mistake?
Privilege may be lost if the other side reasonably believed they could use them.
