Privilege

Question 1

who does LLP apply to?

Answer 1

• Lawyer inc. barristers, in-house and foreign lawyers, legal execs, licenses conveyances and, so long as they are properly supervised by a qualified solicitor, paralegals, trainees and secretaries
• NB: doesn’t extend to a non-lawyer (i.e. accountants) who gives legal advice

Question 1

what is LLP?

Answer 1

• Consists of consists of legal advice privilege and litigation privilege

Question 2

what is the position regarding LLP and in-house solicitors?

Answer 2

o In-house lawyer  legal advice is covered but not general advice about business or administration

Question 2

what is the position regarding privileged documents and disclosure?

Answer 2

Privileged documents are disclosable but cannot be inspected

Question 3

what is the position regarding dual purpose documents and LLP?

Answer 3

• If a document is produced for a dual purpose, it can only attract LLP if the main reason it was produced was to obtain legal advice/for litigation

Question 3

how long does privilege last for?

Answer 3

forever inc. after death

Question 4

which documents do not attract LLP?

Answer 4

• Communications for the purposes of committing fraud or crime do not attract privilege

Question 5

explain legal advice privilege

Answer 5

• Applies to confidential communications (i.e. letters, emails, attendance notes) between lawyer and client which have come into existence for the sole or dominant purpose of the communication is to seek legal advice
• Advice is not constrained to legal rights and obligations to attract LAP the solicitor can give advice about sensible action in the relevant context

Question 6

explain litigation privilege

Answer 6

Applies to confidential communications / documents created for the sole or dominant purpose of contemplated or ongoing litigation between a lawyer, client and third parties.

Question 7

give examples of litigation privilege

Answer 7

o A report from an expert obtained by a solicitor in order to advise their client on existing or contemplated litigation

o w/s obtained by a legal executive for the purpose of using as evidence

• proceedings have been issued. The solicitor gets a w/s from a third party. This would need to be disclosed but can be withheld from inspection (so put under part 2) even if the w/s goes against their case

Question 8

give examples of legal advice privilege

Answer 8

Solicitor’s instructions to a barrister for advice (and the advice) attract LAP

a document created by a third party and sent to the solicitor would not attract LAP or cc’ing a solicitor into an email doesn’t mean it attracts LAP

Question 9

who can waive privilege?

Answer 9

• Privilege is the client’s right, not the lawyers. Only the client can waive P.

Question 10

how can privilege be waived?

Answer 10

• Privilege can be waived in two ways:
  o Intentionally  necessary in relation to some document to progress the case i.e. SOC and w/s are privileged until they are served
  o Mistake  i.e. advice accidentally sent to the o/s. The receiving solicitor must return the document to the o/s and not inform their client.

Question 11

what effect does ‘without prejudice’ have?

Answer 11

so long as the document/discussion is marked as WP, WP discussions are not admissible.

Question 12

explain waiving privilege and disclosure

Answer 12

• In disclosure, privileged documents must be listed under section 2, however there is no right to inspection. Privilege may need to be waived later in the proceedings i.e. an expert report has been obtained, this wouldn’t need to be disclosed until the deadline for the exchange of expert reports

Question 13

what is the position regarding documents recording WP discussions and disclosure?

Answer 13

• Documents recording WP negotiations are disclosable and no privilege can be claimed unless there is multi-party litigation and some parties weren’t involved in the discussion