Privilege and Prejudice [15] Flashcards
Privilege and Prejudice
Define the legal doctrine of privilege? What is the essential requisite element of a privileged document? [2]
Privilege is a legal right which allows persons to resist compulsory disclosure of documents and information. The fact that a document is merely sensitive or confidential will not prevent disclosure, but qualifying privileged documents will, by their nature, be confidential.
Privileged documents do not, e.g. have to be disclosed to the other side to a litigation in a disclosure exercise.
The essential element of a privileged document is confidentiality.
Privilege and Prejudice
What two types of privilege are there? [1]
There are two types of privilege: (i) legal advice privilege; and (ii) litigation privilege.
Privilege and Prejudice
Explain how privileged status of documents might be lost? [1]
If privileged documents are disclosed (intentionally or unintentionally) then privileged status can be lost. This can include losing privilege in relation to a whole set/type of documents.
N.B. Marking documents as “confidential and privileged” helps prevent recipients circulating documents freely and waiving privilege as a result. Documents do not necessarily have to be labelled as such to benefit from privileged status, however.
Privilege and Prejudice
When will documents benefit from legal advice privilege? [1]
Legal advice privilege protects written or oral confidential communications (and/or documents which reflect such communication) between a lawyer and client for the purpose of giving legal advice.
N.B. The term ‘client’ is narrowly construed under English law to refer only to individuals who, as a matter of fact, are authorised to give instructions to and receive advice from the lawyer concerning the issue in hand.
Privilege and Prejudice
Does legal advice privilege protect communications between an accountant and their client? [1]
No. A lawyer must be involved.
Privilege and Prejudice
When will documents benefit from legal advice privilege? [4]
Litigation privilege protects:
- (i) confidential written or oral communications between client or lawyer (on the one hand) and third parties (on the other) and/or (ii) other documents created by or on behalf of the client or his lawyer; and
- which come into existence once litigation is in contemplation or has commenced; and
- which are for the dominant purpose of use in the litigation
Privilege and Prejudice
Explain the legal right of the Without Prejudice rule? [1]
The without prejudice (WP) rule will generally prevent statements made in a genuine attempt to settle an existing dispute, whether made in writing or orally, from being put before the court as evidence of admissions against the interest of the party which made them.
N.B. Where one party makes a without prejudice offer, the privilege extends to the response to the offer as well as to the offer itself, whatever the response may be (e.g. counter-offer, request for more information, etc.).
N.B. Privilege is a substantive legal right and has been recognised as such by the courts. Moreover, once privilege is established, subject to a limited number of exceptions, the right to withhold the document is an absolute right.
Privilege and Prejudice
When will Without Prejudice protection be engaged? [1]
The WP rule is only engaged when there is a genuine bona fide attempt to resolve a dispute.
N.B. WP does not apply to liability that has been admitted - it only applies to disputed liabilities.
N.B. Labelling documents/communications as being ‘Without Prejudice’ can be useful but it is not determinative. It is the substance that counts and this is assessed objectively.
Privilege and Prejudice
What does ‘Without Prejudice Save as to costs’ mean? [1]
It is important to distinguish between the label ‘Without Prejudice’ and the label ‘Without Prejudice Save As To Costs’. Communications identified as the latter can be reviewed by the court when costs awards are being considered.
Privilege and Prejudice
True or false: “It is possible for parties to extend the scope of WP communications by clear agreement so WP protection covers other documents”? [1]
True.
It is possible for parties to a dispute to agree as a matter of contract that the ambit of the Without Prejudice Rule should be extended, perhaps to cover communications that do not concern a dispute. However, there has to be a clear agreement that this is what they have decided to do. See Avonwick v Webinvest [2014] EWCA Civ 1436, where the court concluded that there was no such evidence because the communications were headed ‘Without Prejudice Subject to Contract’, which suggested that a binding agreement had not been made.
Privilege and Prejudice
Name one key circumstance where communications with WP protection would lose that protection? [1]
Inter alia, where a clear statement is made by a party in WP communications that is relied on by the other party, giving rise to an estoppel, WP protection will be lost.
In some cases the WP protection will be voided, including: (i) where documents demonstrate the fact of a concluded settlement agreement; (ii) where communications act as an aid to construing the settlement agreement that was subsequently reached; (iii) where communications evidence the fact of a delay (usually it is just the existence of the communications that needs to be referred to, not the detail within them); (iv) where documents are evidence of perjury, blackmail or other serious and unambiguous impropriety; and (v) where a clear statement is made in the without prejudice communications, that is relied on by the other party, giving rise to an estoppel
